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Alito's Over-the-Top Decision on Beards

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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On the surface, there was not much noteworthy about the U.S. Supreme Court's decision today in Holt v. Hobbs except maybe that a Muslim won a religious liberty case in the infidel West. The Arkansas prison regulation that prohibited prisoners from growing beards was silly. The court applied the federal Religious Land Use and Institutionalized Persons Act to hold that Arkansas didn't have a compelling interest in the rule and failed to adopt the least restrictive means necessary to avoid a religious burden.

Deep in the weeds of the decision, however, lurk signs of a much bigger project being pursued by Justice Samuel Alito and other members of the court. Step by step, the justices are expanding the logic of religious exemptions from otherwise neutral laws. Over time, this is leading to a de facto reversal of the Supreme Court's doctrine that ordinarily denies religious exemptions under the Constitution. This is a good thing when there's no counteracting compelling interest in applying the law. But it can also go too far, as it did in June's Burwell v. Hobby Lobby decision.

Three subtle features of the decision deserve close attention. The first is that the court didn't take the simplest means of deciding the case: It repeatedly went further than it needed to permit the beard. For example, after the court rejected Arkansas's claim that it had a compelling interest in stopping inmates from hiding contraband in half-inch beards, it went on to say that “even if the department could make that showing, its contraband argument would still fail” because it couldn't show “that forbidding very short beards is the least restrictive means of preventing the concealment of contraband.”

In other words, Alito, writing for a unanimous court, wanted to make sure the decision addressed the issue of least restrictive means -- even though it wasn't legally necessary once the compelling state interest standard hadn’t been met.

Then there was the analysis of least restrictive means that the opinion provides. Alito repeated the statement he made in the Hobby Lobby decision that the least restrictive means standard “is exceptionally demanding.” As he had done in the Hobby Lobby case, he then told the government what it could've done instead of passing the law it chose -- here, “having a prisoner run a comb through his beard.” Alito is treating the least restrictive means test as an invitation for the court to dream up its own policy alternatives in order to reject those the government claims to have considered.

Justice Sonia Sotomayor noticed this aspect of the opinion. She concurred separately to say that “nothing in the court's opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA's least restricted means requirement.” It's a well-established practice for a justice to concur in an opinion in the hopes of limiting its reach. But Sotomayor is clearly concerned -- rightly -- that Alito precisely thinks that the government must refute the possible alternatives that he comes up with -- an issue that was determinative in the Hobby Lobby case.

The third significant element in the opinion was Alito's holding that Arkansas had failed to show why it allows an exemption for a quarter-inch beard for prisoners who can't shave for medical reasons but no exemption for religion. This element was unnecessary to the holding of the case, because Alito had already found that the Arkansas regulation failed RLUIPA.

Alito pointed out that Arkansas had said there was a difference between the two kinds of exemptions: “few inmates require beards for medical reasons while many may request beards for religious reasons.” Alito rejected this rationale by saying that the government may not refuse to make religious exemptions on the theory that it would have to make exemptions for everybody.

In support of this argument, Alito cited Sherbert v. Verner, the 1963 case that established constitutional exemptions to laws that substantially burden religious exercise. What's striking about citing Sherbert is that, in 1990, the Supreme Court effectively reversed Sherbert in another famous case, Employment Division v. Smith, in which it said that such religious exemptions shouldn't be available as a general matter.

Alito was legally justified in citing the Sherbert decision insofar as RLUIPA, like the Religious Freedom Restoration Act applicable in the Hobby Lobby case, amounted to a congressional effort to restore the Sherbert rule by statute. And indeed, in a 2006 RFRA case, the court also cited Sherbert for a similar idea.

But the allusion to a case that in theory has lost much of its precedential weight can be understood as part of an attempt to resurrect it. When he was on the U.S. Court of Appeals for the 3rd Circuit, Alito wrote an opinion saying that Sherbert still applied when Newark, New Jersey, allowed a medical exemption for, you guessed it, beards grown for medical reasons. In that case, Alito cleverly managed to circumvent the Smith rule and grant a constitutional exemption.

Alito's mission of restoring Sherbert continues. And for the moment, at least, the other justices seem to be along for the ride.

  1. Justice Ruth Bader Ginsburg wrote a two sentence concurrence, joined by Sotomayor, to say that unlike in Hobby Lobby, granting the exemption in this case “would not detrimentally affect others who do not share petitioner’s belief.” But that distinction is irrelevant to Alito -- and doesn't appear in the language of RLUIPA.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net