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 SMITH,

Petitioner,

v.

TIMOTHY WARD, COMMISSIONER,

GEORGIA DEPARTMENT OF CORRECTIONS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Eleventh Circuit

BRIEF OF AMICUS CURIAE

CONSTITUTIONAL LAW CENTER FOR

MUSLIMS IN AMERICA IN SUPPORT

OF PETITIONER

Christina A. Jump

Counsel of Record

Najmu Mohseen

A lyssa F. Morrison

Constitutional Law Center

for Muslims in A merica

100 North Central Expressway,

Suite 1010

Richardson, Texas 75080

(972) 914-2507

cjump@clcma.org

313072

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Eleventh Circuit erred in failing to

require that the State of Georgia meet its burden, under

the Religious Land Use and Institutionalized Persons

Act and this Court’s precedents of Holt v. Hobbs and

Ramirez v. Collier, to show that its half-inch beard

limitation represents the least restrictive means available

to accomplish its stated compelling interests, without

unconstitutionally burdening the religious expression of

affected inmates like Lester Smith, whose sincerely held

religious beliefs mandate longer beards; and

a. Whether, in meeting its burden to show that

its half-inch beard limitation represents the least

restrictive means available to accomplish its stated

compelling interests w ithout unconstitutionally

burdening the religious freedom of affected inmates,

the State of Georgia must demonstrate more than

stubborn refusal and conclusory statements to explain

why the less restrictive policies of 37 other states fully

could not meet its needs.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

GDOC’s Ban on Untr immed Beards

Infringes on Muslim and Other Inmates’

Rights to Religious Expression . . . . . . . . . . . . . . 5

A. Maintaining an Untrimmed Beard

Constitutes a Core Tenet of Islam

and Other Faiths . . . . . . . . . . . . . . . . . . . . . . 5

B. The Armed Forces Recognize and

Accommodate Religious Beards . . . . . . . . . 9

II. The Eleventh Circuit’s Holding Gives States

Too Much Deference, Contradicting Both

RLUIPA and This Court’s Precedent . . . . . . . . 10

A. The Eleventh Circuit’s Holding Takes

the Teeth out of Binding Precedent,

Giving States the Unfettered Deference

This Court Already Rejected . . . . . . . . . . . 10

iii

Table of Contents

Page

B. Risk Aversion Alone Fails to Satisfy

Institutions’ Burdens . . . . . . . . . . . . . . . . . 12

III. Existing Frameworks Provide Relevant

Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Religious Freedom Restoration Act,

RLUIPA’s Older Sibling . . . . . . . . . . . . . . . 20

B. Guidance by the Federal Government

Clarifies Any Doubt . . . . . . . . . . . . . . . . . . . 22

C. Congress’ Intent is Clear . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iv

TABLE OF CITED AUTHORITIES

Page(s)

CASES

Bell v. Wolfish

441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Burwell v. Hobby Lobby Stores, Inc.

573 U.S. 682 (2014) . . . . . . . . . . . . . . . . . . . 2, 19, 21, 25

City of Boerne v. Flores

521 U.S. 507 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

Cutter v. Wilkinson

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

Dunn v. Smith

141 S. Ct. 725 (2021) . . . . . . . . . . . . . . . . . . . . . . . 19, 22

Employment Div., Dep’t of Hum. Res. of Or. v.

Smith

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fulton v. Philadelphia

141 S. Ct. 1868 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Greenhill v. Clarke

944 F.3d 243 (4th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 12

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal

546 U.S. 418 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 20-21

v

Cited Authorities

Page(s)

Holt v. Hobbs

574 U.S. 352 (2015) . . . . . . . . . . . . . . . . . . . . . . . passim

Mast v. Fillmore Cnty.

141 S. Ct. 2430 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mays v. Joseph

2022 U.S. App. LEXIS 87

(11th Cir. Jan. 3, 2022) . . . . . . . . . . . . . . . . . . . . . . 2, 21

McCullen v. Coakley

573 U.S. 464 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ramirez v. Collier

142 S. Ct. 1264 (2022) . . . . . . . . . . . . . . . . . . . . . passim

Singh v. Carter,

168 F. Supp. 3d 216 (D.C. Cir. 2016) . . . . . . . . . . . . . . 9

Smith v. Dozier

2019 U.S. Dist. LEXIS 132234

(M.D. Ga. Aug. 7, 2019) . . . . . . . . . . . . . . . . . . . . . 12, 15

Smith v. Owens

13 F.4th 1319 (11th Cir. 2021) . . . . . . . . 10-11, 15, 17, 18

Sossoman v. Texas

563 U.S. 277 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Turner v. Safley

482 U.S. 78 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vi

Cited Authorities

Page(s)

Wolff v. McDonnell

418 U.S. 539 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONSTITUTIONAL PROVISIONS

U.S. Const. Amdt. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES

42 U.S.C. § 2000bb–2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 2000cc–5(7)(A) . . . . . . . . . . . . . . . . . . . . . . . . 2

RULES

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

REGULATIONS

Md. Code Reg. 12.14.03.06(k) (2022) . . . . . . . . . . . . . . . 17

Model Penal Code § 4.01(1) . . . . . . . . . . . . . . . . . . . . . . . 7

Ohio A dmin. Code 5120-9-25(D) (2022) . . . . . . . 14, 15, 17

LEGISLATIVE MATERIALS

146 Cong. Rec. S7774 (July 27, 2000) . . . . . . . . . . 3, 21, 23

vii

Cited Authorities

Page(s)

OTHER AUTHORITIES

A d m i n i s t r at i ve C lo s e S up e r v i s ion Un it

Administrative Segregation Inmate Handbook,

N.J., Personal Hygiene https://www.law.umich.

edu/special/policyclearinghouse/Documents/

New%20Jersey%20Inmate%20Handbook.pdf . . . . 17

Adm i n ist rat ive Reg u lat ion 8 5 0 -11, C ol o .

Dep’t of Corrs. (Feb. 1, 2022), https://drive.

google.com /f i le /d /1w w myNFcn BgHHh_

pmpbZZhxZqgCOSoMDc/view . . . . . . . . . . . . . . . . . 13

Army Directive 2017-03 (Policy for BrigadeLevel Approval of Certain Requests for

Religious Accommodations) (3), Secretary

of t h e A r m y (Jan. 3, 2017), https://api.

army.mil/e2/c/downloads/463407.pdf . . . . . . . . . . . . 10

Besheer Mohamed, New Estimates Show U.S. Muslim

Population Continues to Grow, Pew Research

Center (Jan. 3, 2018), https://www.pewresearch.

org/fact-tank/2018/01/03/new-estimates-showu-s-muslim-population-continues-to-grow/ . . . . . . . . 6

Elizabeth Kuhr, Amer ican Sikhs Push to

End Army Ban on Beards, TIME (Jan.

