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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–6827
_________________
GREGORY HOUSTON HOLT, aka ABDUL MAALIK MUHAMMAD, PETITIONER
v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION,
et al.
on writ of certiorari to the united states court of appeals for
the eighth circuit
[January 20, 2015]
Justice Alito delivered the opinion of the Court.
Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is
an Arkansas inmate and a devout Muslim who wishes to grow a
1∕2-inch beard in accordance with his religious beliefs.
Petitioner’s objection to shaving his beard clashes with the
Arkansas Department of Correction’s grooming policy, which
prohibits inmates from growing beards unless they have a particular
dermatological condition. We hold that the Department’s policy, as
applied in this case, violates the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA),114Stat.803,42
U. S. C. §2000cc et seq., which prohibits a
stateor local government from taking any action that substantially
burdens the religious exercise of an institutionalized person
unless the government demonstrates that the action constitutes the
least restrictive means of furthering a compelling governmental
interest.
We conclude in this case that the Department’s policy
substantially burdens petitioner’s religious exercise. Although we
do not question the importance of the Department’s interests in
stopping the flow of contraband and facilitating prisoner
identification, we do doubt whether the prohibition against
petitioner’s beard furthers its compelling interest about
contraband. And we conclude that the Department has failed to show
that its policy is the least restrictive means of furthering its
compelling interests. We thus reverse the decision of the United
States Court of Appeals for the Eighth Circuit.
I
A
Congress enacted RLUIPA and its sister statute, the Religious
Freedom Restoration Act of 1993 (RFRA),107Stat.1488,42
U. S. C. §2000bb et seq., “in order to
provide very broad protection for religious liberty.”
Burwell v. Hobby Lobby Stores, Inc., 573 U. S.
___, ___ (2014) (slip op., at 4). RFRA was enacted three years
after our decision in Employment Div., Dept. of Human Resources
of Ore. v. Smith,494 U. S. 872 (1990), which held
that neutral, generally applicable laws that incidentally burden
the exercise of religion usually do not violate the Free Exercise
Clause of the First Amendment. Id., at 878–882. Smith
largely repudiated the method of analysis used in prior free
exercise cases like Wisconsin v. Yoder,406 U. S.
205 (1972), and Sherbert v. Verner,374 U. S. 398
(1963). In those cases, we employed a balancing test that
considered whether a challenged government action that
substantially burdened the exercise of religion was necessary to
further a compelling state interest. See Yoder,
supra, at 214, 219; Sherbert, supra, at 403,
406.
Following our decision in Smith, Congress enacted RFRA in
order to provide greater protection for religious exercise than is
available under the First Amendment. See Hobby Lobby,
supra, at ___ – ___ (slip op., at 5–6). RFRA provides that
“[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general
applicability,” unless the government “demonstrates that
application of the burden to the person––(1) is in furtherance
of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental
interest.” 42 U. S. C. §§2000bb–1(a), (b). In making RFRA
applicable to the States and their subdivisions, Congress relied on
Section 5 of the Fourteenth Amendment, but in City of Boerne
v. Flores,521 U. S. 507 (1997), this Court held that
RFRA exceeded Congress’ powers under that provision. Id., at
532–536.
Congress responded to City of Boerne by enacting RLUIPA,
which applies to the States and their subdivisions and invokes
congressional authority under the Spending and Commerce Clauses.
See §2000cc–1(b). RLUIPA concerns two areas of government activity:
Section 2 governs land-use regulation, §2000cc; and Section 3—the
provision at issue in this case—governs religious exercise by
institutionalized persons, §2000cc–1. Section 3 mirrors RFRA and
provides that “[n]o 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.” §2000cc–1(a). RLUIPA thus allows prisoners “to seek
religious accommodations pursuant to the same standard as set forth
in RFRA.” Gonzales v. O Centro Espírita Beneficente União
do Vegetal,546 U. S. 418,436 (2006).
Several provisions of RLUIPA underscore its expansive protection
for religious liberty. Congress defined “religious exercise”
capaciously to include “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.”
§2000cc–5(7)(A). Congress mandated that this concept “shall be
construed in favor of a broad protection of religious exercise, to
the maximum extent permitted by the terms of this chapter and the
Constitution.” §2000cc–3(g). And Congress stated that RLUIPA “may
require a government to incur expenses in its own operations to
avoid imposing a substantial burden on religious exercise.”
