Amicus Curiae Brief — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

No. 21-1405

In the Supreme Court of the United States

LESTER J. SMITH, PETITIONER,

v.

TIMOTHY C. WARD, COMMISSIONER, GEORGIA

DEPARTMENT OF CORRECTIONS

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

BRIEF OF CHRISTIAN LEGAL SOCIETY AND

NATIONAL ASSOCIATION OF EVANGELICALS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

JESSE M. MENTZ

ARNOLD & PORTER

KAYE SCHOLER LLP

777 S. Figueroa St.

44th Floor

Los Angeles, CA 90017

(213) 243-4000

JOHN P. ELWOOD

ANDREW T. TUTT

Counsel of Record

SEAN A. MIRSKI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com

QUESTIONS PRESENTED

1. Whether the Eleventh Circuit erred in applying

RLUIPA when it held that Georgia need not grant a

religious accommodation offered in thirty-nine other

prison systems.

2. Whether RLUIPA allows religious accommodations to be denied based on any plausible risk to

penological interests, if the government merely asserts

that it chooses to take no risks.

3. Whether RLUIPA prohibits courts from granting

any religious accommodation short of the full

accommodation sought by a plaintiff prisoner.

(i)

ii

TABLE OF CONTENTS

Page

Interest of Amici Curiae...................................................... 1

Introduction and Summary of Argument .......................... 2

Argument ................................................................................ 5

I. RLUIPA Requires The Thoroughgoing

Application of the Traditional “Strict Scrutiny”

Test .................................................................................. 5

A. The Elements of the “Strict Scrutiny” Test ........ 5

B. The RLUIPA Statutory Test and “Strict

Scrutiny” Are One and the Same .......................... 7

II. The Court Below Erred Because It Failed to

Apply an Appropriate “Least Restrictive

Means” Analysis ........................................................... 10

A. Preliminary Elements ........................................... 10

B. The Georgia Department of Corrections Has

Not Met Its Burden of Demonstrating that

Available Less Restrictive Alternatives Are

Inadequate .............................................................. 12

C. The Court Below Erred in Applying a

Standard that Did Not Even Approximate

“Strict Scrutiny” .................................................... 14

Conclusion ............................................................................ 17

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ............................................................. 5

Ali v. Stephens,

822 F.3d 776......................................................................... 9

Bd. of Trustees of the State Univ. of New

York v. Fox,

492 U.S. 469 (1989) ........................................................... 10

Benning v. Georgia,

391 F.3d 1299 (11th Cir. 2004) .......................................... 8

Burson v. Freeman,

504 U.S. 191 (1992) ............................................................. 6

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................... 10, 11, 12

Couch v. Jabe,

679 F.3d 197 (4th Cir. 2012) .............................................. 8

Cutter v. Wilkinson,

544 U.S. 709 (2005) ........................................................... 15

Does 1-3 v. Mills,

142 S. Ct. 17 (2021) ............................................................. 5

Emp’t Div., Dep’t of Human Res. of Or. v.

Smith,

494 U.S. 872 (1990) ......................................................... 2, 5

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) ................................................... 4, 11

Garner v. Kennedy,

713 F.3d 237 (5th Cir. 2013) ............................................ 15

Gladson v. Iowa Dep’t of Corr.,

551 F.3d 825 (8th Cir. 2009) .............................................. 8

iv

Cases—Continued

Page(s)

Gonzales v. O Centro Espírita Beneficente

União

do Vegetal, 546 U.S. 418 (2006))................................ 4, 6, 8

Holt v. Hobbs,

574 U.S. 352 (2015) .......2, 3, 4, 8, 10, 11, 12, 13, 14, 15, 16

Knight v. Thompson,

796 F.3d 1289 (11th Cir. 2015) ...................................... 8, 9

Knight v. Thompson,

797 F.3d 934 (11th Cir. 2015) ...................................... 9, 15

Lovelace v. Lee,

472 F.3d 174 (4th Cir. 2006) .............................................. 8

Miller v. Johnson,

515 U.S. 900 (1995) ............................................................. 6

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ..................................... 2, 3, 4, 11, 16

Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) ................................................. 8

Thomas v. Review Bd. of Ind. Emp’t Sec.