10, 2014), https://time.com/306/americansikhs-push-to-end-army-ban-on-beards/ . . . . . . . . . . 9

viii

Cited Authorities

Page(s)

Faci lities Div ision, Ga . Dep’t of

C o r r s . , ht t p : // w w w. d c o r. s t a t e . g a . u s /

Divisions/Facilities/Corrections . . . . . . . . . . . . . . . . 16

Facility Handbook, N. D. C orrs . & R eh a b .,

Haircuts and Facial Hair (Aug. 2021), https://

www.docr.nd.gov/sites/www/files/documents/

friends_family/Facility%20Handbook.pdf . . . . . . . . 14

Fe de r a l L aw P r ot e c t ion s for R e l i g iou s

Liber ties, 82 FR 49 6 6 8 (Oct . 6, 2 017),

h t t p s : // w w w. f e d e r a l r e g i s t e r. g o v/

documents/2017/10/26/2017-23269/federal-lawprotections-for-religious-liberty . . . . . . . . . . 22, 23, 24

Fulfilling the Promise of Free Exercise for All:

Muslim Prisoner Accommodation in State

Prisons, Muslim A dvocat es (July 2019),

https://muslimadvocates.org /wp-content/

uplo a d s / 2 019 / 0 7/ F U L F I L L I NG -T H E PROMISE-OF-FREE-EXERCISE-FORALL-Muslim-Prisoner-Accommodation-InState-Prisons-for-distribution-7_23-1.pdf . . . 6, 16, 17

Georg ia Prof ile, P ri s on P olic y I n i t i at i v e

(last visited June 2, 2022), https://w w w.

prisonpolicy.org/profiles/GA.html . . . . . . . . . . . . . . . 16

ix

Cited Authorities

Page(s)

Humane Treatment and Living Conditions

for P r i soner s , M ic h . D e p ’ t o f C o r r s .

(Feb. 2 3, 2 0 0 9), https://w w w.michigan.

gov/-/media/Project/ Websites/corrections/

p ubl ic at ion s / Folde r 3 / 0 3 _ 0 3 _ 13 0 .p d f ?r

ev=ee4aee31e7ff469db657eb92d87acc11 . . . . . . 13, 17

Hygiene, Grooming and Sanitation (AIC), Or .

Dep’t of Corrs. (Apr. 30, 2020), https://secure.

sos.state.or.us/oard/displayDivisionRules.

action?selectedDivision=956 . . . . . . . . . . . . . . . . . . . 14

Incarcerated Individual Hygiene/Grooming

I S - S H - 0 1 , Io wa D e p ’ t o f C o r r s .

(Feb. 2 0 21), https: //doc.iowa .gov/sit es /

defau lt /f i les / i s - sh- 01_ i nc a rcerat ed _

individual_hygiene_grooming.pdf . . . . . . . . . . . . . . 13

Inmate Grooming and Barber/Cosmetology

P r o g r a m s , Pa . D e p ’ t O f C o r r s .

(J u l y 1 , 2 0 16 ) , h t t p s : // w w w. c o r.

p a . g o v/A b o u t % 2 0Us / D o c u m e nt s /

DOC%2 0Pol ic ie s / 8 0 7%2 0I n m at e%2 0

Hygiene%20and%20Grooming.pdf . . . . . . . . . . . 14, 17

Inmate Grooming and Personal Hygiene, Nev.

Dep ’t of Corrs. (Aug. 13, 2010), https://doc.

nv.gov/uploadedFi les/docnvgov/cont ent /

About/Administrative_Regulations/AR%20

705%20-%20No%20Changes.pdf . . . . . . . . . . . . . . . . 14

x

Cited Authorities

Page(s)

Inmate Handbook, A rk. Dep’t of Corrs. (Mar.

2020), https://doc.arkansas.gov/wpcontent/

uploads/2020/09/Inmate_Handbook_Updated_

March_2020_Final_02_28_2020_pdf.pdf . . . . . . . . 15

Inmate Handbook, Conn. Dep’t of Corrs. (Mar.

2014), https://w w w.law.umich.edu/special/

pol icyclea r inghouse / Documents /CT%2 0

-%20Osborne%20Handbook.pdf . . . . . . . . . . . . . . . . 17

In mat e St at ist ic a l P rof i le, G a . D e p ’ t o f

C or r s . (June 1, 2021), http://w w w.dcor.

s t a t e . g a . u s /s i t e s /a l l / t h e m e s /g d c / p d f /

Profile_all_inmates_2019_02.pdf . . . . . . . . . 6, 8, 9, 16

Ja me s M a d i son, Me m o r i a l an d

Remonstrance Against Religious

Assessments (June 20, 1785) . . . . . . . . . . . . . . . . . . . 24

Jea n n i ne Sher ma n, MLFA o n Mem o r i a l

D a y, M l fa ( M a y 2 7, 2 0 2 2) , ht t p s : //

mlfa.org/mlfa-memorial-day/ . . . . . . . . . . . . . . . . . . . 10

Michael Lipka , Muslims and Islam: Key

Fin din gs in the U.S. an d Aro un d the

World, P e w R e se a rch C en t er (Aug. 9,

2017), https://w w w.pewresearch.org/facttank /2017/08/09/muslims-and-islam-keyfindings-in-the-u-s-and-around-the-world/ . . . . . . . . 5

xi

Cited Authorities

Page(s)

Offender Grooming, Clothing, and Personal

Hyg iene , I n d . D e p ’ t o f C o r r s . ( M ay

1, 2019), https://w w w.in.gov/idoc/files/0201-104-Offender-Grooming-5-1-2019-.pdf . . . . . . . . 13

Offender Handbook, M iss . E. C orr . C tr ., 14

(Sept. 2010), https://w w w.law.umich.edu /

special /policyclear inghouse/ Documents/

MO%20-%20Eastern%20Correctional%20

Center%20Offender%20Handbook.pdf . . . . . 13-14, 17

Offender Orientation Handbook, Tex. D ep ’ t

o f C o r r s . ( Fe b . 2 017 ), ht t p s : // w w w.

t d c j . t e x a s . g o v /d o c u m e n t s / O f f e n d e r_

Orientation_Handbook_English.pdf . . . . . . . . . . 8, 16

Offender/ Resident Dress/ Linen Exchange/

Hygiene/Hair Care Policy, M inn. Dep ’t of

Corrs. (July 21, 2020), https://policy.doc.mn.gov/

docpolicy/PolicyDoc.aspx?name=303.020.pdf . . . . . 13

Persona l Hyg iene and Appea rance Code,

Okla. Dep’t of Corrs. (Dec. 6, 2021), https://

ok l a ho m a . g o v/c o nt e nt /d a m /ok /e n /d o c /

documents/policy/section-03/op030501.pdf . . . . . . . 14

Quran 33:56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rabbi Moshe Wiener, Th e Beard: W h ere

C h a s s i d i m a n d Mi s n a g d i m A g r e e

( 2 0 2 0 ) , h t t p s : / / w w w . k o s h e r s h a v e r.

info/publications/files/theBeard.pdf . . . . . . . . . . . . . . 8

xii

Cited Authorities

Page(s)

Sahih Bukhari, Vol. 7, Book 72, No. 781 . . . . . . . . . . . . . 7

S a m a n t h a C o l l i n s , R e l i g i o u s Id e n t i t y

and the Long-Term Effects of Religious

Involvement, Orientation, And Coping in

Prison, T ra nsforming C orrections (Oct.