§2000cc–3(c). See Hobby Lobby, supra, at ___ – ___,
___ (slip op., at 6–7, 43).
B
Petitioner, as noted, is in the custody of the Arkansas
Department of Correction and he objects on religious grounds to the
Department’s grooming policy, which provides 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.” App. to Brief for Petitioner 11a. The policy makes
no exception for inmates who object on religious grounds, but it
does contain an exemption for prisoners with medical needs:
“Medical staff may prescribe that inmates with a diagnosed
dermatological problem may wear facial hair no longer than one
quarter of an inch.” Ibid. The policy provides that
“[f]ailure to abide by [the Department’s] grooming standards is
grounds for disciplinary action.” Id., at 12a.
Petitioner sought permission to grow a beard and, al-though he
believes that his faith requires him not to trim his beard at all,
he proposed a “compromise” under which he would grow only a
1∕2-inch beard. App. 164. Prison officials denied his request, and
the warden told him: “[Y]ou will abide by [Arkansas Department of
Correction] policies and if you choose to disobey, you can suffer
the consequences.” No. 5:11–cv–00164 (ED Ark., July 21, 2011), Doc.
13, p. 6 (Letter from Gaylon Lay to Gregory Holt (July 19,
2011)).
Petitioner filed a pro se complaint in Federal
District Court challenging the grooming policy under RLUIPA. We
refer to the respondent prison officials collectively as the
Department. In October 2011, the District Court granted petitioner
a preliminary injunction and remanded to a Magistrate Judge for an
evidentiary hearing. At the hearing, the Department called two
witnesses. Both expressed the belief that inmates could hide
contraband in even a 1∕2-inch beard, but neither pointed to any
instances in which this had been done in Arkansas or elsewhere.
Both witnesses also acknowledged that inmates could hide items in
many other places, such as in the hair on their heads or their
clothing. In addition, one of the witnesses—Gaylon Lay, the warden
of petitioner’s prison—testified that a prisoner who escaped could
change his appearance by shaving his beard, and that a prisoner
could shave his beard to disguise himself and enter a restricted
area of the prison. Neither witness, however, was able to explain
why these problems could not be addressed by taking a photograph of
an inmate without a beard, a practice followed in other prison
systems. Lay voiced concern that the Department would be unable to
monitor the length of a prisoner’s beard to ensure that it did not
exceed one-half inch, but he acknowledged that the Department kept
track of the length of the beards of those inmates who are allowed
to wear a 1∕4-inch beard for medical reasons.
As a result of the preliminary injunction, petitioner had a
short beard at the time of the hearing, and the Magistrate Judge
commented: “I look at your particular circumstance and I say, you
know, it’s almost preposterous to think that you could hide
contraband in your beard.” App. 155. Nevertheless, the Magistrate
Judge recommended that the preliminary injunction be vacated and
that petitioner’s complaint be dismissed for failure to state a
claim on which relief can be granted. The Magistrate Judge
emphasized that “the prison officials are entitled to deference,”
id., at 168, and that the grooming policy allowed petitioner
to exercise his religion in other ways, such as by praying on a
prayer rug, maintaining the diet required by his faith, and
observing religious holidays.
The District Court adopted the Magistrate Judge’s recommendation
in full, and the Court of Appeals for the Eighth Circuit affirmed
in a brief per curiam opinion, holding that the Department
had satisfied its burden of showing that the grooming policy was
the least restrictive means of furthering its compelling security
interests. 509 Fed. Appx. 561 (2013). The Court of Appeals stated
that “courts should ordinarily defer to [prison officials’] expert
judgment” in security matters unless there is substantial evidence
that a prison’s response is exaggerated. Id., at 562. And
while acknowledging that other prisons allow inmates to maintain
facial hair, the Eighth Circuit held that this evidence “does not
outweigh deference owed to [the] expert judgment of prison
officials who are more familiar with their own institutions.”
Ibid.
We entered an injunction pending resolution of petitioner’s
petition for writ of certiorari, 571 U. S. ___ (2013), and we
then granted certiorari, 571 U. S. ___ (2014).
II
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, see Hobby Lobby, 573 U. S., at ___, n. 28
(slip op., at 29, n. 28). 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.
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.”
Id., at ___ (slip op., at 32). 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. Indeed, the
Department does not argue otherwise.
The District Court reached the opposite conclusion, but its
reasoning (adopted from the recommendation of the Magistrate Judge)
misunderstood the analysis that RLUIPA demands. 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.” App. 177. In taking this approach, the
District Court improperly imported a strand of reasoning from cases
involving prisoners’ First Amendment rights. See, e.g.,
O’Lone v. Estate of Shabazz,482 U. S. 342–352
(1987); see also Turner v. Safley,482 U. S.
78,90 (1987). 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.