Div.,

450 U.S. 707 (1981) ............................................................. 7

United States v. Playboy Entm’t Grp.,

529 U.S. 803 (2000) ....................................................... 5, 11

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005) ...................................... 15, 16

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................................. 5

Washington v. Klem,

497 F.3d 272 (3d Cir. 2007) ................................................ 6

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ............................................ 15

v

Statutes

Page(s)

42 U.S.C. § 2000cc-1 .............................................................. 7

42 U.S.C. § 2000cc-1(a) ......................................................... 6

42 U.S.C. § 2000cc-3(c) ........................................................ 11

Legislative Materials

146 Cong. Rec. 16699 (2000) ......................................... 1, 5, 8

146 Cong. Rec. 16702 (2000) ................................................. 7

146 Cong. Rec. 19123 (2000) ................................................. 7

Other Authorities

D. Sidhu, Religious Freedom and Inmate

Grooming Standards,

66 U. Miami L. Rev. 923 (2005) ...................................... 14

INTEREST OF AMICI CURIAE1

This brief is submitted on behalf of amici curiae

Christian Legal Society and National Association of

Evangelicals.

Christian

Legal

Society

(CLS)

is

a

nondenominational association of Christian attorneys, law

students, and law professors. CLS’s legal advocacy

division, the Center for Law & Religious Freedom, works

to protect all Americans’ right to be free to exercise their

religious beliefs. CLS was instrumental in passage of both

the Religious Land Use and Institutionalized Persons Act

(RLUIPA) and its sister statute, the Religious Freedom

Restoration Act (RFRA). CLS has a longstanding

interest in defending RLUIPA’s constitutionality and

proper application in the courts. In passing RFRA and

RLUIPA, Congress honored our nation’s historic,

bipartisan tradition of respecting religious conscience.

Ensuring prisoners’ religious exercise accords with that

tradition of respecting religious conscience.

The National Association of Evangelicals (NAE)

is a nonprofit association of evangelical Christian

denominations, churches, organizations, institutions, and

individuals that includes more than 50,000 local churches

from 74 different denominations and serves a

constituency of over 20 million people.

In 2000, after conducting extensive hearings and

finding that various State prison systems were imposing

“frivolous or arbitrary” restrictions on prisoners’ practice

of their religions, 146 Cong. Rec. 16699 (2000) (joint

1

No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund the preparation of or submission of this brief. No

one other than the amici curiae or his counsel made a monetary

contribution to the preparation or submission of this brief. The parties were given timely notice and consented to this filing.

(1)

2

statement of Sens. Orrin Hatch and Edward Kennedy), a

unanimous Congress enacted RLUIPA, which provided

financial incentives to States to provide rigorous

protection for the free exercise rights of prisoners.

Nonetheless, various State agencies and some courts have

adopted interpretations of RLUIPA’s requirements that

ignore the statutorily mandated “strict scrutiny” review

of any abridgments of prisoners’ free exercise rights, and

have effectively read RLUIPA’s free exercise safeguards

out of existence.

These decisions, if allowed to stand, will have

corrosive implications far beyond prison walls. Because

RLUIPA expressly incorporates the traditional

constitutional strict scrutiny analysis, any effort to “tone

down” strict scrutiny in this context could weaken strict

scrutiny across the board. As this Court has previously

warned, the “watering . . . down” of strict scrutiny in one

context will inevitably “subvert its rigor in the other fields

where it is applied.” Emp’t Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S. 872, 888 (1990). The Court must

continue—as it always has—to “start[] with a heavy

presumption against a state law that infringes the

constitutional or statutory right in question” and allow

“state infringement on that right only when the State has

a sufficiently ‘compelling’ interest.” Ramirez v. Collier,

142 S. Ct. 1264, 1287 (2022) (Kavanaugh, J, concurring).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Nearly forty other prison systems permit beards

without a length limit, yet Georgia prohibits beard lengths

of more than half an inch. Seven years ago, in Holt v.