3, 2018), https://transformingcorrections.

com /rel ig ious -ident it y- a nd-t he -longt er m- ef fec t s - of-r el ig iou s -i nvolvement orientation-and-coping-in-prison/ . . . . . . . . . . . . . . . . 4

S t a n d a r d s fo r O f fe n d e r G r o o m i n g a n d

Attire, D el . D ep ’ t of C or r s . (June 22 ,

2 015), http s: //doc .delawa re.gov/a sset s /

documents/policies/policy_5-3.pdf . . . . . . . . . . . . . . 17

Sunnah, Britannica (last visited June 2, 2022),

https://www.britannica.com/topic/Sunnah . . . . . . . . .7

Sunan Abu Dawood, No. 2356 . . . . . . . . . . . . . . . . . . . . . . 7

Sunan an-Nasa’I, Vol. 4, Book 27, No. 3462 . . . . . . . . . . . 7

Te x a s P rof i le , P r i s o n P ol ic y I n i t i a t i v e

(last visited June 2, 2022), https://w w w.

prisonpolicy.org/profiles/TX.html . . . . . . . . . . . . . . . 16

Th e 2020 Census of Am er ican Reli gio n,

PRRI (July 8, 2021), https://www.prri.org/

research/2020-census-of-american-religion . . . . . . . 6

xiii

Cited Authorities

Page(s)

The Five Ks, BBC (Sept. 9, 2009), https://

w w w. b b c . c o . u k / r e l i g i o n / r e l i g i o n s /

sikhism/customs/fiveks.shtml . . . . . . . . . . . . . . . . . . . 9

“The Religious Freedom Restoration Act: A

Primer,” Congressional Research Service

(Apr. 3, 2020), located at https://crsreports.

congress.gov/product/pdf/IF/IF11490 . . . . . . . . 21-22

Unit Directory, T ex . D ep ’ t of C rim . J. (last

visited June 1, 2022), https://w w w.tdcj.

texas.gov/unit_directory/index.html . . . . . . . . . . . . 15

Wajib, O xford R eference (last visited June

2, 2022), https://www.oxfordreference.com/

view/10.1093/oi/authority.20110803120346473 . . . . . . 7

1

BRIEF OF THE CONSTITUTIONAL LAW CENTER

FOR MUSLIMS IN AMERICA AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1

The Constitutional Law Center for Muslims in America

(“CLCMA”) operates a nonprofit law center dedicated

to protecting individuals’ constitutional rights that are

impacted by national security and immigration policies,

as well as civil rights harmed by discrimination on the

basis of religion, race, or national origin. Institutionalized

Muslims similar to Petitioner Lester Smith seek CLCMA’s

help in protecting their rights to religious expression so

that they may observe the tenets of their sincerely held

religious beliefs, free from unnecessarily restrictive

interference.

If the Eleventh Circuit’s decision stands, CLCMA’s

clients and other inmates will suffer greatly. CLCMA’s

demonstrated experience in this field makes it wellpositioned to enhance this Court’s understanding of the

relevant issues. CLCMA files this Brief in Support of

Petitioner Smith, who seeks a writ of certiorari and the

right to practice his chosen religion in accordance with

his sincerely held religious beliefs, without restrictive

burdens.

1. Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae states that no counsel for a party authored this brief in

whole or in part, and no party or counsel for a party, or any other

person other than amicus made a monetary contribution intended

to fund the preparation or submission of this brief. All parties to

the petition for writ of certiorari consent to amicus filing this brief.

All parties were informed of amicus’ intent to file this amicus brief

more than ten days before filing.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Free Exercise Clause of the First Amendment

to the United States Constitution guarantees the right

of religious expression, even for those within prison

walls. Congress took that right further. In enacting

the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), Congress specifically broadened the

definition of “exercise of religion” to exceed that of the

preceding Religious Freedom Restoration Act (“RFRA”).

Congress moved from defining “exercise of religion” as

“the exercise of religion under the First Amendment” 2

to defining it as “any exercise of religion, whether or

not compelled by, or central to, a system of religious

belief.” 3 This Court recognizes that expansion. Burwell

v. Hobby Lobby Stores, Inc., 573 U.S. 682, 696 (2014). So

does the Eleventh Circuit. Mays v. Joseph, No. 21-10919,

2022 U.S. App. LEXIS 87, at *4 (11th Cir. Jan. 3, 2022)

(recognizing, in an inmate’s beard accommodation case

challenging the Georgia Department of Corrections,

that “RLUIPA provides greater protection of religious

expression to prisoners than the First Amendment” and

“[a]s a result, a RLUIPA claim is wholly separate from

a First Amendment claim and RLUIPA is construed in

favor of broad protection of religious exercise”) (citing

Burwell, 573 U.S. at 695–96). And yet, in this case

the Eleventh Circuit reversed a district court ruling

in 2021 that recognized how the Georgia Department

of Corrections’ policy limiting inmates’ beards to a

half-inch and denying them religious accommodations

violated RLUIPA. Instead, the Eleventh Circuit accepted

2. 42 U.S.C. § 2000bb–2(4).

3. 42 U.S.C. § 2000cc–5(7)(A).

3

Georgia’s intentional disregard of available less restrictive

policies to protect its same interests, simply accepting at

face value Georgia’s “calculated decision” to brush off the

less restrictive policies “that its fellow institutions have

chosen to tolerate.” Pet. of Lester Smith at 2–3.

Muslim inmates like Petitioner Smith and many clients

of amicus view maintaining untrimmed or at least fistlength beards as a required tenet of their sincerely held

religious beliefs, and therefore a necessary part of their

religious expression. Inmates who practice other religions

do as well. And dozens of state institutional systems

across the country recognize ways to accommodate

these religious beliefs without substantially burdening

the inmates’ religious expression. But not Georgia.

As explained more fully and aptly by Petitioner (and

therefore not duplicated here), the Georgia Department of

Corrections did not even explore other potential options to

its narrow policy, nor did it consider what impact (if any)

those options would have on security concerns it identified

as motivating its decision. It just said no. Yet the 37 other

states that did take on this exploration, as well as the

Bureau of Prisons at the federal level, all find a way to

meet both their statutory burdens and the religious needs

of their inmates. Georgia can do the same. The Eleventh

Circuit knows the law requires that. Allowing the current

decision to stand grants other institutions cover to revert

back to the days before Congress passed RLUIPA, when

“[w]hether through indifference, ignorance, bigotry, or

lack of resources, some institutions restrict[ed] religious

liberty in egregious and unnecessary ways.”4 And that

4. Cutter v. Wilkinson, 544 U.S. 709, 716 (2005) (citing 146

Cong. Rec. S7774, S7775 (July 27, 2000) (Joint Statement of Sens.

Hatch and Kennedy)).

4

runs directly counter to the intent Congress clearly

expressed.

ARGUMENT

America itself exists because it provided early

settlers with refuge from religious persecution. Religious

freedoms formed a cornerstone of American values from

day one; they still do today. The right to religious freedom

does not end at the prison gates.5 Policies and actions of

prison officials, like those by Georgia’s state officials,

infringe on precisely the same protected right to religious

expression that first necessitated America’s existence.

Inmates’ rights to religious expression in prisons

directly correlate with lowered recidivism rates and

disciplinary infractions.6 Even setting aside those benefits,

inmates nonetheless retain the rights guaranteed by the

First Amendment to the United States Constitution and

as further extended by Congress in RLUIPA.

5. See generally Turner v. Safley, 482 U.S. 78, 84 (1987)

(“Prison walls do not form a barrier separating prison inmates

from the protections of the Constitution”); see also Bell v. Wolfish,

441 U.S. 520, 545 (1979) (holding that prisoners do not forfeit

constitutional protections because of their imprisonment); Wolff

v. McDonnell, 418 U.S. 539, 555–56 (1974) (observing that “there

is no iron curtain” between the Constitution and prisons).

