I’ve written before about the Religious Freedom and Restoration Act and how it might apply to barefooters. Recently, the U. S. Supreme Court ruled on such a case and I think that ruling solidifies just how much religious barefooters are protected.
I’d like to go through the case point by point and relate those points to how a barefooted is protected.
First, you might want to go read what I wrote before. There is The Religious Freedom Restoration Act — Part 1 and The Religious Freedom Restoration Act — Part 2. Nothing has really changed since I wrote those; what has changed is that the Supreme Court has been much more explicit about what the government is not allowed to do to burden religious expression, and that reinforces what I said in those posts.
I need to mention that the recent opinion, in Holt v. Hobbs, refers to the Religious Land Use and Institutionalized Persons Act (RLUIPA), not the Religious Freedom and Restoration Act. However, the standards for the two laws are the same; they just apply in different situations. The RLUIPA applies those standards to prisoners in either State or Federal prisons while the RFRA applies to any person affected by a federal law, rule, or regulation.
In this case, Gregory Holt (who converted to Islam and took the new name Abdul Maalik Muhammad) was a prisoner in an Arkansas penitentiary. He felt that his faith required him not to cut his beard, but he did offer a compromise to have a beard but keep it cut at ½ an inch. The penitentiary did not go along with this, so Holt sued under the RLUIPA.
What I am going to do here is mainly quote directly from the opinion, which upheld his right to have the ½-inch beard, and then note how it might apply to a barefooter. (I’ve removed internal citations within the quotes.)
The very first issue in one of these cases is that the plaintiff has to show that a law or policy burdens his religious exercise.
Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” §2000cc–5(7)(A), but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation. Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.
One thing that is important here is that the belief be part of one’s religious belief. It’s not good enough for it to be part of one’s philosophy; it has to have some sort of religious underpinning. Whether something like “spiritualism” counts is not clear. However, as far as I can tell, even some sort of Deism or naturalistic paganism counts as a religious belief, so in many ways, depending upon how it is accepted, that is a form of spiritualism.
If you have a sincere belief that God, or Providence, or Mother Nature (in a religious sense) requires (or strongly prefers) that you go barefoot, you are almost certainly covered.
Next, the plaintiff has to show that their religious belief was “substantially burdened”.
In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation. The Department’s grooming policy requires petitioner to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise.
A federal government agency forcing a religious barefooter to put on shoes clearly presents a substantial burden to their belief: it forces them to make the choice between putting on those shoes or holding to their religious belief.
The lower courts misinterpreted this, saying that because Holt was allowed to do other things that Muslims did, like have a prayer rug or observe Islamic holidays, they were not substantially burdening him. The lower courts were wrong.
First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights. Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise.
Just because a religious barefooter has other religious beliefs (e.g., is Catholic, or maybe follow some other religious dress) does not mean that the government entity is off the hook for allowing those other beliefs.
The penitentiary also tried to say the burden was not substantial because, even though Holt was not allowed to have a beard, the fact that he had made the attempt to grow one gave his religious credit, so they didn’t have to actually let him grow the beard.
Second, the District Court committed a similar error in suggesting that the burden on petitioner’s religious exercise was slight because, according to petitioner’s testimony, his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt proved to be unsuccessful. RLUIPA, however, applies to an exercise of religion regardless of whether it is “compelled.” §2000cc–5(7)(A).
Another example of this is that Catholics can get a travel dispensation (or a sickness dispensation) not to attend Mass under certain circumstances. That the Church allows such dispensations (so the Mass is not completely “compelled”) does not mean that a prison could prohibit a prisoner’s celebration of a Mass.
And when it comes to barefooters, the fact that a barefoot sometimes does wear shoes (let’s say for their job, or because the temperature is too cold) does not mean that they are precluded from making an RFRA claim when excluded from a federal government facility. It is still a substantial burden on their religious freedom.
The courts are also not allowed to determine the dictates of your religion, even if the religion is an organized one with fairly well-known restrictions.
Finally, the District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic. See Brief for Islamic Law Scholars as Amici Curiae 2 (“hadith requiring beards . . . are widely followed by observant Muslims across the various schools of Islam”). But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.”
Courts do not want to get in the business of determining whether a religious belief is “valid” or not. A lot of protestantism exists, with various breakaway sects, over such questions of validity. And it is not the government’s business, at all, to sort through those saying which are “correct” and which are not.
So, when it comes to a religious barefooter, it is simply not within the purview of the court whether to decide whether it is a valid religious belief or not, or whether is validly belongs to your religion. All it can do is ask whether that belief is sincere (as was addressed earlier).
