By Alexa Gervasi, ACLR Featured Blogger

One of the priorities of prisons is to moderate individualism, engraining in prisoners that no one inmate is superior to or deserves more than another. In some prisons, this policy extends as far as to prohibit tomato slices under the reasoning that no two slices of tomato are equal.1 The policies of the prison system fail to reach, however, the uniqueness of religious freedom. Prisons (both public and private) are bound by the Religious Land Use and Institutionalized Persons Act (RLUIPA), which, in part, prohibits prisons from substantially burdening the religious rights of prisoners.2 Where a prisoner believes that his religious freedoms have been substantially burdened, he has the right to bring a lawsuit against that prison, subject to statutory restrictions imposed on the litigation rights of prisoners.

In 1996 Congress passed the Prison Litigation Reform Act (PLRA) to limit the number of lawsuits initiated by prisoners in federal court (states quickly following suit by passing their own versions of PLRA).3 PLRA deters lawsuits by requiring, among other things, that prisoners exhaust all available administrative remedies and pay their own costs—either up front or out of their commissary funds—and limits the number of lawsuits a prisoner may file.4 The effectiveness of the PLRA was seen in the first year of its enactment, reducing the number of civil rights petitions by 20 percent from 1996 to 1997.5 It is believed that these restrictions have effectively reduced “frivolous” lawsuits that gum up courts’ dockets.6

Gregory Holt, or Abdul Maalik Muhammad, believed his claim was far from frivolous, and the Supreme Court seems to have agreed. On January 20, 2015, the United States Supreme Court issued judgment in Holt v. Hobbs, finding that the Arkansas Department of Corrections substantially burdened the prisoner’s religious exercise.7 Bringing a case under the RLUIPA, Holt asserted that the Arkansas Department of Corrections’ grooming policy, prohibiting facial hair other than trimmed mustaches and stubble reaching up to a quarter-inch for medical reasons, substantially burdened his ability to practice his religion.8 Holt, a practicing Salafi Muslim, argued that growing a beard was a necessary part of his religion, but would compromise by maintaining his beard at a length of one-half inch.9

Claims brought under the RLUIPA are assessed with strict scrutiny, meaning that the prison must show that it has a compelling interest in a policy that burdens a prisoner’s religious beliefs and that such a policy is the least restrictive means of furthering that interest.10 For Holt, this means that the Arkansas Department of Corrections would have needed to show that it has a compelling interest in prohibiting beards and that its interest can only be achieved through the prohibition. The Department argued that the policy is necessary for safety and security reasons.11 For instance, a prisoner could use his beard for hiding contraband or could alter his appearance after an escape by simply shaving the beard, or so the Department contended.12

Unfortunately for the Arkansas Department of Corrections, it has an exception to its policy. Complying with the 8th Amendment, prisoners may have beards one-quarter inch long for medical reasons. Provided the seemingly minimal difference between a beard that is one-quarter inch and a beard that is one-half inch in length, the Department’s exception implies that the policy is not necessary for meeting its purpose of ensuring safety and security. Reflecting reasoning similarly used in Burwell v. Hobby Lobby,13 the Court in Holt argued that the Department “offered no sound reason why hair, clothing, and 1⁄4-inch beards can be searched but 1⁄2-inch beards cannot,” failing to demonstrate their grooming restrictions were necessary to the safety and security of the prison system.14

Hobby Lobby discussed the religious freedoms of closely-held corporations under RLUIPA’s sister policy, the Religious Freedom Restoration Act (RFRA).15 This case, when considered in conjunction with the recent outcome of Holt, shows the Court’s recent trend of protect the religious liberties of the individual and a collection of individuals, corporations. These precedents will have the potential to increase prisoners’ confidence in the strength of religious-based claims, providing them with greater incentive to assume the risks imposed by PLRA. The Court’s willingness to not only hear, but also uphold religious freedom challenges, marks a shift that may encourage prisoners to fight for one of the few rights they retain while incarcerated. With Holt’s holding, courts may see an increase in the number of petitions brought by inmates. This potential gives Holt the ability to alter the meaning of “frivolous” for the religious rights of prisoners.

In addition to the personal burdens imposed on prisoners by PLRA, prisoners’ ability to bring suit has also been hindered by the cap it enforces on attorney’s fees, lowering the incentive for attorneys to take the cases in the first place. However, with Holt’s success, it is likely that pro bono organizations, such as the ACLU and the Liberty Institute, will step forward to represent prisoners with religious claims, as the issue garners greater attention and the likelihood of success increases. With the support of religious liberty institutes, prisoners will be better equipped to overcome the obstacles set in place by the PLRA and assert their religious freedom claims where they would otherwise have been restricted.

Not only does the view of the Court appear to be broadening to seriously consider challenges under the RFRA and the RLUIPA, but the claims of the prisoners themselves have also shifted to improve their chances of success in courts. For instance, prior to the enactment of PLRA there are examples of prisoners filing more than 180 separate lawsuits against prisons.16 Another prisoner converted to Satanism—after losing a religious claim as a practice Muslim—and demanded tarot cards and doves’ blood.17 In more recent years, prisoners have brought claims to ensure Jewish prisoners’ right to receive a Kosher diet, a prisoner’s right to wear his hair unshorn, and prisoners’ right to be excused from work on the Sabbath, among many other religious claims.18 Under the framework of the RLUIPA, a prison would have to present a compelling reason for constraining these and similar freedoms, while also showing that these policies are the least restrictive means of accomplishing their goals, a task that will be more difficult following a judgment in Holt’s favor.

As the landscape continues to change, the time may be ripe for prisoners to assert their own claims against religious burdens. With an increased likelihood of a successful claim and the incentives for public interest attorneys to fight for prisoners’ religious rights, the risks of the PLRA are slowly becoming less restrictive. Prisons may be free to limit prisoners’ intake of sliced tomatoes, but they may soon find that their jurisdiction ends where religious freedom begins.