6. See, e.g., Samantha Collins, Religious Identity and the

Long-Term Effects of Religious Involvement, Orientation, And

Coping in Prison, T ransforming Corrections (Oct. 3, 2018),

https://transformingcorrections.com/religious-identity-and-thelong-term-effects-of-religious-involvement-orientation-andcoping-in-prison/.

5

Petitioner Lester Smith, a devout Muslim in the care of

the Georgia Department of Corrections (“GDOC”), seeks

the right to grow an untrimmed beard in accordance with

his sincerely held religious beliefs. An institutionalized

person, he values the exercise of his faith as one of the

few freedoms he retains. The policies and actions of

GDOC infringe upon that right, without seeking the

least restrictive means available to protect its compelling

interests.

I.

GDOC’s Ban on Untrimmed Beards Infringes on

Muslim and Other Inmates’ Rights to Religious

Expression

RLUIPA is a bipartisan law passed in relevant part

to protect the religious rights of institutionalized persons.

The actions of GDOC curtail the religious practices of

Muslim and other inmates, thereby violating RLUIPA.

GDOC’s refusal to amend its antiquated beard length

policies infringes on the equal rights of Muslim and other

inmates.

A.

Maintaining an Untrimmed Beard Constitutes

a Core Tenet of Islam and Other Faiths

Islam, the third of the Abrahamic faiths, builds upon

many Judaic and Christian teachings. Nearly two billion

people in the world identify as Muslim.7 In the United

7. See, e.g., Michael Lipka, Muslims and Islam: Key

Findings in the U.S. and Around the World, P ew Research

C enter (Aug. 9, 2017), https://w w w.pewresearch.org/facttank/2017/08/09/muslims-and-islam-key-findings-in-the-u-s-andaround-the-world/.

6

States alone, between three and six million people selfidentify as Muslim, representing between one to two

percent of the population. 8 While Muslims make up about

one percent of the U.S. population, they disproportionately

represent almost nine percent of state prisoners. 9 In

Georgia, between 6% and 8% of inmates self-identify as

Muslim at entry.10 No information suggests this trend will

reduce, and it remains likely to rise as the percentage of

incarcerated Muslims increases in many other states.11

The comprehensive religion of Islam instructs its

followers on nearly all aspects of life. Islamic practice

contains many compulsory acts for sane adult Muslims.12

8. See, e.g., Besheer Mohamed, New Estimates Show U.S.

Muslim Population Continues to Grow, Pew Research Center

(Jan. 3, 2018), https://www.pewresearch.org/fact-tank/2018/01/03/

new-estimates-show-u-s-muslim-population-continues-to-grow/;

The 2020 Census of American Religion, PRRI (July 8, 2021),

https://www.prri.org/research/2020-census-of-american-religion/.

9. Fulfilling the Promise of Free Exercise for All: Muslim

Prisoner Accommodation in State Prisons, Muslim A dvocates,

38 (July 2019), https://muslimadvocates.org /w p - content /

uploads/2019/07/FULFILLING-THE-PROMISE-OF-FREEEXERCISE-FOR-ALL-Muslim-Prisoner-AccommodationIn-State-Prisons-for-distribution-7_23-1.pdf (“Fulfilling the

Promise”).

10. Inmate Statistical Profile, Ga . Dep’t of Corrs., 8 (June

1, 2021), http://www.dcor.state.ga.us/sites/all/themes/gdc/pdf/

Profile_all_inmates_2019_02.pdf; for the purposes of this figure,

those who identify as Nation of Islam were included in the total

percentage of Muslims in GDOC; cf. Fulfilling the Promise, supra

n.9.

11. Fulfilling the Promise, at 39–45.

12. This distinction acknowledges the belief in Islam that

7

These include praying five times daily, abstaining from

eating pork, and fasting during Ramadan. Some other

acts qualify as highly recommended, or sunnah.13 Some

sunnah acts do rise to the level of wajib, or “required,”

and therefore have de facto mandatory status.14 Many

schools of Islamic thought regard the obligation of Muslim

men to maintain untrimmed beards as mandatory. This

belief derives from the hadith,15 a narration of events or

actions done by the Prophet Muhammad.16 The hadith

instructs Muslim men to trim mustaches, yet leave

beards untrimmed.17 Common interpretations include

those not capable of controlling their bodies or minds shall not be

held culpable for their actions. Compare Sunan an-Nasa’I, Vol. 4,

Book 27, No. 3462 (“The pen has been lifted from three: From the

sleeper until he wakes up, from the minor until he grows up, and

from the insane until he comes back to his senses or recovers”) with

Model Penal Code § 4.01(1) test (explaining that a legally insane

defendant cannot be held accountable for crimes which occur as a

result of the condition). By contrast, a young child or someone with

significant mental delays need not adhere to the same religious

standards expected of a neurotypical adult in Islam.

13. Sunan Abu Dawood, No. 2356.

14. Wajib, O x f or d R ef er ence (last v isited June 2 ,

2 022), https://w w w.ox fordreference.com /v iew/10.1093/oi /

authority.20110803120346473 (explaining that wajib acts are

obligatory acts in Islamic jurisprudence).

15. Hadith constitute the primary source of sunnah

practices. Sunnah, Britannica (last visited June 2, 2022), https://

www.britannica.com/topic/Sunnah.

16. The practice of Islam also requires that its adherents

follow references to the Prophet Muhammad with the blessing that

“peace be upon him.” See, e.g., Quran 33:56 (instructing Muslims

to confer prayers and well wishes upon the Prophet Muhammad).

17. Sahih Bukhari, Vol. 7, Book 72, No. 781.

8

maintaining a fist-length beard; others interpret this to

mean beards of four or five inches.18

Beards bear significant religious meaning beyond just

Islam. Certain Jewish denominations hold the maintenance

of beards as holy. Some Jewish scholars believe the

religion “prohibit[s] any removal and even trimming of

the beard.”19 Historic accounts show that nearly all Jewish

men maintained beards until the end of the 19th century,

when clean-shaven men became the secular cultural

norm. 20 The Chofetz Chaim, “the undisputed leader and

halachic authority of non-Chassidic Jewry,” published

a booklet that “systematically and vigorously refute[s]

all the justifications being advanced to defend removing

the beard . . . declaring these justifications were against

the Torah.” 21 Many Jewish inmates maintain beards for

religious reasons. Per a 2021 report, 122 Georgia inmates

self-identify as Jewish or Messianic Jewish. 22

18. Offender Orientation Handbook, Tex. Dep’t of Corrs.,

(A)(5) (Feb. 2017), https://w w w.tdcj.texas.gov/documents/

Offender_Orientation_Handbook_English.pdf (requiring that

religious beards shall be no more than fist length and cannot

exceed four inches outward from the face).

19. Rabbi Moshe Wiener, The Beard: Where Chassidim

and Misnagdim Agree, 5 (2020), https://www.koshershaver.info/

publications/files/theBeard.pdf.

20. Id. at 8.

21. Id.

22. Inmate Statistical Profile, Ga . Dep’t of Corrs., 8 (June

1, 2021), http://www.dcor.state.ga.us/sites/all/themes/gdc/pdf/

Profile_all_inmates_2019_02.pdf.

