John G. Roberts, Jr.: We'll hear argument first this morning in Case 13-6827, Holt versus Hobbs. Mr. Laycock.
Douglas Laycock: Mr. Chief Justice, and may it please the Court: 40 other prison systems permit beards without a length limit, yet Arkansas prohibits even half an inch. And in their brief, they reject every means that courts have devised to evaluate their testimony. So what they really seek is absolute deference to anything they say just because they say it. And that would be to repeal this statute de facto. There may be deference to prison officials, but there must be concrete limits to that deference.
Ruth Bader Ginsburg: If this prisoner wanted to have a full beard, would RLUIPA require that the prison administration allow him to do that?
Douglas Laycock: Well, some courts have said yes. There's very little in this record about full beards and whether they're safe or whether they're dangerous, but the 40 States that permit them suggest that the State would have a difficult burden of proof. But that question is not presented here.
Antonin Scalia: Mr. Laycock, the problem I have with -- with your client's claim of -- of religious requirement is the religious requirement is to grow a full beard, isn't it? Now, let's assume in the religion that requires polygamy. I mean, could -- could I say to the prison, well, you know, okay, I won't have three wives; just let me have two wives. I mean, you're still violating your religion, it seems to me, if he allows his beard to be clipped to one -- one inch, isn't he?
Douglas Laycock: Well, the religious teaching is a full beard. He testified that religiously half an inch is better than nothing, and he explained that in terms of Hadith that he referenced. He's in a very difficult situation. I don't think he should be penalized for being reasonable here. He offered an extremely conservative compromise to the prison--
Antonin Scalia: Well, religious beliefs aren't reasonable. I mean, religious beliefs are categorical. You know, it's God tells you. It's not a matter of being reasonable. God be reasonable? He's supposed to have a full beard.
Douglas Laycock: --He's -- he's supposed to have a full beard, but a partial beard is better than none. And that's not just in secular terms. That's also in religious terms, which he explained on the record.
Antonin Scalia: Okay. You think on the record that's what his religion would require if he can't have a full beard.
Douglas Laycock: That's correct, Your Honor.
John G. Roberts, Jr.: But I -- I mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win. And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches. It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.
Douglas Laycock: Well, most of the cases seek a full beard or full hair. And sooner or later, you will have to decide one of those cases. But this case, he made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.
John G. Roberts, Jr.: Well, but we have to decide this case pursuant to a generally applicable legal principle, and that legal principle is one, it seems to me, that demands some sort of a limit. And if you're unwilling to articulate a limit to the principle itself, it becomes a little bit difficult to apply it, say, well, we don't know what the limit is because you're only asking a half inch. We'll apply a -- a theoretical legal structure and -- and say you fall within it.
Douglas Laycock: Well, I think, you know, the limit has to be determined on a record in a case that is seeking a -- a longer beard. I think, you know, what -- the larger issue than just half an inch that this case presents is how do you administer -- the legislative history suggests deference to prison officials in the context of a compelling interest standard.
Antonin Scalia: Yes. So maybe we should -- maybe this was improvidently granted. I don't want to do these cases half inch by half inch. Let's -- let's take a case that involves a full beard. I mean, the next -- the next case will be one inch, then one and a half inches, two inches.
Douglas Laycock: They're not going to come in that order. The next case is going to be -- most likely, the next case is going to be a full beard because that's the great bulk of the cases. This case has a limited question presented and has a serious question of statutory interpretation. The courts below essentially applied the pre-removed but constitutional standard that you have essentially unlimited deference to the prison officials.
Anthony M. Kennedy: And then what has this Court said about the standard under RLUIPA with reference to prisons? That the -- that the prison has to show that its least -- least restrictive alternative in order to meet the requirements of strict scrutiny, and that's the prison's burden? Is that proposition established?
Douglas Laycock: Well, your only prison RLUIPA case is Cutter and that was a constitutional challenge.
Anthony M. Kennedy: Yes. All right. Do you -- do you think RLUIPA displaces Turner as the right standard?
Douglas Laycock: It was clearly intended to replace Turner. It textually replaces Turner.
Anthony M. Kennedy: And what is the test insofar as you're concerned?
Douglas Laycock: The test is compelling interests and least restrictive means and deference must be administered in the context of that standard, not instead of that standard. So if it's a close case on compelling interest, they may well get deference. If they give a reasoned and well-considered and informed explanation, they deserve more deference. More deference would be due. Cutter says some -- Cutter says they get due deference, but Cutter had no occasion to decide how much deference is due or -- or how that -- how that should be administered. The textual standard is clearly compelling interest and least restrictive means.
