Religious liberties are one of only a few constitutional rights prisoners retain upon entering confinement. However, even these rights are limited. American prisons have systemic safety and tracking issues which must be considered in analyzing prisoner requests for accommodations for religion. Courts across the country have struggled with this issue for decades and, unfortunately for prisoners, nearly absolute deference has been afforded to prisons to deny religious accommodations – until recently.

The United States Supreme Court’s long-standing precedent on prisoner religious accommodations was that prison officials, rather than courts, are best equipped to “deal with the increasingly urgent problems of prison administration,”1 and determine what is a compelling state interest in order to “maintain good order, security and discipline.”2 Thus, the Supreme Court has afforded prison officials great deference concerning issues of prison safety and security. However, courts have allowed this deference to serve as a substitute for evidence.3 In many scenarios, prisoners have not been afforded the “expansive protection for religious liberty” provided by the Religious Land Use and Institutionalized Person Act (RLUIPA).4

However, the future may be brighter for inmates faced with restrictions that conflict with their religious practices. In 2015, the Supreme Court decided Holt v. Hobbs, which has charted a new course for balancing religious accommodations for inmates and prison security concerns, in addition to providing further explanation for the requirements for prison officials to receive deference within the RLUIPA framework.

RELIGIOUS FREEDOM AND PRISON SAFETY BEFORE HOLT
Discussions regarding the relationship between prison safety and the religious freedom of prisoners became particularly relevant in the wake of Employment Division, Department of Human Resources of Oregon v. Smith, when the court abandoned the Sherbert Test, which considered whether “some compelling state interest…justifie[d] the substantial infringement of [an individual’s] First Amendment right,”5 for a narrower test which held “neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment.”6 Congress responded by enacting the Religious Freedom Restoration Act (RFRA) of 1993 to extend statutory rights that expanded the religious liberties previously provided under the Sherbert Test. In addition to nullifying Smith’s “generally applicable law” caveat, the RFRA added to the Sherbert Test by requiring the government to demonstrate “application of the burden to the person … is the least restrictive means of furthering that compelling governmental interest.”7 Congress depended on Section 5 of the 14th Amendment to impose the RFRA’s requirements on the states. However, in City of Boerne v. Flores, the court held the RFRA “exceed[s] Congress’s powers under that provision.”8

In response, Congress enacted the RLUIPA in order to “preserve the right of prisoners to raise religious liberty claims.”9 Passed under Congress’ commerce and spending powers, this statute “imposes the same general test as the RFRA but on a more limited category of governmental actions.”10 The RLUIPA applies “only to land use regulations and religious exercise of inmates.”11 Additionally, in an effort to branch off from First Amendment case law, RLUIPA broadened the RFRA’s definition of the “exercise of religion.” While the RFRA “defin[ed] ‘exercise of religion’ as ‘the exercise of religion under the First Amendment,’…Congress deleted [this] reference…and defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’”12 Despite several few differences, RLUIPA utilizes the same standard of review as the RFRA:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution…even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.13

While the court does “not doubt that cost may be an important factor in the least-restrictive means analysis,”14 it acknowledges RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”15

Case law has provided further interpretation of RLUIPA’s application to prisoners. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held the RLUIPA “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.”16 The Burwell court emphasized a prisoner’s request for an accommodation “must be sincerely based on a religious belief and not some other motivation.” Under RLUIPA, the petitioner not only bears the burden of showing “the relevant exercise of religion is grounded in a sincerely held religious belief,” but also, “the burden of proving that [the government’s policy] substantially burdened that exercise of religion.”17 Once a plaintiff meets his burden, “the onus shifts to the government to show that the burden furthers a compelling governmental interest and that the burden is the least restrictive means of achieving that compelling interest.”18 The court stressed in Cutter v. Wilkinson that due deference should be afforded to “the experience and expertise of prison and jail administrators.”19 This deference, however, is limited, and “policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act’s requirements.”20 Since Cutter, courts have struggled to determine the level of deference that should be afforded to prison officials. However, the court’s opinion in Holt v. Hobbs has shed much needed light on the issue.