9

The Sikh religion also requires facial hair be unshorn.23

Restrictive grooming policies in prisons arise around the

country, with courts ruling to trim those policies instead

of the beards. For example, the Arizona Department of

Corrections forcibly shaved an inmate’s beard in 2020,

which he had never cut previously. 24 While the focus of

Petitioner Smith’s action centers on his own religious

need to maintain a beard, other inmates also suffer harm

under GDOC’s arbitrary and unduly restrictive policy that

remain in effect. 25

B. The Armed Forces Recognize and Accommodate

Religious Beards

Much like GDOC does now, the U.S. Army previously

maintained a uniform policy with no room to deviate for

religious purposes. That changed. Major Kamal Kalsi,

a Sikh man observing beard and turban requirements,

and a fellow Sikh soldier ultimately won the right to

keep their beards and turbans. 26 Since then, the Army

23. See, e.g., The Five Ks, BBC (Sept. 9, 2009), https://www.

bbc.co.uk/religion/religions/sikhism/customs/fiveks.shtml.

24. A copy of this Department of Justice complaint is

available at https://w w w.aclu.org /sites/default/files/field_

document/2021-05-24_doj_complaint.pdf.

25. Per a 2021 report published by Georgia, there were no

known Sikh inmates at that time; nonetheless, there may be today,

or at any point in the future. Inmate Statistical Profile, Ga . Dep’t

of Corrs ., 8 (June 1, 2021), http://www.dcor.state.ga.us/sites/all/

themes/gdc/pdf/Profile_all_inmates_2019_02.pdf

26. See, e.g., Elizabeth Kuhr, American Sikhs Push to End

Army Ban on Beards, TIME (Jan. 10, 2014), https://time.com/306/

american-sikhs-push-to-end-army-ban-on-beards/; see also Singh

v. Carter, 168 F. Supp. 3d 216 (D.C. Cir. 2016).

10

revised its policies and now allows people of faith to

wear their religious garb and maintain beards in most

circumstances. 27, 28

II. The Eleventh Circuit’s Holding Gives States Too

Much Deference, Contradicting Both RLUIPA and

This Court’s Precedent

The Eleventh Circuit’s holding provides states with

a degree of deference that violates both RLUIPA and

this Court’s precedent. That level of deference negates

the requirement that institutions demonstrate that, no

matter how compelling their interest, they employ the

least restrictive means available to protect that interest.

A.

The Eleventh Circuit’s Holding Takes the

Teeth out of Binding Precedent, Giving States

the Unfettered Deference This Court Already

Rejected

The Eleventh Circuit’s holding erroneously strips both

Holt v. Hobbs29 and RLUIPA of any impact, as correctly

noted by the dissent. Smith v. Owens, 13 F.4th 1319,

27. See, e.g., Army Directive 2017-03, Policy for Brigade-Level

Approval of Certain Requests for Religious Accommodations,

Secretary of the A rmy (3) (Jan. 3, 2017), https://api.army.mil/

e2/c/downloads/463407.pdf.

28. Amicus counsel previously represented Army SPC.

Ehsan Azzami, a Muslim service member who gained approval in

2017 to maintain his beard in accordance with his religious beliefs.

See Jeannine Sherman, MLFA on Memorial Day, Mlfa (May 27,

2022), https://mlfa.org/mlfa-memorial-day/.

29. 574 U.S. 352 (2015).

11

1338–39 (11th Cir. 2021) (Martin, dissenting) (critiquing

the majority approach as “inconsistent with Holt” and

“render[ing] the Supreme Court’s command in Holt

meaningless”). RLUIPA recognizes that power imbalance

rests with institutions and not the institutionalized.

Congress enacted RLUIPA to recalibrate that imbalance

and protect individuals’ religious rights. The Eleventh

Circuit’s holding tips the scales back to pre-RLUIPA

status, with faulted reasoning providing the appearance

of this Court’s and Congress’ blessing.

This Court made clear in Holt 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. Similarly, this Court in Ramirez ruled that Texas

erroneously failed to rebut “obvious alternatives,” much

like Georgia does here. Ramirez v. Collier, 142 S. Ct. 1264,

1281 (2022); see also id. at n.2 (Kavanaugh, J., concurring)

(“recent experience in other States can be informative in

analyzing whether the State has a sufficiently compelling

interest and has employed the least restrictive means”).

Despite this clear precedent, the Eleventh Circuit

accepted GDOC’s unsupported assertions at face value and

ignored directly comparable policies and practices from

other states’ institutions. 30 The Eleventh Circuit’s holding

contrasts with RLUIPA and governing case law, with

no evidence in the record to justify this divergence. But

RLUIPA “does not permit such unquestioning deference.”

Holt, 574 U.S. at 364.

30. Smith, 13 F.4th at 1337.

12

B. Risk Aver sion A lone Fa ils t o S atisf y

Institutions’ Burdens

Before this Court’s ruling in Holt, many state prison

systems did not allow beards at all based on safety,

security, and hygiene concerns. Post-Holt, every state now

allows beards of some length, and most states’ institutions

allow beards longer than the half-inch length of Georgia’s

policies, particularly to accommodate religious beliefs. 31

Many states allow inmates to grow facial hair in any

style they want, with only the caveat that inmates trim

their hair if length or cleanliness become a safety, health,

or sanitation problem. The district court acknowledged

this fact. Smith v. Dozier, 5:12-cv-26, 2019 U.S. Dist.

LEXIS 132234, at *19 (M.D. Ga. Aug. 7, 2019) (explaining

that 37 states and the Bureau of Prisons allow untrimmed

beards). See, e.g., Colorado (allowing beards “provided

they are kept neat and clean” and when length or style is a

sanitation of safety problem, corrective measures such as

31. The district court correctly noted that 37 states allow

untrimmed beards. See, e.g., Smith v. Dozier, 5:12-cv-26, 2019

U.S. Dist. LEXIS 132234, at *19 (M.D. Ga. Aug. 7, 2019) (citing

Plaintiff’s Doc. 236 at 162–63; Doc. 176 at 2; Doc. 213 at 13). Since

the district court’s opinion, Virginia also changed its policy and

now allows inmates to grow beards of any length. Greenhill v.

Clarke, 944 F.3d 243, 248 (4th Cir. 2019). But GDOC grants itself

exactly the type of categorical exception prohibited by RLUIPA

and Holt, merely asserting general safety and security concerns

without examining the viability of other less restrictive options.

That does not comply with the law. Cf. Ramirez v. Collier, 142

S. Ct. 1264, 1280 (2022) (holding that “[c]onjecture alone fails to

satisfy the sort of case-by-case analysis that RLUIPA requires”).

13

wearing hair nets or job reassignment will be enforced);32

Indiana (“Facial hair, mustaches, goatees and beards shall

be clean and neatly trimmed at all times”);33 Iowa (allowing

beards and implementing alternative measures where

length or style presents a health or sanitation problem);34

Michigan (“Prisoners shall be permitted to maintain

head and facial hair in accordance with their personal

beliefs provided that reasonable hygiene is maintained”);35

Minnesota (“Hair, including facial hair and eyebrows,

must be kept clean and may not be styled or cut to contain

lettering, signs, or symbols);36 Missouri (“Hair and beards

will be clean and neatly groomed”);37 Nevada (allowing

32. Administrative Regulation 850-11, C olo . D ep ’ t of

Corrs ., J(2)(c)–(d) (Feb. 1, 2022), https://drive.google.com/file/

d/1wwmyNFcnBgHHh_pmpbZZhxZqgCOSoMDc/view.