Hobbs, 574 U.S. 352 (2015), this Court recognized that it

would inevitably need to answer the question at the heart

of this case: whether prison officials can deny religious

prisoners the right to grow full beards without violating

3

the Religious Land Use and Institutionalized Persons

Act. Tr. of Oral Argument at 4–8, Holt v. Hobbs, 573 U.S.

352 (2015) (No. 13-6827). Holt did not require the Court to

go that far, because Arkansas did not allow for even halfinch beards, and a half inch was all that the petitioner

there sought before this Court. Ibid. This case finally

presents the Court with the question whether there is

really any legal difference between denying a full beard

and denying a beard of any length at all.

The answer is no. Cases like this one are why we need

RLUIPA. Prisons cannot infringe on the religious rights

of prisoners so cavalierly. They must meet the

requirements of strict scrutiny. They must identify a

compelling interest, and they must carry their burden to

show that a policy that infringes on religious exercise is

the least restrictive means of achieving that interest.

Georgia emphatically failed to make that showing in this

case, and its restriction on full-length beards cannot

stand.

Georgia’s interest is not compelling. Georgia’s stated

interest—which reduces to the claim that there is some

incremental gain to prison security from prohibiting fulllength beards—cannot possibly be enough to justify a

significant infringement on religious exercise. Accepting

Georgia’s interest as a compelling interest threatens the

entire framework of strict scrutiny. Small risk is not

enough. A compelling state interest has to be more than a

de minimis gain to prison security—denying an

accommodation must be necessary to prevent a

significant or material effect on the security situation.

To be sure, “a State’s understandable goal of avoiding

a higher risk of great harm does not easily map onto the

compelling interest/least restrictive means standards,”

Ramirez v. Collier, 142 S. Ct. 1264, 1288 (2022)

(Kavanaugh, J., concurring), but requiring less than a

4

significant effect or a material effect essentially grants

the government a free pass through the compelling

interest prong, Tr. of Oral Argument at 12, Holt v. Hobbs,

573 U.S. 352 (2015) (No. 13-6827), which is inconsistent

with this Court’s historical approach to strict scrutiny,

Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881 (2021)

(“Rather than rely on ‘broadly formulated interests,’

courts must ‘scrutinize[ ] the asserted harm of granting

specific exemptions to particular religious claimants.’ ”

(quoting Gonzales v. O Centro Espírita Beneficente

União do Vegetal, 546 U.S. 418, 431 (2006))).

Georgia’s policy also is not the least restrictive means

of achieving its interest. Measured along every dimension

of least restrictive means analysis, Georgia’s beard policy

comes up short. Does Georgia give real-world examples of

specific harms from full-length beards? No. Does Georgia

treat similar risks the same way? No. Did Georgia take

account of solutions that had been found to work in other

jurisdictions? No.

The last error is especially egregious and should

doom Georgia’s beard policy. It is virtually self-evident

that “experience matters in assessing whether less

restrictive alternatives could still satisfy the State’s

compelling interest.” Ramirez, 142 S. Ct. at 1288

(Kavanaugh, J., concurring). The “experience in other

States” can be “informative in analyzing whether the

State . . . has employed the least restrictive means.” Id. at

1288 n.2. RLUIPA and strict scrutiny require prison

officials to make accommodations whenever such

accommodations are feasible. But if a prison refuses even

to look at how other prisons have accommodated a

religious practice, that prison clearly has not satisfied that

obligation. See Holt, 574 U.S. at 368–369.

Prison is a context where the State’s interests and

religious exercise often collide, but it is not unique in that

5

regard. The State’s interests are constantly colliding with

religious exercise. See, e.g., Does 1-3 v. Mills, 142 S. Ct.

17, 18 (2021) (Gorsuch, J., dissenting). The degree of

deference afforded to prison officials cannot be so great

as to negate the statutory standard, which Congress

enacted precisely to eliminate the “frivolous or arbitrary”

restrictions on prisoners’ practice of their religions that

preceded its enactment. 146 Cong. Rec. 16699 (2000) (joint

statement of Sens. Orrin Hatch and Edward Kennedy).