BACKGROUND OF HOLT
Gregory Holt, also known as Abdul Malik Muhammad, was incarcerated at the Arkansas Department of Corrections (department).21 The department’s grooming policy did not allow inmates to grow beards, but contained an exception for inmates with a specific dermatological condition who were allowed to grow beards up to one-quarter inch.22 As a devout Muslim, Holt sought an exemption from this policy for religious reasons.23 Even though his faith prohibited him from trimming his beard, Holt was willing to compromise and grow his beard only to one-half inch.24 Prison officials refused his proposal and warned Holt, “if [he] chose to disobey, [he would] suffer the consequences.”25 Holt filed suit in federal district court.

The magistrate judge recommended to the district court that Holt’s complaint should be dismissed on the basis prison officials are accorded deference on security matters.26 The district judge adopted this recommendation and dismissed Holt’s complaint and the Court of Appeals for the 8thCircuit affirmed the decision.27 Holt appealed to the U.S. Supreme Court and the court granted certiorari to decide whether the lower courts placed too much emphasis on the deference owed to prison officials and erred in dismissing the case.28

SUPREME COURT’S DECISION IN HOLT
The Supreme Court began its analysis by determining whether Holt satisfied his burden of proof by showing his desire to leave his beard untrimmed “[was] grounded in a sincerely held religious belief that was substantially burdened by Department’s grooming policy.”29 The department did not deny the sincerity of Holt’s belief.30 The Supreme Court has defined a “substantial burden” as “either compelling an individual to do that which violates his or her religious beliefs or prohibiting an individual from that which is mandated by his or her religious beliefs.”31 The Supreme Court held the department’s grooming policy substantially burdened Holt’s religious exercise by requiring him to choose between shaving his beard and facing punishment. After Holt met his burden of proof, the burden shifted to the department to prove prohibiting Holt from growing a one-half inch beard was the least restrictive means of furthering the department’s stated interests to prevent the flow of contraband into their facilities and prevent prisoners from disguising their identities.32

Even though the court agreed prisons have a compelling interest in preventing the flow of contraband into prisons and in quickly identifying prisoners by not allowing facial hair, they were not convinced that the department’s grooming policy was the least compelling means by which to further this interest.33 At an evidentiary hearing, the department provided two witnesses who testified inmates could hide contraband in a one-half inch beard.34 Neither witness, however, could recall an incident where this had occurred in any prison, including their own.35 Despite overseeing the beard lengths of those inmates permitted to have one-fourth inch beards, the department worried it would “be unable to monitor the length of [Holt’s] beard to ensure that it did not exceed one-half inch.”36 The court was unconvinced by this argument, stating the department “offered no sound reason why hair, clothing, and ¼-inch beards can be searched but ½-inch beards cannot.”37 The department also argued prison guards could be harmed if a razor was concealed in a beard during a search.38 This scenario still did not explain how this risk was unique to the search of one-half inch beards. Further, the department failed to prove a less restrictive means did not exist, such as requiring Holt to comb through his beard to find hidden contraband.39

Witnesses also expressed fear inmates could alter their appearance by shaving their beards, thus hindering officers’ ability to quickly and reliably identify prisoners.40 Since its prisoners work in fields and live in barracks, the department stressed that, compared to other prisons, its “identification concern is particularly acute.”41 The department feared a prisoner might shave his beard, switch identification cards with a fellow inmate while working in the field and then gain access to a restricted area.42 Yet, as with the hidden contraband concern, neither witness could offer a reasonable explanation as to why this problem could not be solved with a dual photo approach – photographing an inmate with and without a beard – a method utilized in many other prisons.43