33. Offender Grooming, Clothing, and Personal Hygiene

02-01-104, Ind. Dep’t of Corrs., X (May 1, 2019) (“Facial hair,

mustaches, goatees and beards shall be clean and neatly trimmed

at all times”), https://www.in.gov/idoc/files/02-01-104-OffenderGrooming-5-1-2019-.pdf.

34. Incarcerated Individual Hygiene/Grooming IS-SH-01,

Iowa Dep’t of Corrs., C(3) (Feb. 2021), https://doc.iowa.gov/sites/

default/files/is-sh-01_incarcerated_individual_hygiene_grooming.

pdf.

3 5. Humane T reatment and Liv ing Conditions for

Prisoners, Mich. Dep’t of Corrs., D (Feb. 23, 2009), https://www.

michigan.gov/-/media/Project/Websites/corrections/publications/

Folder3/03_03_130.pdf?rev=ee4aee31e7ff469db657eb92d87acc11.

36. Offender/Resident Dress/Linen Exchange/Hygiene/Hair

Care Policy, Minn. Dep’t of Corrs., C(1) (July 21, 2020), https://

policy.doc.mn.gov/docpolicy/PolicyDoc.aspx?name=303.020.pdf.

37. Offender Handbook, M iss . E. C orr . C tr ., 14 (Sept.

2010), https://www.law.umich.edu/special/policyclearinghouse/

14

inmates personal freedom in personal grooming as long as

that does not conflict with safety, security, identification,

and hygiene);38 North Dakota (allowing beards that are

trimmed and clean); 39 Ohio (allowing facial hair that

is neatly trimmed and identifying search methods);40

Oklahoma (specifying that inmates may grow facial hair

that does not conflict with security, sanitation, safety, or

health requirements of the agency after initial shaving at

intake);41 Oregon (requiring that facial hair be maintained

cleanly and neatly, and specifying search methods);42 and

Pennsylvania (allowing inmates to maintain hair at any

length).43 And, one year after Holt, Arkansas removed

Documents/MO%20-%20Eastern%20Correctional%20Center%20

Offender%20Handbook.pdf; note that this policy comes from the

handbook of a specific facility.

3 8 . Inmate Grooming and Personal Hyg iene, N e v.

Dep ’t of C orrs ., 705.01(1)–(1)(A) (Aug. 13, 2010), https://doc.

nv.gov/uploadedFiles/docnvgov/content/About/Administrative_

Regulations/AR%20705%20-%20No%20Changes.pdf.

39. Facility Handbook, N. D. Corrs. & Rehab., Haircuts and

Facial Hair (Aug. 2021), https://www.docr.nd.gov/sites/www/files/

documents/friends_family/Facility%20Handbook.pdf.

40. Ohio Admin. Code 5120-9-25(D) (2022).

41. Personal Hygiene and Appearance Code, Okla . Dep’t of

Corrs., A(2) (Dec. 6, 2021), https://oklahoma.gov/content/dam/ok/

en/doc/documents/policy/section-03/op030501.pdf.

42. Hygiene, Grooming and Sanitation (AIC), Dep’t of Corrs.,

291-123-0015 (2)(a)–(e) (Apr. 30, 2020), https://secure.sos.state.

or.us/oard/displayDivisionRules.action?selectedDivision=956.

43. Inmate Grooming and Barber/Cosmetology Programs,

Pa . Dep’t of Corrs., DC-ADM 807 (July 1, 2016), https://www.

cor.pa.gov/About%20Us/Documents/DOC%20Policies/807%20

Inmate%20Hygiene%20and%20Grooming.pdf.

15

all beard length restrictions.44 Several states, including

Ohio, Colorado, and Iowa, incorporate language requiring

inmates with beards who work in kitchens or other jobs

presenting specific sanitation and safety concerns to wear

hair nets or be reassigned to different jobs.45 And Ohio

requires that all hair, including facial hair, must remain

readily searchable.46

Each of these policies represents a less restrictive

means to further the same compelling government interest

espoused by GDOC, yet Georgia will not implement these

alternatives. GDOC asserts that its facilities somehow

differ from those in the dozens of other states identified

above. Smith v. Dozier, No. 5:12-cv-26, 2019 U.S. Dist.

LEXIS 132234, at *26 (M.D. Ga. Aug. 7, 2019) (claiming

GDOC’s needs differ due to its numbers and staff

ratios). GDOC relies only on self-serving and conclusory

testimony from its own officials. See, e.g., Smith, 13 F.4th

at 1323–26. These threadbare and unsupported assertions

fall flat when compared to Texas, which successfully

maintains 99 facilities with less restrictive policies.47 Texas

44. Inmate Handbook, A rk. Dep’t of Corrs., 8 (Mar. 2020),

https://doc.arkansas.gov/wp-content/uploads/2020/09/Inmate_

Handbook_Updated_March_ 2020_Final_02_ 28_ 2020_ pdf.

pdf (“If an inmate chooses to maintain facial hair, it must be worn

loose, clean and neatly combed“).

45. See nn. 25, 27, and 33, supra.

46. Ohio A dmin. Code 5120-9-25(D) (2022).

47. This number includes cor rectional institutions,

developmental disability programs, and substance abuse felony

punishment facilities. This figure also encompasses both privately

run institutions and those run by the applicable governmental

entities. Unit Directory, Tex. Dep’t of Crim. J. https://www.tdcj.

texas.gov/unit_directory/index.html (last visited June 1, 2022).

16

facilities allow inmates to grow up to four-inch beards for

religious reasons.48 Comparably, GDOC encompasses 92

facilities.49 Texas has 251,000 institutionalized persons,

compared to Georgia’s 102,000 institutionalized persons.50

And yet a risk-averse state like Texas manages to both

respect inmates’ religious needs more than Georgia, and

simultaneously uphold its safety and security interests.

Georgia views this task as impossible, expecting the

courts to excuse it from this requirement entirely.

As the fourth highest incarceration rate titleholder,

Georgia relies on its numbers to justify its comparatively

draconian policy. As of 2019, between 6% and 8% of

Georgia’s inmates self-identify as Muslim. 51 That number

represents the sixteenth-highest Muslim prisoner

percentage across all state prison systems, much lower

than its fourth place overall incarceration rank. Id. Of

the fourteen states and D.C. which rank higher in Muslim

percentages, nine employ more lenient beard policies

allowing beards of any length or allowing beards longer

48. Offender Orientation Handbook, Tex. Dep’t of Crim. J.,

III(A)(5)(a) (Feb. 2017), https://www.tdcj.texas.gov/documents/

Offender_Orientation_Handbook_English.pdf (“Religious beards

shall be no more than fist length and not exceed four inches

outward from the face”).

49. Facilities Division, Ga. Dep’t of Corrs., http://www.dcor.

state.ga.us/Divisions/Facilities/Corrections.

50. Texas Profile, P rison P olic y I niti ati v e , https://

www.prisonpolicy.org/profiles/TX.html (last visited June 2,

2022); Georgia Profile, Prison Policy Initiative, https://www.

prisonpolicy.org/profiles/GA.html (last visited June 2, 2022).

51. Fulfilling the Promise, 38; cf. Inmate Statistical Profile,

supra n. 10.

17

than GDOC’s half-inch restriction. 52 GDOC’s policies

impose a disproportionate restriction on its Muslim

population compared to states with higher percentages

of Muslim inmates.