To the degree the Court defers to prison officials, it must

defer within the statutory standard, not substitute

deference for the standard. And that statutory standard

still requires the State to show the policy furthers a

compelling interest and represents the least restrictive

means.

The Court should grant certiorari and reverse.

ARGUMENT

I.

RLUIPA

REQUIRES

THE

THOROUGHGOING

APPLICATION OF THE TRADITIONAL “STRICT

SCRUTINY” TEST

A. The Elements of the “Strict Scrutiny” Test

The demands of strict scrutiny safeguard this

country’s most important civil rights. They apply to racebased discrimination, Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 227 (1995), regulation of free speech,

United States v. Playboy Entm’t Grp., 529 U.S. 803, 813–

814 (2000), and the protection of “fundamental rights,”

Washington v. Glucksberg, 521 U.S. 702, 720–721 (1997).

Watering down strict scrutiny’s requirements in one

context erodes its protections in all. Emp’t Div., Dep’t of

Human Res. of Or. v. Smith, 494 U.S. 872, 888 (1990).

Strict scrutiny requires the government to

demonstrate that its action is the least restrictive means

to accomplish a compelling interest. Playboy Entm’t, 529

U.S. at 813. Each of these elements is important, and each

6

is demanding. Miller v. Johnson, 515 U.S. 900, 920 (1995)

(describing “strict scrutiny” as “our most rigorous and

exacting standard of constitutional review”).

The government’s interest must be compelling. Its

means must be the least restrictive ones. And it must

demonstrate, not merely assert, that these conditions are

met. Burson v. Freeman, 504 U.S. 191, 199 (1992). In the

RLUIPA context, it must do so with particularity—as

applied to the individual whose rights are restricted. 42

U.S.C. § 2000cc-1(a) (prisons cannot “impose a substantial

burden on the religious exercise of a person residing in . . .

an institution . . . even if the burden results from a rule of

general applicability” unless the burden satisfies strict

scrutiny); accord Gonzales v. O Centro Espírita

Beneficente União do Vegetal, 546 U.S. 418, 430–431

(2006) (interpreting equivalent language from RLUIPA’s

sister statute RFRA to require individualized review);

Washington v. Klem, 497 F.3d 272, 285 (3d Cir. 2007)

(inquiring whether the restriction was the least restrictive

means available “either facially or as applied to [the

plaintiff]”).

This much the Court already knows. But

unfortunately for petitioner Lester Smith, his ability to

serve his sentence without violating the dictates of his

conscience hangs on whether the Court will state again

that traditional strict scrutiny applies in the Eleventh

Circuit.

When the Eleventh Circuit held, over a dissent, that

the nearly identical case of Holt v. Hobbs did not require

the Georgia Department of Corrections to allow

petitioner Smith to grow a beard as he believes his faith

requires, it did not apply strict scrutiny. When it deferred

to the Department’s unsubstantiated claims that a fulllength beard was a security risk, it did not apply strict

scrutiny. And when it failed to consider the less restrictive

7

means already applied by thirty-nine other prison

systems in furtherance of the same interest, it did not

apply strict scrutiny.

The religious exercise rights of Georgia prisoners

require more protection than this. And Congress said

so—unanimously—when it passed RLUIPA.

B. The RLUIPA Statutory Test and “Strict Scrutiny”

Are One and the Same

RLUIPA’s text embodies the strict scrutiny

standard, nearly verbatim:

No government shall impose a substantial

burden on the religious exercise of a person

residing in or confined to an institution . . . 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.

42 U.S.C. § 2000cc-1. Compare ibid., with Thomas v.

Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718

(1981) (“The state may justify an inroad on religious

liberty by showing that it is the least restrictive means of

achieving some compelling state interest.”)

This was no mere coincidence. The unanimous

Congress that passed RLUIPA deliberately imported the

highest protection legislation can grant. See, e.g., 146

Cong. Rec. 19123 (2000) (statement of Rep. Charles T.

Canady) (explaining that RLUIPA was “intended to

codify the traditional compelling interest test”); 146 Cong.