The court unanimously reversed the 8th Circuit’s decision, holding that the department’s policy, as applied to Holt, violated RLUIPA because it 1) substantially burdened his religious freedom by prohibiting him from wearing the one-half inch beard his faith required and 2) was not the least restrictive means to furthering the department’s compelling interest in prison safety and security.44

ANALYSIS OF THE HOLT DECISION
The Holt decision is significant as it provides three guidelines in applying the least restrictive means requirement of RLUIPA:
1) deference to prison officials should not be granted unless they can prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest; 2) when other prisons offer an accommodation, a prison must adequately explain why it cannot adopt the accommodation as a less restrictive means; and 3) a prison may not bar a religious practice if it permits that same practice for nonreligious reasons.45

While the court offered guidance on when prison officials should be afforded deference within the RLUIPA analysis, it still did not provide a straightforward rule applicable to all scenarios. To be granted deference, prison officials cannot “merely explain why [they] denied the exemption but [must] prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest.”46 Since the compelling interest test is applicable “to the person” whose religious exercise is being substantially burdened, the specific facts of the case determine whether the burden is the “least restrictive means.”47 For instance, it would have been insufficient for the department to prove some inmates with one-half inch beards pose a security risk; rather, they had to prove the grooming policy applied to Holt was the least restrictive means of furthering its interest in prison safety. The Supreme Court may have ruled differently had the department offered evidence that Holt was a violent offender. The Supreme Court emphasized proof was essential in granting prison officials deference, finding “mere say-so that they could not accommodate petitioner’s request” insufficient.48

In addition to raising the standard for applying deference, the court stressed the relevance of analogous prison policies in an RLUIPA analysis. The court explained, “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course.”49 The fact so many other prisons allow the same accommodation while simultaneously ensuring prison safety and security suggests the department could handle its problems through a less restrictive avenue than burdening Holt’s religious freedom. The court stressed “if a less restrictive means is available for the government to achieve its goals, the government must use it.”50 Since the department was unable to explain why its concerns could not be handled by requiring prisoners to comb through their beards and through utilizing a dual-photo method, the court appropriately found the department’s grooming policy failed RLUIPA’s least-restrictive means requirement.

Lastly, the court found when a policy is inconsistent in its application to analogous nonreligious conduct, the proposed compelling interests can likely be achieved in a way that is less burdensome to religion. Here, the department allowed prisoners with dermatological conditions to grow one-fourth inch beards but denied Holt permission to grow a one-half inch beard. To make sense of this exemption that seemingly undermines the purpose of the grooming policy, the court requested the department explain why its grooming policy was underinclusive.51 The department responded by noting not only are one-half inch beards longer than one-fourth inch beards but also that more prisoners request beards for religious rather than medical reasons. The court was not swayed by the department’s reasoning, finding a one-fourth inch difference in beard length and more requests unsubstantial in “pos[ing] a meaningful increase in security risk.”52

The court concluded by praising the balance the RLUIPA provides in weighing the “religious exercise of institutionalized persons,” with prison officials’ need to maintain safety and security.53 First, courts are urged not to overlook “the fact that the analysis is conducted in the prison setting.”54 Second, prisons are allowed to question the sincerity behind a prisoner’s requested religious accommodation if they suspect that an ulterior motive exists.55 Finally, even if a prisoner’s belief is sincere, the prison can take away the accommodation if “the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.”56 Holt’s application of RLUIPA requires a reassessment of prison grooming policies that may burden prisoners’ exercise of religion.

Holt has already made an impact on other cases. The court granted the plaintiff’s petition for certiorari in Knight v. Thompson, vacating the U.S. Court of Appeals for the 11th Circuit’s opinion and remanded it for further consideration in light of Holt. After reviewing its decision, the 11th Circuit rejected petitioner’s three arguments for why Holt should change the outcome. The 11th Circuit’s decision suggests federal courts may have a tendency to avoid the full effect of Holt and instead rely primarily on Cutter to continue to extend a high level of deference to prison officials making policy decisions.