Sonia Sotomayor: Could you put your answer in practical terms. The Chief Justice asks you what's the legal principle that you want us to apply, and you announce it as give them the right deference. It's a little bit circular, the answer, in my mind. Looking at what the circuits have been doing, which one do you think articulates the best approach to RLUIPA and what courts should be doing?
Douglas Laycock: Well, maybe Judge Gorsuch's opinion in the -- in the Tenth Circuit. But I'm not sure any circuit has given a fully elaborated account of deference in the context of a compelling interest test. We think the more reasoned and informed their explanation, the more deference is due. So do they give concrete examples of specific harms? Do they treat similar risks the same way? Do they -- do they take account of solutions that have been found to work in other jurisdictions? Do they take account of the religious needs of prisoners at any point, or do they just reflexively say no?
Ruth Bader Ginsburg: And the standard is other similar risks. The same way, then, what about a 1/4-inch rule? Because that's what they allowed for people who have dermatological problems.
Douglas Laycock: They allow -- they allow a quarter inch for medical beards. They don't allow even a quarter inch for religious beards. But the quarter inch, I think, for medical beards, I think, fatally undermines their claim that they can't administer a length limit. And it -- and it somewhat undermines all their other claims about -- about a 1/2-inch beard, that this is in some ways like the case Justice Alito wrote in Newark in the Third Circuit. The medical exception undermines all the alleged reasons for not allowing a religious exception.
Ruth Bader Ginsburg: There are -- there are some religious practices -- I think that the Sikh practice of not cutting hair ranks as a religious practice. So not cutting hair and wearing a turban, consistent with what you say is the standard, could a prison say, we won't allow that because it is too easy to hide contraband?
Douglas Laycock: Yeah, that may be. I don't know what the evidence would show about Sikh hair wrapped in a -- in a turban. But that's clearly a much more serious issue than -- than what's presented in this case. You know, Sikh hair wrapped in a turban may well be different, but we don't have any evidence about in this case. We don't really have a way to know on the record in this case.
Elena Kagan: Mr. Laycock, you're relying on this case really on -- on felt intuitions that this couldn't possibly advance the State's interest. But for the most part in these cases, there will be some incremental gain with respect to the interests that this State has. So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?
Douglas Laycock: I think they have to show material -- this is a phrase in the government's brief, and I think it's helpful -- a material effect on their security situation. Any teeny tiny risk, however small, is another way of de facto repealing the statute, because you can always imagine some teeny tiny risk. And even internally, under the rational basis standard, the Court said the test isn't zero risk. Even in Turner, the Court said you have to incur--
Elena Kagan: Teeny tiny isn't enough. But how about, you know, measurable, although small? Or, you know, at what point does it become something that we say, yes, we have to take that into account?
Douglas Laycock: --Well, I think material or significant may be the best we can do. They say, for example, that in 2011, they confiscated a thousand cellphones. I don't think a 1/2-inch beard would change that number. But if it went to 1,001 or 1,010, I don't think that's material. But if it goes to 1,100, that's a significant increment. But they have to show some material effect on their security situation. And here, where they allowed beards for many years, where 43 States allowed beards, there should be plenty of examples if it were a problem. And this is not something that's so dangerous no one has tried it. So there should be plenty of examples. And in fact, they have no examples of anything hidden in beards, and certainly not in a very short beard, such as half an inch. This -- this idea of deference comes from legislative history, and that very same legislative history said post hoc rationalizations, exaggerated fears, mere speculation are not enough. And it's for the judiciary to distinguish the two. And I think what we have in this case is exaggerated fears and post hoc rationalization.
John G. Roberts, Jr.: Well, the -- the problem with deference, I think, is that if you accept the fact that there is a point at which it does become a problem, the full beard, Sikh with the -- the turban, then you -- then there's the question of how you draw the line. And drawing the line, it strikes me, may be the point at which you will consider deference to the prison administrators. You take deference entirely out of the equation by saying, look, we're only asking for half an inch.
Douglas Laycock: Well, we haven't taken deference out of the equation, but when we only ask for half an inch and when they offer so little evidence and no -- no examples and no consideration of solutions elsewhere, they haven't done anything to deserve deference. They haven't shown expertise. And -- and even with deference, you know -- even with some degree of deference, it doesn't make out a compelling interest on these facts and that's the question presented.
Sonia Sotomayor: Could you -- you know, we seem to be arguing rules. They say no beards. You say half-inch is okay. And then the question begs itself, if -- how about three-quarters of an inch, how about an inch, and what about full beard? What are we measuring this against? Are you seeking to establish a rule that every prisoner has to be permitted to grow a 1/2-inch beard and no more, or are you asking for a rule that applies just to your client and then articulate why for your client?