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 testi-mony, his religion
would “credit” him for attempting to follow his religious beliefs,
even if that attempt provedto be unsuccessful. RLUIPA, however,
applies to an exercise of religion regardless of whether it is
“compelled.” §2000cc–5(7)(A).
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.” Thomas v. Review Bd.
of Indiana Employment Security Div.,450 U. S. 707–716
(1981).
III
Since petitioner met his burden of showing that the Department’s
grooming policy substantially burdened his exercise of religion,
the burden shifted to the Department to show that its refusal to
allow petitioner to grow a 1∕2-inch beard “(1) [was] in furtherance
of a compelling governmental interest; and (2) [was] the least
restrictive means of furthering that compelling governmental
interest.” §2000cc–1(a).
The Department argues that its grooming policy represents the
least restrictive means of furthering a “ ‘broadly formulated
interes[t],’ ” see Hobby Lobby, supra, at ___
(slip op., at 39) (quoting O Centro, 546 U. S., at
431), namely, the Department’s compelling interest in prison safety
and security. But RLUIPA, like RFRA, 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.’ ” Hobby Lobby, 573 U. S., at ___
(slip op., at 39) (quoting O Centro, supra, at
430–431 (quoting §2000bb–1(b))). 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. Hobby Lobby,
supra, at ___ (slip op., at 39) (quoting O Centro,
supra, at 431; alteration in original). In this case, that
means the enforcement of the Department’s policy to prevent
petitioner from growing a 1∕2-inch beard.
The Department contends that enforcing this prohibition is the
least restrictive means of furthering prison safety and security in
two specific ways.
A
The Department first claims that the no-beard policy prevents
prisoners from hiding contraband. The Department worries that
prisoners may use their beards to conceal all manner of prohibited
items, including razors, needles, drugs, and cellular phone
subscriber identity module (SIM) cards.
We readily agree that the Department has a compelling interest
in staunching the flow of contraband into and within its
facilities, but the argument that this interest would be seriously
compromised by allowing an inmate to grow a 1∕2-inch beard is hard
to take seriously. As noted, the Magistrate Judge observed that it
was “almost preposterous to think that [petitioner] could hide
contraband” in the short beard he had grown at the time of the
evidentiary hearing. App. 155. An item of contraband would have to
be very small indeed to be concealed by a 1∕2-inch beard, and a
prisoner seeking to hide an item in such a short beard would have
to find a way to prevent the item from falling out. Since the
Department does not demand that inmates have shaved heads or short
crew cuts, it is hard to see why an inmate would seek to hide
contraband in a 1∕2-inch beard rather than in the longer hair on
his head.
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.” O Centro,
supra, at 434. 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. Prison officials are experts in
running prisons and evaluating the likely effects of altering
prison rules, and courts should respect that expertise. But that
respect does not justify the abdication of the responsibility,
conferred by Congress, to apply RLUIPA’s rigorous standard. And
without a degree of deference that is tantamount to unquestioning
acceptance, it is hard to swallow the argument that denying
petitioner a 1∕2-inch beard actually furthers the Department’s
interest in rooting out contraband.
Even if the Department could make that showing, its contraband
argument would still fail because the Department cannot show that
forbidding very short beards is the least restrictive means of
preventing the concealment of contraband. “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].” Hobby
Lobby, supra, at ___ (slip op., at 40). “[I]f a less
restrictive means is available for the Government to achieve its
goals, the Government must use it.” United States v.
Playboy Entertainment Group, Inc.,529 U. S. 803,815
(2000).
The Department failed to establish that it could not satisfy its
security concerns by simply searching petitioner’s beard. The
Department already searches prisoners’ hair and clothing, and it
presumably examines the 1∕4-inch beards of inmates with
dermatological conditions. It has offered no sound reason why hair,
clothing, and 1∕4-inch beards can be searched but 1∕2-inch beards
cannot. The Department suggests that requiring guards to search a
prisoner’s beard would pose a risk to the physical safety of a
guard if a razor or needle was concealed in the beard. But that is
no less true for searches of hair, clothing, and 1∕4-inch beards.
And the Department has failed to prove that it could not adopt the
less restrictive alternative of having the prisoner run a comb
through his beard. For all these reasons, the Department’s interest
in eliminating contraband cannot sustain its refusal to allow
petitioner to grow a 1∕2-inch beard.
B
The Department contends that its grooming policy is necessary to
further an additional compelling interest, i.e., preventing
prisoners from disguising their identities. The Department tells us
that the no-beard policy allows secu-rity officers to identify
prisoners quickly and accurately. It claims that bearded inmates
could shave their beards and change their appearance in order to
enter restricted areas within the prison, to escape, and to evade
apprehension after escaping.