Rec. 16702 (2000) (statement of Sen. Reid) (describing the

strict scrutiny test to be applied under RLUIPA, which is

“the highest standard the courts apply to actions on the

part of government”).

Congress granted these protections for situations

just like this one: to protect the free exercise rights of

8

religious prisoners like Smith from the “frivolous or

arbitrary” decisions of State prison systems like

Georgia’s. 146 Cong. Rec. 16699 (2000) (joint statement of

Sens. Orrin Hatch and Edward Kennedy).

Numerous courts—including this one—have

acknowledged that RLUIPA applies the protections of

strict scrutiny to the free exercise rights of prisoners. See,

e.g., Holt v. Hobbs, 574 U.S. 352 (2015); Benning v.

Georgia, 391 F.3d 1299, 1304 (11th Cir. 2004); Lovelace v.

Lee, 472 F.3d 174, 186 (4th Cir. 2006); Spratt v. R.I. Dep’t

of Corr., 482 F.3d 33, 38–39 (1st Cir. 2007); Couch v. Jabe,

679 F.3d 197, 203 (4th Cir. 2012); Gladson v. Iowa Dep’t of

Corr., 551 F.3d 825, 833 (8th Cir. 2009); cf. Gonzales v. O

Centro Espírita Beneficente União do Vegetal, 546 U.S.

418, 430 (2006) (applying strict scrutiny based on identical

language in RFRA).

In Holt, a nearly identical case concerning a Muslim

prisoner in Arkansas, this Court applied strict scrutiny

under RLUIPA to strike down the Arkansas Department

of Correction’s restriction on a Muslim prisoner’s ability

to grow his beard. Holt, 574 U.S. at 356 (2015). RLUIPA’s

protections apply with equal force here, and Holt, for its

factual and legal similarities, should be dispositive. But as

the dissent below recognized, the Eleventh Circuit

majority “render[ed] the Supreme Court’s command in

Holt meaningless” when it ruled against Smith below. Pet.

App. 38a.

The Georgia Department of Corrections relied

heavily on Knight v. Thompson, an Eleventh Circuit case

decided before Holt that was vacated and remanded by

the Supreme Court in light of Holt, and which the

Eleventh Circuit largely rubber-stamped when it

reinstated its original opinion with a minor revision.

Knight v. Thompson, 796 F.3d 1289, 1291 (11th Cir. 2015)

(“We reinstate our prior Knight I opinion with revisions

9

only to Part III.B.ii, which we set forth below, and we add,

with this opinion in Knight II, a discussion of the Supreme

Court’s decision in Holt and why it does not affect the

outcome in our prior decision.”). Indeed, in this case, the

Department retained as an expert the same former

director of the Virginia Department of Corrections,

Ronald Angelone, who the Eleventh Circuit had found

“provided the most thorough defense” in Knight. 797 F.3d

934, 939 (11th Cir. 2015).

But Knight should not be followed here for at least

two reasons. First, to the extent it is interpreted to

require anything less than strict scrutiny for violations of

RLUIPA, it does not comport with Holt and should be

overturned. Second, it is factually distinguishable. The

practice in Knight was about head hair, not beard hair,

and the court on remand justified its decision by noting a

“detailed record” of more than “speculation, exaggerated

fears . . . post hoc rationalizations . . . and unquestioning

deference.” Knight, 796 F.3d at 1292 (cleaned up); cf. Ali

v. Stephens, 822 F.3d 776, 789 n.10, 794 n.14 (5th Cir. 2016)

(distinguishing Knight and allowing Muslim prisoner to

grow four-inch beard and rejecting testimony of same

expert Angelone).

Judge Martin lamented the import of the Eleventh

Circuit’s unique approach in her dissent below:

Mr. Smith is sentenced to spend the rest of his

life behind bars. As a result of today’s decision,

he will live out his life in a manner that

fundamentally violates the tenets of his religious

beliefs. This profoundly flawed outcome is all the

more tragic because it relies on little more than

speculation offered by his jailers about the

problems untrimmed beards could cause. If he

were in almost any other facility in our country,

Mr. Smith would not be forced to live this way.