Douglas Laycock: No. We think, you know, reversal here would establish a right to a 1/2-inch beard for all prisoners on this record and, you know, unless some other State made a very different showing, all prisoners more generally.
Sonia Sotomayor: So what happens -- I know the magistrate judge or the judge below here said that it was preposterous to think that this prisoner could hide anything in his 1/2-inch beard. Assuming that his 1/2-inch beard was not thickly grown, but some are, and some you can't see the skin. Should that 1/2-inch issue be applied to that prisoner? Wouldn't it be a different set of facts in that case to consider?
Douglas Laycock: Well, the State might be able to show that's a different set of facts, you know. But -- but the question is not just, is it conceivably imaginable that some prisoner somewhere could hide something in a 1/2-inch beard, but could he hide something there that he couldn't much more easily and more securely hide in the hair on top of his head, in his shoe, in the lining of his clothes, you know--
Antonin Scalia: You're arguing for all 1/2-inch beards, right? I mean, I--
Douglas Laycock: --Yes.
Antonin Scalia: --We've got to assume all 1/2-inch beards are -- are okay if -- if God tells you to grow them, right?
Douglas Laycock: Well, you know, I think that's right. And again, subject to somebody producing evidence that we're wrong about some 1/2-inch beards, but I think yes.
Antonin Scalia: Well, really subject -- I mean, whose -- whose burden is that? I mean--
Douglas Laycock: It is the State's burden that is explicit in the statute. This is an affirmative defense we're talking about of compelling interest in least restrictive means. You know, the -- the only limit to -- they impose on the hair on the top of your head is it can't extend below the middle of the neck. So you can have long hair, curly hair, Afros on top of your head without a length limit. The difference between hair on top of your head and hair in the front of your head is -- is not even rational. They could hide more and the -- and the prison warden testified to this. Yeah, you could hide things in the hair on top of your head, but that's not against the rules. So they have singled out the beard that is preserved for -- that is more to religious reasons and -- and not treated other things that are really indistinguishable. If there are no further questions, I'll reserve the remaining time.
John G. Roberts, Jr.: Thank you, Professor. Mr. Yang?
Anthony A. Yang: Mr. Chief Justice, and may it please the Court: This case involves the religious accommodation of 1/2-inch long beard that BOP in over 40 states would allow a prisoner to wear. The State failed its burden of proving that denying a 1/2-inch religious beard would be the least restrictive means to further a compelling interest.
Antonin Scalia: Is it your position that if, what, 90 percent of other -- of other institutions similar to the one at issue in the case permit the practice that is challenged, it cannot be a compelling interest? Is that your position?
Anthony A. Yang: No. In fact, I think our position is that security interests in prisons are compelling, but the burden that RLUIPA imposes upon the State is a burden to show that the means selected, that is, the denial of a 1/2-inch beard is the least restrictive means to further that interest. And in this case, that is a showing that has to be made in court. It is something that Congress specifically recognized would be showing--
Antonin Scalia: I understand that. But I'm asking what is the relevance of the fact that other instances--
Anthony A. Yang: --Well, the relevance is that--
Antonin Scalia: --Are we going to say whenever an institution comes up here that has a restriction which other institutions of the same type do not have, or at least a large majority of them, it's ipso facto bad?
Anthony A. Yang: --No. I don't think it's a dispositive factor. However, it significantly undermines the State showing that a similar restriction could not be had in this context. And the State, in the face of that example if raised in litigation, would have to provide a reasonable basis for explaining why there might be a distinction between what's going on in other States in BOP and what's going on in this State. And the showing in this case is exceptionally near. I mean--
Antonin Scalia: Well, why does it have to show a distinction? It can just say the other States are wrong. We -- we think this is dangerous. I don't care what other States think.
Anthony A. Yang: --I think a little more will be required under the compelling interest test. Now, this Court in Cutter recognized--
Elena Kagan: Well, suppose a State just simply says this: You know, actually, there's nothing special about our prison. We can't show you some special circumstance, but what we can show you is that prisons are in the business of making tradeoffs between security and other values, they do that every single day, and our State just thinks that the tradeoff should be more security oriented, so we insist on a greater level of security than our peer institutions do. And -- and are you saying that the statute prevents a State from doing that?
Anthony A. Yang: --No. I don't think that the statute imposes a least common denominator amongst State prison systems. However, I think there is some bounds to the State's judgment that needs to be -- there are some limits and the State needs to provide a reasoned explanation in order to get deference to its -- its predictive judgment in this context.
Samuel A. Alito, Jr.: Where are you -- how do you--
John G. Roberts, Jr.: Go ahead.