We agree that prisons have a compelling interest in the quick
and reliable identification of prisoners, and we acknowledge that
any alteration in a prisoner’s appearance, such as by shaving a
beard, might, in the absence of effective countermeasures, have at
least some effect on the ability of guards or others to make a
quick identification. But even if we assume for present purposes
that the Department’s grooming policy sufficiently furthers its
interest in the identification of prisoners, that policy still
violates RLUIPA as applied in the circumstances present here. The
Department contends that a prisoner who has a beard when he is
photographed for identification purposes might confuse guards by
shaving his beard. But as petitioner has argued, the Department
could largely solve this problem by requiring that all inmates be
photographed without beards when first admitted to the facility
and, if necessary, periodically thereafter. Once that is done, an
inmate like petitioner could be allowed to grow a short beard and
could be photographed again when the beard reached the 1∕2-inch
limit. Prison guards would then have a bearded and clean-shaven
photo to use in making identifications. In fact, the Department
(like many other States, see Brief for Petitioner 39) already has a
policy of photographing a prisoner both when he enters an
institution and when his “appearance changes at any time during
[his] incarceration.” Arkansas Department of Correction, Inmate
Handbook 3–4 (rev. Jan. 2013).
The Department argues that the dual-photo method is inadequate
because, even if it might help authorities apprehend a bearded
prisoner who escapes and then shaves his beard once outside the
prison, this method is unlikely to assist guards when an inmate
quickly shaves his beard in order to alter his appearance within
the prison. The Department contends that the identification concern
is particularly acute at petitioner’s prison, where inmates live in
barracks and work in fields. Counsel for the Department suggested
at oral argument that a pris-oner could gain entry to a restricted
area by shavinghis beard and swapping identification cards with
an-other inmate while out in the fields. Tr. of Oral Arg. 28–30,
39–43.
We are unpersuaded by these arguments for at least two reasons.
First, the Department failed to show, in the face of petitioner’s
evidence, that its prison system is so different from the many
institutions that allow facial hair that the dual-photo method
cannot be employed at its institutions. Second, the Department
failed to establish why the risk that a prisoner will shave a
1∕2-inch beard to disguise himself is so great that 1∕2-inch beards
cannot be allowed, even though prisoners are allowed to grow
mustaches, head hair, or 1∕4-inch beards for medical reasons. All
of these could also be shaved off at a moment’s notice, but the
Department apparently does not think that this possibility raises a
serious security concern.
C
In addition to its failure to prove that petitioner’s proposed
alternatives would not sufficiently serve its security interests,
the Department has not provided an adequate response to two
additional arguments that implicate the RLUIPA analysis.
First, the Department has not adequately demonstrated why its
grooming policy is substantially underinclusive in at least two
respects. Although the Department denied petitioner’s request to
grow a 1∕2-inch beard, it permits prisoners with a dermatological
condition to grow 1∕4-inch beards. The Department does this even
though both beards pose similar risks. And the Department permits
inmates to grow more than a 1∕2-inch of hair on their heads. With
respect to hair length, the grooming policy provides only that hair
must be worn “above the ear” and “no longer in the back than the
middle of the nape of the neck.” App. to Brief for Petitioner 11a.
Hair on the head is a more plausible place to hide contraband than
a 1∕2-inch beard—and the same is true of an inmate’s clothing and
shoes. Nevertheless, the Department does not require inmates to go
about bald, barefoot, or naked. Although the Department’s
proclaimed objectives are to stop the flow of contraband and to
facilitate prisoner identification, “[t]he proffered objectives are
not pursued with respect to analogous nonreligious conduct,” which
suggests that “those interests could be achieved by narrower
ordinances that burdened religion to a far lesser degree.”
Church of Lukumi Babalu Aye, Inc. v. Hialeah,508
U. S. 520,546 (1993).
In an attempt to demonstrate why its grooming policy is
underinclusive in these respects, the Department emphasizes that
petitioner’s 1∕2-inch beard is longer than the 1∕4-inch beard
allowed for medical reasons. But the Department has failed to
establish (and the District Court did not find) that a 1∕4-inch
difference in beard length poses a meaningful increase in security
risk. 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.” O Centro, 546
U. S., at 436. We have rejected a similar argument in
analogous contexts, see ibid.; Sherbert, 374
U. S., at 407, and we reject it again today.
Second, the 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. See Brief
for Petitioner 24–25; Brief for United States as Amicus
Curiae 28–29. “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.”
Procunier v. Martinez,416 U. S. 396, n. 14
(1974). 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.