10

But because he is incarcerated within our

Circuit, he has no relief for this egregious

violation of his religious rights.

Pet. App. 44a–45a (emphases added). If Georgia believes

that petitioner’s untrimmed beard will create a security

problem, then RLUIPA demands that Georgia

demonstrate that forcibly shaving the prisoner is the

means that is least restrictive of his religious exercise

rights. This it did not do. See Pet. App. 40a. And to require

less is to water down the protections of strict scrutiny, to

the detriment of every context to which strict scrutiny

applies.

II.

THE COURT BELOW ERRED BECAUSE IT FAILED TO

APPLY AN APPROPRIATE “LEAST RESTRICTIVE

MEANS” ANALYSIS

The Courts below erred by failing to appropriately

apply the least restrictive means analysis required by

strict scrutiny. Correct application of that standard shows

that Georgia’s policy cannot be sustained.

A. Preliminary Elements

As this Court has repeatedly made clear, the leastrestrictive-means test is “exceptionally demanding,” Holt,

574 U.S. at 364 (quoting Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 728 (2014)), and “imposes a heavy

burden on the State.” Bd. of Trustees of the State Univ. of

New York v. Fox, 492 U.S. 469, 477 (1989). 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].’ ” Holt, 574 U.S. at 364–365 (quoting Hobby

Lobby, 574 U.S. at 728). Put differently, the test requires

the “elimination of all less restrictive alternatives,” that

“there be no conceivable alternative” to the government’s

present policy. Fox, 492 U.S. at 478. “[I]f a less restrictive

means is available for the Government to achieve its goals,

11

the Government must use it.” Playboy Entm’t, 529 U.S. at

815.

Governments have spent many pages and hours

attempting to convince this Court that the test means

something other than what its name plainly requires, but

all these efforts have been to no avail. This Court has

instead stressed, time and again, that “[c]ourts must hold

prisons to their statutory burden, and they must not

‘assume a plausible, less restrictive alternative would be

ineffective.’ ” Holt, 574 U.S. at 369 (quoting Playboy

Entm’t, 529 U.S. at 824). “[C]onclusory defense[s] of [a]

policy’s tailoring” must come to naught, Ramirez, 142 S.

Ct. at 1279, as must governments’ “conjecture” and

“speculation” about worst-case scenarios that might

follow from less restrictive policies, id. at 1280 (quoting

Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1882

(2021)).

Indeed, this Court has recognized that the leastrestrictive-means test will often require governments to

affirmatively expend time, resources, and energy

accommodating prisoners’ religious beliefs. This Court

has required the government to explain its reasoning

whenever it fails to implement more religiously tolerant

policies followed by other prison institutions. Holt, 574

U.S. at 369 (“[W]hen 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 . . . .”). This Court has also observed that,

while “cost may be an important factor in the leastrestrictive-means analysis,” RLUIPA “may in some

circumstances require the Government to expend

additional funds to accommodate citizens’ religious

beliefs.” Hobby Lobby, 573 U.S. at 730 (citing 42 U.S.C.

§ 2000cc-3(c)). This Court has also rejected a

government’s argument that the test cannot provide “an

exemption from a legal obligation requiring the plaintiff

12

to confer benefits on third parties.” Id. at 729 n.37. And

this Court has rejected government arguments that the

least-restrictive-means test cannot be use “to require

creation of entirely new programs.” Id. at 729; see, e.g.,

Holt, 574 U.S. at 366 (identifying a new photography

program as an alternative means).

B. The Georgia Department of Corrections Has Not

Met Its Burden of Demonstrating that Available

Less Restrictive Alternatives Are Inadequate

The Georgia Department of Corrections gave three

reasons for its beard policy. Beards, according to the

Department, “could be used to cause injury, hide

contraband, and disguise an inmate.” Pet. App. 18a; see

id. at 17a. None of those are more than de minimis

concerns.

