Prison Beards Get Backing of Bishops, Ex-Cons and Tocqueville

In March, the Supreme Court granted the handwritten, pro se cert petition of a Muslim prisoner who wants to grow a 1/2 inch beard in accordance with his religious beliefs.

One problem: petitioner Gregory Holt, aka Abdul Maalik Muhammad, doesn't have a skin disease.

That's the only way the Arkansas Department of Correction would grant an inmate an exception from its strict, "no beard" grooming policy. The DOC says the rule is necessary to make it harder for inmates to change their appearance in the event of an escape and to curb the smuggling of contraband.

But Holt says that federal law is on his side. He argues that the policy violates the Religious Land Use and Institutionalized Persons Act, which prohibits the government from imposing a "substantial burden" on a person's religious exercise unless it is the "least restrictive means" to further a "compelling government interest."

Briefs supporting Holt have poured in, including a number from religious organizations that back the beard.

Christian and Jewish groups; Sikhs and Muslims; American Indians—all of them have joined together to speak on Holt's behalf.

Some of the briefs focus on the historical role that religion has played in the American penal system.

The brief filed by the U.S. Conference of Catholic Bishops and others, cites Alexis de Tocqueville for the proposition that religion is " 'one of the fundamental elements of discipline and reformation' in newly built American prisons."

Other nonreligious groups focus on the reduced recidivism rates attributed to religious activity while in prison.

A brief filed by a group of sociologists points to a study that found "prisoners who attended ten or more Bible studies during a one-year period prior to release—less than one per month—were 27% less likely than prisoners who did not attend . . . to have been arrested one year after release."

The brief calls secular programs designed to reduce recidivism "effectively worthless," reducing recidivism rates by only 5 to 10%.

A brief by five ex-cons—locked up for crimes including armed robbery, drug offenses and sex crimes—tells how developing Christian, Jewish or Muslim beliefs while in prison helped them become "upstanding citizens."

Amicus briefs supporting the DOC will be in by August, and the case will be heard by the Supreme Court next term.

In the meantime, a new controversy is casting a five o'clock shadow over the case. Holt's recently acquired counsel has become embroiled in a controversy of his own.

As reported in Slate, well-known authority on religion and the law Douglas Laycock, of the University of Virginia School of Law, has been receiving some unwanted attention from the LGBT community. A Freedom of Information Act request by a pair of activists sought e-mails and phone records after Laycock wrote a paper seeking to clarify the scope of a controversial Arizona law that would have allowed businesses to opt-out of anti-discrimination laws.

The request and the attacks levied against Laycock are intriguing given the professor's reputation as an equal opportunity offender when it comes to religious freedoms. A quick look at some of the cases he has been involved in reveals the absence of a traditional left-right worldview.

Just this term, Laycock argued on behalf of a Jewish woman and an atheist who challenged a suburban town's practice of inviting predominately Christian clergy to begin its town board meetings in Town of Greece v. Galloway (82 U.S.L.W. 1652). Laycock lost that case after the Supreme Court handed down an ideologically divided 5-4 opinion that received significant praise from most of the political right.

On the other hand, he also represented a Lutheran school arguing that religious organizations should be exempt from retaliatory termination claims brought under anti-discrimination laws in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (80 U.S.L.W. 926). And in Arizona Christian School Tuition Organization v. Winn (79 U.S.L.W. 2303), he filed an amicus brief supporting an Arizona law that provided dollar-for-dollar tax credits for contributions to organizations that provide scholarships to private schools—many of which were religious schools.

But in Salazar v. Buono (78 U.S.L.W. 1686), Laycock filed an amicus brief on behalf of Muslim veterans who supported taking down a government-sponsored cross serving as a veterans' memorial.

When you think about it, given his ping ponging between left and right in these kinds of politically charged cases, I can see why those activists might want to take a look at his inbox—it must be anything but boring.