Much like Texas initially did in Ramirez, GDOC fails

to demonstrate how its ban on beards longer than a halfinch constitutes the least restrictive means of furthering

its compelling government interests. “Instead, they ask

that we simply defer to their determination.” Ramirez,

142 S. Ct. at 1279; cf. Smith v. Owens, 13 F.4th at 1323-24

52. Fulfilling the Promise, 37–38; Inmate Handbook,

A rk . Dep ’t of Corrs., 8 (Mar. 2020), https://doc.arkansas.gov/

w pcontent /uploads/2020/09/ Inmate_Handbook_Updated_

March_2020_Final_02_28_2020_pdf.pdf; Standards for Offender

Grooming and Attire, Del. Dep’t of Corrs. (June 22, 2015), https://

doc.delaware.gov/assets/documents/policies/policy _5-3.pdf;

Md. Code Regs. 12.14.03.06(K) (2022); Humane Treatment and

Living Conditions for Prisoners, Mich. Dep’t Of Corrs., D (Feb.

23, 2009) https://www.michigan.gov/- /media/Project/Websites/

corrections/publications/Folder3/03_03_130.pdf?rev=ee4aee31e7f

f469db657eb92d87acc11; Offender Handbook, M iss . E. C orr .

C enter , 14 (Sept. 2010), https://www.law.umich.edu/special/

policyclearinghouse/ Documents/ MO%20 - %20Eastern%20

Correctional%20Center%20Offender%20Handbook.pdf; Inmate

Grooming and Barber/Cosmetology Programs, Pa. Dep’t Of Corrs.,

Dc-A dm 807 (July 1, 2016), https://www.cor.pa.gov/About%20Us/

Documents/DOC%20Policies/807%20Inmate%20Hygiene%20an

d%20Grooming.pdf; 3 Ohio Admin. Code 5120-9-25(D) (2022);

Inmate Handbook, Conn. Dept of Corrs., D(2) (Mar. 2014), https://

www.law.umich.edu/special/policyclearinghouse/Documents/

CT%20-%20Osborne%20Handbook.pdf; Administrative Close

Supervision Unit Administrative Segregation Inmate Handbook,

N.J., P ersonal Hygiene , https://www.law.umich.edu/special/

policyclearinghouse/Documents/New%20Jersey%20Inmate%20

Handbook.pdf.

18

(speculating about contraband and risks of untrimmed

beards). Even in the face of contrary testimony, GDOC

maintains it cannot safely accommodate untrimmed or

fist-length beards. See, e.g., Smith, 13 F.4th at 1323–25

(explaining the types of contraband GDOC experts have

witnessed, and the dangers presented by contraband

and ease in altering appearances); see also id. at Doc.

236, at 117–119; Doc. 236 (explaining BOP’s self-search

methodology). GDOC asserts that allowing untrimmed

beards would allow contraband into its facilities, causing

logistical and safety difficulties. But GDOC merely

speculates about this impact; it has never allowed inmates

to grow longer beards. 53 See, e.g., Ramirez, 142 S. Ct.

at 1280 (rejecting an argument that “comes down to

conjecture regarding what a hypothetical spiritual advisor

might do in some future case” as “’insufficient to satisfy’

respondents’ burden”) (quoting Fulton v. Philadelphia,

141 S. Ct. 1868, 1882 (2021)). RLUIPA requires that GDOC

engage in a case-by-case factual analysis, considering

all viable religious accommodations. It refuses. Id. at 15.

GDOC’s fears of contraband find no factual foundation

since it simultaneously permits inmates to grow head

hair up to three inches on top, six times longer than the

beards it permits. Yet GDOC does not articulate how hair

on inmates’ heads and hair on inmates’ faces meaningfully

differ; if contraband hides in one, it can hide in the other.

If GDOC safely checks for contraband in head hair, it can

safely check for contraband in beards of three inches.

53. GDOC’s experts testified that inmates smuggle

contraband on their person, in their clothes, and everywhere else

possible. Smith v. Owens, 13 F.4th at 1323–24 (11th Cir. 2021). And

the former director of the Virginia Department of Corrections

testified that contraband that could be hidden in beards does not

differ from contraband hidden elsewhere. Id.

19

Justice Kavanaugh’s concur rence in Ramirez

addresses the level of risk of disruption that states must

accept. Ramirez, 142 S. Ct. at 1285-90 (Kavanaugh, J.,

concurring). That analysis proves instructive here. This

Court may look to other states’ practices to determine

whether GDOC violated RLUIPA in refusing to permit

longer beards as religious accommodations. Several states

allow beards of any length, and several more allow beards

significantly longer than Georgia does. Ramirez, 142 S.

Ct. at n.2. Comparisons to other states’ policies show that

GDOC could employ less restrictive means. “Although the

compelling interest and least restrictive means standards

are necessarily imprecise, history and state practice can

at least help structure the inquiry and focus the Court’s

assessment of the State’s arguments.” Id. at 1288.

This Court unanimously held that RLUIPA’s test “is

exceptionally demanding on states” and “requires the

[State] to show that it lacks other means of achieving its

desired goal.” Holt, 574 U.S at 364 (citing Burwell, 573

U.S. at 728). GDOC cannot make this showing. Because

other states’ “well-run institutions” achieve the same

relevant interest with less burden on inmates’ religious

exercise, GDOC must “at a minimum offer persuasive

reasons why it believes that it must take a different

course.” Id. at 368–69; see also Dunn v. Smith, 141 S. Ct.

725, 725 (2021) (Kagan, J., concurring) (recognizing that

“past practice, in Alabama and elsewhere” demonstrates

how to accommodate the requested religious practice).

In rejecting other states’ practices, GDOC bears the

burden. See Mast v. Fillmore Cnty., 141 S. Ct. 2430,

2433 (2021) (Gorsuch, J., concurring) (recognizing that

“lower courts failed to give sufficient weight to rules in

other jurisdictions”). And this Court held that failure to

address other jurisdictions’ practices fails even under

20

intermediate scrutiny. McCullen v. Coakley, 573 U.S.

464, 490 (2014) (holding the failure to identify comparable

approaches “raise[s] concern that the Commonwealth has

too readily foregone options that could serve its interests

just as well”).

III. Existing Frameworks Provide Relevant Guidance

This Court need not approach the question of

balancing the relevant concerns in the dark. The Court’s

own prior holdings, as well as closely analogous statutes,

provide a sufficient framework for allocating burdens that

comports with Congress’ intent for RLUIPA.

A.

Religious Freedom Restoration Act, RLUIPA’s

Older Sibling

This Court knows RLUIPA’s origin story well.

Fi rst encompassed w ithin the RFR A , Cong ress

enacted RLUIPA as its “second attempt to guarantee

by statute the broad protection of religious exercise”

by institutionalized persons. Sossoman v. Texas, 563

U.S. 277, 303 (2011) (Sotomayor, J., dissenting) (internal

citations omitted). After this Court deemed the inclusion

of these concepts in RFRA unconstitutional as applied to

state and local governments, 54 “Congress responded by

enacting RLUIPA[,]” which “borrows important elements

from RFRA[.]” Sossoman, 563 U.S. at 281 (Thomas, J.,

writing for the majority); see also Cutter, 544 U.S. at 715.

