Remember the scene in Home Alone where Kevin McCallister (Macaulay Culkin) shaves for the first time, applies aftershave, and then screams in pain from the sting of the alcohol touching his skin (watch it here)?  Local governments may similarly feel the burn after reading the Supreme Court’s decision in Holt v. Hobbs, decided on January 20, which considered the portion of the Religious Land Use and Institutionalized Persons Act (RLUIPA) that governs religious exercise by institutionalized persons (Section 3, 42 USC § 2000cc–1).  Although the case does not discuss the land use provisions of RLUIPA, the Court’s interpretation of the standard applicable to governmental action imposing a substantial burden on religious exercise—whether the government furthered a compelling interest through the least restrictive means—could have a major influence on all RLUIPA substantial burden decisions and make defending land use decisions more difficult for local governments. 

As we reported previously: Gregory Holt a/k/a Abdul Maalik Muhammad is serving a lifetime sentence in an Arkansas prison for burglary and domestic battery.  Mr. Holt seeks to grow a beard in accordance with his Muslim faith, but Arkansas prison officials prohibited him from doing so, citing to state policy that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.”  Although the policy had no exceptions for inmates who objected on religious grounds, it did provide an exception for inmates with a documented “dermatological problem.”  In response to the denial of his request for accommodation, Holt suggested that he be allowed to grow only a half-inch beard.  This request was also denied.

According to the Arkansas Department of Corrections (Department), the beard policy is necessary to (1) help prevent inmates from concealing contraband, drugs, or weapons and (2) prevent inmates from growing beards to change their appearance by shaving.

The Supreme Court overturned the decisions of the district court and the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit had reasoned that, even if the grooming policy burdened religious exercise, the Department and prison officials “met their burden under RLUIPA of establishing that [the Arkansas Department of Corrections’] grooming policy was the least restrictive means of furthering a compelling penological interest.”  The Eighth Circuit’s decision in Holt v. Hobbs (8th Cir. 2013) is available here. The Supreme Court’s reversal was unanimous (despite the fact that onlyone justice appears to present a personal preference for facial hair).

The Court first found that Holt’s religious exercise was substantially burdened because he was faced with the choice of violating his sincerely held religious belief (shaving his beard) or suffering serious disciplinary action.  The Court noted that the district court erred in reasoning that since the prisoner was provided with alternative means of worship (including a prayer rug and access to religious advisors), the prisoner was not substantially burdened.  The district court relied on a string of First Amendment cases, which the Court distinguished: “Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection.”

Next, the Court assessed whether the Department’s asserted interests were compelling and achieved through the least restrictive means.  The Court rejected the Department’s “broadly formulated interest” in safety and security.  RLUIPA, the Court mused, “contemplates a ‘more focused’ inquiry and ‘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.’  RLUIPA requires us to ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ and ‘to look to the marginal interest in enforcing’ the challenged government action in that particular context.”  (quoting Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014)).

Rejecting the Department’s first purported and specific interest (preventing concealment of contraband) the Court considered the assertion that allowing a half-inch beard would compromise this interest “hard to take seriously.”  Why, the Court wondered, could the beard not be searched, just like an inmate’s clothes, head of hair (for which there is no half-inch limitation), or allowed mustache?  In assessing the Department’s purported interest, the Court made several observations that extended Hobby Lobby’s assessment of the “least restrictive means” standard to the RLUIPA context: “‘The least-restrictive-means standard is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].’”  (quoting Hobby Lobby)

The Supreme Court again relied on its decision in Hobby Lobby to observe that, “Congress stated that RLUIPA ‘may require a government to incur expenses in its own operations to avoid a substantial burden on religious exercise.’”  What burden on the government is acceptable to accommodate religious exercise and when does that burden cross the line? Will religious organizations seek infrastructure improvements at government expense to accommodate their development plans?  Suppose the sewage treatment plant is at capacity and a religious use wants to expand to meet the needs of its members.  Can the religious use force the government to upgrade the facility because the cost of relocating elsewhere for expansion is prohibitive?

Based on the facts of the case before it, the Supreme Court found little weight to the Department’s argument that allowing beards might facilitate a prisoner quickly changing his appearance by shaving his facial hair.  The Court found that the Department’s interests could easily be served by photographing an inmate beardless upon admittance to the prison and again once his beard reached half-an-inch.  The Court also found the grooming policy is substantially underinclusive since the Department does not require shaved heads, allows mustaches, and permits one-quarter-inch beards with a doctor’s recommendation.

Justice Ginsburg and Justice Sotomayor provide a joint, brief, concurring opinion.  Each joined the decision because “[u]nlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”  Justice Sotomayor provided an additional, separate concurrence in which local governments defending RLUIPA land use claims may find solace.  She noted, “nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restrictive means requirement.  Nor does it intimate that officials must prove that they considered less restrictive alternatives at a particular point in time.”

It wouldn’t be splitting hairs to say that the Court apparently has reinforced, at least a bit, the least-restrictive means test.  The overworked phrase these days is “getting into the weeds” so here we’ll just say that the Court seemed to get into the stubble in this case, shaving it close on the facts in unusual detail. The cautionary signal from the court is that anyone restricting religious rights within the reach of RLUIPA must take special care to have a defensible factual basis, something good local governments have had all along.

What is interesting, though not surprising, about this decision is the Supreme Court’s steadfast reliance on Hobby Lobby, a case involving the Religious Freedom Restoration Act (RFRA), in the context of an RLUIPA prisoner case.  This suggests that Hobby Lobby, and now Holt v. Hobbs, are fair game in RLUIPA land use cases.  Could the Supreme Court’s reliance on Hobby Lobby strengthen the fear of some justices, as noted in Justice Ginsburg’s dissent in Hobby Lobby, that commercial enterprises may now be able to invoke RLUIPA in the land use context?  Justice Ginsburg writes in her dissent, “[I]t is passing strange to attribute to RLUIPA any purpose to cover entities other than ‘religious assembl[ies] or institution[s].’ …  That law applies to land use regulation. … To permit commercial enterprises to challenge zoning and other land-use regulations under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent.”  But this is exactly what the Supreme Court did under RFRA, RLUIPA’s “sister statute,” and what some savvy commercial enterprises may seek to do before local land use agencies throughout the country. The Court’s decision in Holt v. Hobbs is available here.

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Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.