Once it has been determined that a person has a sincere religious belief, and that a (federal) governmental policy has burdened that belief, the question then turns to whether the government’s regulation serves a compelling governmental interest in a narrowly tailored fashion and in the least restrictive means of burdening that religious exercise. And there are ways to analyze that.
In this case, the penitentiary claimed that weapons or contraband could be hidden in the ½-inch beard, so that there were compelling security concerns (of course, prisons always have compelling security concerns).
Note that for religious barefooters, it is hard to see that a government would ever have a true compelling interest. How can the government have a compelling interest in making sure I don’t get a boo-boo?
For Holt, the lower courts uncritically accepted the prison officials claims about security.
Although the Magistrate Judge dismissed the possibility that contraband could be hidden in a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought that they were bound to defer to the Department’s assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband. RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest.
Applying this to a barefooter’s case, it wouldn’t be enough for a facility to claim, “you might get an owie.” They’d have to justify that, and probably have to show what measures they are taking to keep their place safe (even if it were a compelling interest).
One way you can tell that the “least restrictive means” were not chosen to meet the compelling interest test is whether other, similar situations are not similarly restricted.
[T]he Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow 1⁄2-inch beards, either for any reason or for religious reasons, but it cannot. “While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.” That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.
The prison also undercut their case by allowing ¼-inch beards for those with medical issues. Can you really hide more contraband in a ½-inch beard than a ¼-inch beard? And they allow longer hair on the head: cannot that also hide contraband. Also, the fact that lots of other prisons managed to allow ½-inch beards showed that the Arkansas’ fears were misplaced.
We can apply this principle to barefooters a couple of different ways.
If the government really has an interest in making sure that our choice of footwear doesn’t hurt us, that opens up the whole can of worms as to why they don’t inspect everybody’s footwear to make sure it is safe. High heels? Slippery soles? You name it.
Also, the fact that a lot of these places allow bare feet outside (where we know there a more of what they would consider hazards) but not inside shows how underinclusive a shoe regulation would be, and hence not following the RFRA or RLUIPA. If a regulation truly met a compelling governmental interest, it would cover all similar situations.
Another interesting point in the decision is that the regulation has to be analyzed as applied to the particular person.
The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compelling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” We have rejected a similar argument in analogous contexts and we reject it again today.
I think we barefooters have heard something similar: “Oh, you might be safe. But if I let you in here barefoot, everybody would want to come in here barefoot, and then where would we be?”
Too bad. That’s not how the RFRA works.
So far, I’ve quoted from Justice Alito’s opinion. But in a concurrence, Justice Sotomayor added something I’d also like to show you.
I do not understand the Court’s opinion to preclude deferring to prison officials’ reasoning when that deference is due—that is, when prison officials offer a plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them. But the deference that must be “extend[ed to] the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.” Indeed, prison policies “‘grounded on mere speculation’” are exactly the ones that motivated Congress to enact RLUIPA.
* * *
The Court is appropriately skeptical of the relationship between the Department’s no-beard policy and its alleged compelling interests because the Department offered little more than unsupported assertions in defense of its refusal of petitioner’s requested religious accommodation. RLUIPA requires more.
We barefooters continuously are subjected to various sorts of speculations from others about what will happen to our bare feet. And that speculation is almost always completely wrong. For the purposes of the RLUIPA and RFRA, such speculation is NOT ALLOWED. They cannot just make assertions, about either supposed dangers on their floors, or that they are even dangers. More is required.
So, in the end, I think the RLUIPA and RFRA are important tools that barefooters can use, at least when dealing with the federal government. If appropriate, claim a religious exception.
Sure, not every barefooter can use such an exception. On the other foot, when officials see a barefooter getting around their idiotic regulation with nothing bad happening, maybe they’ll realize just how idiotic such a regulation is. And maybe they’ll just get rid of the thing.
Finally, as I’ve mentioned, this only applies to the Federal Government. So, where might a religious barefooter use it? Well, people have had trouble at the Smithsonian. While the Smithsonian has no shoe rule, sometimes the guards don’t know that, so invoking the RFRA might short-circuit a long discussion (or possible arrest). Post offices sometime quote the same phantom rule. I’ve had problems in the U. S. Supreme Court building itself, even though they don’t have a shoe rule, either (wouldn’t it be interesting to invoke their own ruling against them?). The Library of Congress does have a shoe rule, but a valid RFRA claim ought to defeat it. And there are a number of National Parks with shoe rules for their buildings (or in some, to enter caves). The RFRA would apply there, too. You might be able to come up with your own examples (federal jury duty?).