When creating RLUIPA, “Congress carried over from

RFRA the ‘compelling interest’/’least restrictive means’

standard.” Cutter, 544 U.S. at 717; see also Gonzales v. O

54. See City of Boerne v. Flores, 521 U.S. 507 (1997);

Employment Div., Dep’t of Hum. Res. of Or. v. Smith, 494

U.S. 872 (1990).

21

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.

418, 436 (2006) (recognizing that RLUIPA allows “state

prisoners to seek religious accommodations pursuant

to the same standard as set forth in RFRA”). Since its

inception, Congress, this Court, and even the Department

of Justice have viewed the standards in RLUIPA as

parallel to those in RFRA: “We do not believe RLUIPA

would have an unreasonable impact on prison operations.

RFRA has been in effect in the Federal prison system for

... years and compliance with that statute has not been an

unreasonable burden to the Federal prison system.” Id.

at 725–26 (quoting 146 Cong. Rec. S7776 (July 27, 2000)

(Letter from Department of Justice to Senator Hatch));

see also Holt, 574 U.S. at 358 (holding that RLUIPA allows

prisoners “to seek religious accommodations pursuant to

the same standard as set forth in RFRA”); Burwell, 573

U.S. at 696 n. 5 (holding that “the ‘exercise of religion’

under RFRA must be given the same broad meaning that

applies under RLUIPA”); see also Mays, 2022 U.S. App.

LEXIS 87, at *4 (recognizing that Congress broadened

the definition in RLUIPA for “exercise of religion”) (citing

Burwell, 573 U.S. at 695–96). Georgia bears no heavier

compliance burden than does the Federal Bureau of

Prisons. And it provides no reason it should bear less.

Once individuals demonstrate that a government

policy substantially burdens religious exercise, “the action

is valid only if the government shows that the burden is

(1) in furtherance of a compelling governmental interest

and (2) the least restrictive means of furthering that

interest. This standard is high, but not impossible, for the

government to meet.”55 Georgia here seeks to bypass the

55. “The Religious Freedom Restoration Act: A Primer,”

C ongres siona l R esea rch S erv ice (Apr. 3, 2020), https://

22

second prong entirely. The Eleventh Circuit’s ruling lets

it do just that. But the law does not.

B. Guidance by the Federal Government Clarifies

Any Doubt

Federal government guidance as referenced above

clarifies and eliminates any lingering doubts as to the

burdens states bear to justify policies burdening inmates’

religious exercise. The strict scrutiny standard imposed,

while “a high bar,” is “not impossible” to meet. 56 Here,

Georgia doesn’t even try. Federal policy requires that

“to the greatest extent practicable and permitted by law,

religious observance and practice should be reasonably

accommodated in all government activity.” 57 State

policies have no less burden. In fact, “[r]equiring a State

to demonstrate a compelling interest and show that it

has adopted the least restrictive means of achieving

that interest is the most demanding test known to

constitutional law.”58

crsreports.congress.gov/product/pdf/IF/IF11490; see also Dunn,

141 S. Ct. at 725 (recognizing the “high bar” and “exceptionally

demanding” standard institutions must clear to justify any policy

which imposes a substantial burden on a prisoner’s religious

exercise) (Kagan, J., concurring and joined by Justices Breyer,

Sotomayor and Barrett).

56. See note 55, supra.

57. Federal Law Protections for Religious Liberties,

82 FR 49668 (Oct. 6, 2017), https://www.federalregister.gov/

documents/2017/10/26/2017-23269/federal-law-protections-forreligious-liberty.

58. Id. (quoting Flores, 521 U.S. at 534).

23

And “[e]ven if the federal government could show

the necessary interest, it would also have to show that its

chosen restriction on free exercise is the least restrictive

means of achieving that interest. That analysis requires

the government to show that it cannot accommodate the

religious adherent while achieving its interest through

a viable alternative.”59 This is the part Georgia ignores.

But the law does not, addressing this through statute, this

Court’s precedent, and the referenced federal guidance.

C.

Congress’ Intent is Clear

As discussed above, Congress persisted in enacting

RLUIPA after more than one try, determined to preclude

by statute the “frivolous or arbitrary barriers” it

documented over three years of hearings as “imped[ing]

institutionalized persons’ religious exercise.” Cutter, 544

U.S. at 716 (citing 146 Cong. Rec. S7774, S7775 (July 27,

2000) (Joint Statement of Sens. Hatch and Kennedy)).

Congress recognized that “[w]hether through indifference,

ignorance, bigotry, or lack of resources, some institutions

restrict religious liberty in egregious and unnecessary

ways.” Id. It further recognized that “[i]nstitutionalized

residents’ right to practice their faith is at the mercy of

those running the institution.” Cutter, 544 U.S. at 721

(quoting Joint Statement at S7775).

And Congress never negated operational security

concerns with RLUIPA. Congress recognized the need

for “due deference to the experience and expertise of

prison and jail administrators,” drafting RLUIPA to

incorporate that. Cutter, 544 at 717, 723 (quoting Joint

59. Id.

24

Statement at S7775). But while “state prison officials make

the first judgment about whether to provide a particular

accommodation,” theirs is not the only judgment

considered. Cutter, 544 U.S. at n. 12. Total deference

to state prison officials created the exact situation

necessitating three years of Congress’ time in hearings

and two versions of the statute. The Eleventh Circuit and

the Georgia Department of Corrections completely negate

the clearly expressed intent of a bipartisan Congress to

rein in states’ unfettered judgment. The “due deference”

given by Congress to state prison officials does not require

capitulation; it requires factual analysis, and a showing

that any less restrictive means of accommodating the

religious exercise would be “factually impossible” without

compromising prison security. Id. If this Court accepted

the position set forth by Georgia and sanctioned by the

Eleventh Circuit, “all manner of religious accommodations

would fall.” Cutter, 544 U.S. at 724. The Bureau of Prisons

for decades now “has managed the largest system in the

Nation under the same heightened scrutiny standard as

RLUIPA without compromising prison security” or public

safety.60 Surely Georgia’s burdens are not more extensive.

60. Cutter, 544 U.S. at 725 (quoting the Br. for Amicus United

States, at 24).

25

CONCLUSION

“Except in the narrowest circumstances, no one should

be forced to choose between living out his or her faith and

complying with the law.”61 The Constitution protects this

foundation principle of religious expression. Congress codified

it with RFRA, then expanded it further with RLUIPA.

This Court has protected it in Cutter v. Wilkinson, Burwell

v. Hobby Lobby, Holt v. Hobbs, and Ramirez v. Collier,

to name just a few. Muslim, Jewish and all other inmates

deserve and receive the same protection under our law. The

Eleventh Circuit’s holding as to Petitioner Smith ignores that

cornerstone protection. Allowing that holding to stand risks

eroding decades of law and practice protecting it. And no

burden which the Georgia Department of Corrections may

speculate it could hypothetically face outweighs the substantial

burden its existing policy places on Petitioner Smith and

others like him. For these reasons, the Constitutional Law

Center for Muslims in America respectfully requests this

Court grant the Petition of Lester Smith.

Respectfully submitted,

Christina A. Jump

Counsel of Record

Najmu Mohseen

A lyssa F. Morrison

Constitutional Law Center

for Muslims in A merica

100 North Central Expressway,

Suite 1010

Richardson, Texas 75080

(972) 914-2507

cjump@clcma.org

61. Federal Law Protections for Religious Liberties, supra n.

57 (citing James Madison, Memorial and Remonstrance Against

Religious Assessments (June 20, 1785)).