CONCLUSION
The court’s decision in Holt advances inmates’ right by raising the threshold a prison official must satisfy before legally restricting a prisoner’s religious expression. Additionally, by clearing confusion associated with RULIPA’s burden of proof, the Supreme Court has paved the way for more consistent decisions among lower courts. Few basic civilities exist behind prison walls. However, the future looks brighter for prisoners desiring to participate in their religion’s practices and expressions.

ABOUT THE AUTHORS
John Cannon is owner and founder of Cannon Law Firm PLLC. His practice focuses on criminal defense, military defense and family law. He is a judge advocate in the Oklahoma National Guard, currently serving the 45th Infantry Brigade.

Leann Farha graduated from the OU College of Law in 2017. She was an editor of the Oklahoma Law Review and competed in moot court. She previously worked for OU’s general counsel and Feller, Snider, Blankenship, Bailey & Tippens PC. Ms. Farha currently works as a lawyer in Oklahoma City and at Allied Arts.

1. Procunier v. Martinez, 416 U.S. 398, 405 (1974), abrogated by Thornburgh v. Abbott, 490 U.S. 401 (1989).
2. Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006).
3. Dawinder S. Sidhu, “Religious Freedom and Inmate Grooming Standards”, 66 U. Miami L. Rev. 923, 948 (2012).
4. Holt v. Hobbs, 135 S.Ct. 853, 860 (2015).
5. Sherbert v. Verner, 374 U.S. 398, 406 (1963).
6. Holt, 135 S.Ct. at 859.
7. 42 U.S.C.A §2000bb-1(b) (West 2015), abrogated by City of Boerne v. Flores, 521 U.S. 507 (1997), superseded by statute as recognized in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).
8. Holt, 135 S.Ct. at 860.
9. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2774 (2014).
10. Id. at 2761.
11. Randi Dawn Gardner Hardin, “Knight v. Thompson: The Eleventh Circuit’s Perpetuation of Historical Practices of Colonization”, 38 Am. Indian L. Rev. 579, 582 (2014).
12. 42 U.S.C.A. §2000cc-1 (West 2015).
13. Holt, 135 S.Ct. at 860 (citation omitted).
14. Burwell, 134 S.Ct. at 2781.
15. Holt, 135 S.Ct. at 860 (citation omitted).
16. Burwell, 134 S.Ct. at 2779 (citation omitted).
17. Holt, 135 S.Ct. at 862.
18. Spratt v. Rhode Island Dept. of Corrections, 482 F.3d 33, 38 (1st Cir. 2007).
19. Cutter v. Wilkinson, 544 U.S. 709, 717 (2005).
20. Rich v. Secretary, Florida Dept. of Correction, 716 F.3d 525, 533 (11th Cir. 2013) (citation omitted).
21. Holt, 135 S.Ct. at 859.
22. Id. at 856.
23. Id.
24. Id. at 857.
25. Id. at 861.
26. Id. at 862.
27. Id.
28. Id. at 862.
29. Id. at 857.
30. Id. at 862.
31. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1139 (10th Cir. 2013).
32. Holt, 135 S.Ct. at 863.
33. Id. at 864.
34. Id. at 861.
35. Id.
36. Id.
37. Id. at 864.
38. Id.
39. Id.
40. Id.
41. Id. at 865.
42. Id.
43. Id. at 858.
44. Id. at 859.
45. Supplemental Br. for the United States as Amicus Curiae Supp. Plaintiffs-Appellants and Urging Reversal 6 April 20, 2015.
46. Id. at 864.
47. Id. at 860.
48. Id. at 866.
49. Id. at 866.
50. 42 U.S.C.A. §2000cc-1 (West 2015).
51. Holt, 135 S.Ct. at 865.
52. Id. at 866.
53. Id. at 859.
54. Id. at 866.
55. Id.
56. Id. at 867.