Injury. The Department’s first claim, that untrimmed

beards could be used to “cause injury,” is fanciful. As

anyone who has even seen a beard can attest, beards are

typically difficult to use as weapons. But according to the

Department, “a beard can be grabbed with resulting

injury to a prisoner.” Pet. App. 32a; see also, e.g., id. at 7a.

This claim is speculative, applicable at most to a

vanishingly small number of beards, and the Department

“provided no basis for this opinion” that the prison

considers beards a real injury risk. Pet. App. 32. More

importantly, Georgia prisons do not require all Georgia

inmates to shave their heads,2 Holt, 574 U.S. at 364, even

though head hair can of course be grabbed, resulting in

injury. The Department bore the burden to establish

“why the risk” of injury from beard pulling “is so great

that … beards cannot be allowed, even though prisoners

Pet. App. 8a n.1 (“GDOC’s grooming policy allows male inmates

to grow their head hair up to three inches long and allows female

inmates to grow their head hair to any length.”).

2

13

are allowed … head hair . . . .” Holt, 574 U.S. at 367. It did

not remotely meet that burden.

Contraband. The Department’s next claim is that

untrimmed beards could be used to hide contraband. Pet.

App. 25a. Again, as anyone familiar with beards can

explain, the argument that the interest in preventing the

introduction of contraband “would be seriously

compromised by allowing an inmate to grow” a beard “is

hard to take seriously.” Holt, 574 U.S. at 363. “An item of

contraband would have to be very small indeed to be

concealed by” a beard “and a prisoner seeking to hide an

item in” a beard “would have to find a way to prevent the

item from falling out.” Id. at 363–364. And again—head

hair and beard hair—it is all still hair, and it can all

conceal, but Georgia prisons let prisoners keep up to three

inches of their head hair. And it also lets them keep their

shirts, pants, socks, and shoes, all far easier places to

conceal contraband than virtually any beard.

More importantly, the Department “failed to

establish that it could not satisfy its security concerns by

simply searching petitioner’s beard.” Holt, 574 U.S. at

365. The obvious “less restrictive alternative” to

prohibiting beards is to have “the prisoner run a comb

through his beard.” Ibid. Such a self-search takes “maybe

three seconds” and is used by prisons nationwide,

including “every time a police department or any other

law enforcement agency arrests somebody or books

somebody” with a beard. ECF No. 236 at 117–119; see also

App.70a. As with the Department’s other explanations for

its beard policy, “GDOC has offered no logical explanation

as to why it could not use the method currently employed

by BOP and other states for searching a beard.” App.62a.

Disguise. The Department’s final claim is that

untrimmed beards could be used to disguise faces. See

Pet. App. 18a, 20a, 25a. Not by quickly growing a beard

14

but rather by quickly shaving one off. This justification for

the beards policy is outlandish. “[T]he 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.” Holt,

574 U.S. at 366. “Prison guards would then have a bearded

and clean-shaven photo to use in making identifications.”

Ibid. Indeed, merely by tracking the prisoners with

special dispensation to grow beards, the Department

should have no problem determining when someone has

suddenly and unexpectedly shaved it off. And, again, it is

totally unclear why the same issues of disguise and

identification do not arise with respect to head hear, which

is also a key tool of identification, or with respect to half

inch beards which the Department already allows

prisoners to grow. See Pet. App. 2a, 72a.

Given how readily—and how obviously—religious

beards can be accommodated, it is small wonder that the

vast majority of States, and the federal system, do provide

such accommodations to observant Muslim prisoners and

others who wish to grow beards, apparently believing that

they can do so without sacrificing necessary security. See

D. Sidhu, Religious Freedom and Inmate Grooming

Standards, 66 U. Miami L. Rev. 923, 964–972 (2005)

(reviewing prison grooming policies and finding that

thirty-nine States, the Federal Bureau of Prisons, and the

District of Columbia allow beards for religious or other

reasons). Georgia could—and by law under RLUIPA

must—accommodate it as well.