We do not suggest that RLUIPA requires a prison to grant a
particular religious exemption as soon as a few other jurisdictions
do so. But 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, and the Department failed to make
that showing here. Despite this, the courts below deferred to these
prison officials’ mere say-so that they could not accommodate
petitioner’s request. RLUIPA, however, demands much more. Courts
must hold prisons to their statutory burden, and they must not
“assume a plausible, less restrictive alternative would be
ineffective.” Playboy Entertainment, 529 U. S., at
824.
We emphasize that although RLUIPA provides substantial
protection for the religious exercise of institutionalized persons,
it also affords prison officials ample ability to maintain
security. We highlight three ways in which this is so. First, in
applying RLUIPA’s statutory standard, courts should not blind
themselves to the fact that the analysis is conducted in the prison
setting. Second, if an institution suspects that an inmate is using
religious activity to cloak illicit conduct, “prison officials may
appropriately question whether a prisoner’s religiosity, asserted
as the basis for a requested accommodation, is authentic.”
Cutter v. Wilkinson,544 U. S. 709, n. 13
(2005). See also Hobby Lobby, 573 U. S., at ___, n. 28
(slip op., at 29, n. 28). Third, even if a claimant’s
religious belief is sincere, an institution might be entitled to
withdraw an accommodation if the claimant abuses the exemption in a
manner that undermines the prison’s compelling interests.
IV
In sum, we hold that the Department’s grooming policy violates
RLUIPA insofar as it prevents petitioner from growing a 1∕2-inch
beard in accordance with his religious beliefs. The judgment of the
United States Court of Appeals for the Eighth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–6827
_________________
GREGORY HOUSTON HOLT, aka ABDUL MAALIK MUHAMMAD, PETITIONER
v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION,
et al.
on writ of certiorari to the united states court of appeals for
the eighth circuit
[January 20, 2015]
Justice Sotomayor, concurring.
I concur in the Court’s opinion, which holds that the Department
failed to show why the less restrictive al-ternatives identified by
petitioner in the course of this litigation were inadequate to
achieve the Department’s compelling security-related interests. I
write separatelyto explain my understanding of the applicable
legalstandard.
Nothing in the Court’s opinion calls into question our prior
holding in Cutter v. Wilkinson that “[c]ontext
matters” in the application of the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA),114Stat.803,42
U. S. C. §2000cc et seq. 544 U. S.
709,723 (2005) (internal quotation marks omitted). In the dangerous
prison environment, “regulations and procedures” are needed to
“maintain good order, security and discipline, consistent with
consideration of costs and limited resources.” Ibid. Of
course, that is not to say that cost alone is an absolute defense
to an otherwise meritorious RLUIPA claim. See §2000cc–3(c). Thus,
we recognized “that prison security is a compelling state interest,
and that deference is due to institutional officials’ expertise in
this area.” Cutter, 544 U. S., at 725, n. 13.
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.” Yellowbear v.
Lampert, 741 F. 3d 48, 59 (CA10 2014). Indeed, prison
policies “ ‘grounded on mere speculation’ ” are exactly
the ones that motivated Congress to enact RLUIPA. 106 Cong.
Rec. 16699 (2000) (quoting S. Rep. No. 103–111, 10
(1993)).
Here, the Department’s failure to demonstrate why the less
restrictive policies petitioner identified in the course of the
litigation were insufficient to achieve its compelling
interests—not the Court’s independent judgment concerning the merit
of these alternative approaches—is ultimately fatal to the
Department’s position. The Court is appro-priately skeptical of the
relationship between the De-partment’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.
One final point bears emphasis. RLUIPA requires institutions
refusing an accommodation to demonstrate that the policy it defends
“is the least restrictive means of furthering [the alleged]
compelling . . . interest[s].” §2000cc–1(a)(2); see also
Washington v. Klem, 497 F. 3d 272, 284 (CA3
2007) (“[T]he phrase ‘least restrictive means’ is, by definition, a
relative term. It necessarily implies a comparison with other
means”); Couch v. Jabe, 679 F. 3d 197, 203 (CA4
2012) (same). But 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. Instead, the Court
correctly notes that the Department inadequately responded to the
less restrictive policies that petitioner brought to the
Department’s attention during the course of the litigation,
including the more permissive policies used by the prisons in New
York and California. See, e.g., United States v.
Wilgus, 638 F. 3d 1274, 1289 (CA10 2011) (observing in
the analogous context of the Religious Freedom Restoration Act of
1993 that the government need not “do the impossible—refute each
and every conceivable alternative regulation scheme” but need only
“refute the alternative schemes offered by the challenger”).
Because I understand the Court’s opinion to be consistent with
the foregoing, I join it.