C. The Court Below Erred in Applying a Standard

that Did Not Even Approximate “Strict Scrutiny”

The court of appeals failed to hold the Department to

even the most minimal requirements of strict scrutiny’s

least restrictive means requirement. It should be common

ground—black-letter law—that the practices of other

15

jurisdictions that make a religious accommodation must

be “actually considered and rejected” before a

government refuses to make an accommodation. Knight

v. Thompson, 797 F.3d 934, 946 (11th Cir. 2015) (quoting

Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.

2005)). That was this Court’s holding in Holt when the

Court explained that “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.” Holt, 574 U.S. at 369. Yet, even though

that is the law this Court announced in Holt, that “is not

the law in th[e Eleventh] circuit.” Knight, 797 F.3d at 946.

And the panel below doubled down on that erroneous

holding. See Pet. App. 25a (“Contrary to the dissent’s

view, Holt does not require the GDOC to detail other

jurisdictions’ successes and failures with their grooming

policies to satisfy a RLUIPA inquiry.”)

It is of course true that courts must defer to the

expertise and judgment of prison officials on matters of

security and discipline. See Cutter v. Wilkinson, 544 U.S.

709, 723 (2005). It is not true, however, that this deference

amounts to a free pass on the “least restrictive means”

test, and permits prison officials to prevail based on mere

say-so; purely “speculative testimony cannot satisfy [the

State’s] burden.” Garner v. Kennedy, 713 F.3d 237, 246

(5th Cir. 2013) (finding that the State had not carried its

burden of proving that its grooming policy was the least

restrictive means available, where the State offered “no

studies” or “concrete evidence” in support of its witnesses’

testimony); see also Yellowbear v. Lampert, 741 F.3d 48,

59 (10th Cir. 2014) (“[T]he deference this court must

extend to the experience and expertise of prison

administrators does not extend so far that prison officials

may declare a compelling governmental interest by fiat.”).

In permitting the Department not even to look at how

other jurisdictions have managed to make a basic humane

16

accommodation for an important religious practice, the

court of appeals cut the legs out of the statutorily required

strict scrutiny. It permitted Georgia to refuse a religious

accommodation that nearly every other State and the

federal government have made without meeting even a

modest burden. And in permitting it to do so—to declare

that its prisons are too insecure to make religious

accommodations without even considering how numerous

other prisons make their accommodations—the court of

appeals created the perverse result that the less effort a

prison puts into making a religious accommodation, the

stronger its defense to a religious accommodation claim.

The prison that does not even consider other jurisdiction’s

practices perversely has the strongest defense because

prison officials simply will not even know how those other

prisons manage to make the accommodations that they

do. “RLUIPA, however, demands much more.” Holt, 574

U.S. at 369; see also Ramirez v. Collier, 142 S. Ct. 1264,

1279 (2022) (“That is not enough under RLUIPA.”).

Before refusing petitioner’s accommodation, Georgia

officials were obligated to determine how all these other

State and federal prison systems—which necessarily have

similar security interests to Georgia’s—allow prisoners to

grow beards in accordance with their religious convictions

without triggering the security problems that Georgia

predicts. See Warsoldier v. Woodford, 418 F.3d 989, 999–

1000 (9th Cir. 2005) (“[F]ailure of a defendant to explain

why another institution with the same compelling

interests was able to accommodate the same religious

practices may constitute a failure to establish that the

defendant was using the least restrictive means.”).

The Department admitted both that “GDOC had not

even attempted to determine how other states manage

inmates with beards” and that “GDOC provided no

information,” let alone admissible evidence, to support

distinguishing their prison population from other states.

17

Pet. App. 36a (cleaned up). Given the State’s failure to

consider any alternatives to a prison rule prohibiting

what many Muslims, Sikhs, Jews, and members of other

faiths believe to be a religious mandate, Georgia could not

possibly meet the test of strict scrutiny that RLUIPA and

this Court’s precedents require.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

JESSE M. MENTZ

ARNOLD & PORTER

KAYE SCHOLER LLP

777 S. Figueroa St.

44th Floor

Los Angeles, CA 90017

(213) 243-4000

JUNE 2022

JOHN P. ELWOOD

ANDREW T. TUTT

Counsel of Record

SEAN A. MIRSKI

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

andrew.tutt@arnoldporter.com