Samuel A. Alito, Jr.: --How do you reconcile deference with the strict scrutiny that the statute requires?
Anthony A. Yang: Well, this Court in Cutter, for instance, explained that the strict scrutiny -- when deciding what was required by strict scrutiny, context matters.
Samuel A. Alito, Jr.: Well, there are -- there are two questions there. One is, which you've -- is a good question. Where does this idea of deference come from in this context? But the question I was asking was: How do you think, assuming that there is a role for deference, how does it fit together with what the statute expressly requires?
Anthony A. Yang: I don't think there's any dissonance between the idea of strict scrutiny, which is not a degree of proof required, it is a question about whether you've identified a compelling interest and shown that what the -- the burden is the least restrictive means, that can be shown by preponderance of the evidence. And so when you're talking about deference in this context, you're talking about deference to the predictive judgments of officials based on their experience and expertise, based on the fact that they are, in fact, charged with protecting the public and administering these prisons. And so when they provide a reasoned explanation based on experience and expertise, they can -- don't have to point to a specific example of a 1/2-inch beard in the past resulting in something horrible, but--
Elena Kagan: But I do share Justice Alito's confusion on this point, because all the things that you're talking about are things that we would never allow in the typical strict scrutiny context. You know, all this kind of well, as long as they say something, they don't really have to prove it and it just has to sound kind of reasonable. And that's the very opposite of strict scrutiny generally.
Anthony A. Yang: --Well, in this context, remember, the statute doesn't say strict scrutiny. It shows -- says that the State has to identify a compelling interest and show that the burden that it is imposing is the least restrictive means.
Ruth Bader Ginsburg: Didn't this Court establish--
John G. Roberts, Jr.: It sounds like statute.
Anthony A. Yang: It's -- it's similar. But remember, this Court in -- in Grutter and in Cutter has recognized that the application of strict -- what you might broadly label strict scrutiny depends on context. And Congress, when they enacted both RFRA and RLUIPA, understood that these two concepts could be administered together.
Elena Kagan: Do you think it's the same standard in both of those statutes?
Anthony A. Yang: For the large part, yes. I want to caveat that because--
Elena Kagan: The language is completely the same.
Anthony A. Yang: --Yes. But in -- most of the language is completely the same. The standard is the same, but in RLUIPA, RLUIPA has this additional provision that requires that the terms of the statute be broadly construed to the maximum extent possible to protect religious exercise.
Elena Kagan: But I thought we actually used that in the recent RFRA case to suggest something about RFRA as well. Is that right?
Anthony A. Yang: That's because RFRA's definition of religious exercise incorporates the RLUIPA definition. But beyond that context, it's at least conceivable that the Court might have a broader interpretation of the protections in RLUIPA than in RFRA.
Ruth Bader Ginsburg: --Mr. Yang, before you sit down, your brief lists a whole series of cases on page 14 that were decided before RLUIPA. Safley and a bunch of others. Are all those practices which we approved up for grabs now under RLUIPA? There -- there were restrictions on receipt of publications was one.
Anthony A. Yang: I think the analysis is different now. It has -- it could be litigated. Any of these claims could be litigated. The State would then have the burden of coming forward to show that the restriction would, in fact, be a least restrictive means of--
Ruth Bader Ginsburg: So they would -- all those that we approved, correspondence limitations, all those would have to be looked at anew under the RLUIPA standard.
Anthony A. Yang: --I think that's right, because if you were to go back to pre-RLUIPA case law, no one would doubt that a State could, in fact, prohibit a 1/2-inch beard under the prior constitutional standards. But Congress has set a higher bar and it imposes upon States the obligation to come forward to explain and justify it. Now--
John G. Roberts, Jr.: Where -- where are you on the full beard?
Anthony A. Yang: --On the full beard, I think there might well be a difference. But again, RLUIPA depends on a showing in litigation by the State that the means selected is the least restrictive means. A State may well be able to show that a full beard would run real risks that are just not present in the 1/2-inch beard that we have here.
John G. Roberts, Jr.: Well, assuming that's the case, assuming they have some evidence of concealment or whatever in -- in a full beard, what do we do? Just litigate a dozen cases till we settle on one and three quarters inches, or what?
Anthony A. Yang: Well, I think--
John G. Roberts, Jr.: What I'm doing, it's the same question I asked your friend--
Anthony A. Yang: --Yes. There's going to be a--
John G. Roberts, Jr.: --which is what's the legal principle? And if there is no direct legal principle, then isn't it a situation in which you would employ deference to the administrative judgment?
Anthony A. Yang: --I think that's exactly right, that there is going to be a bound, a range of reasonableness that courts will find appropriate to defer to predictive judgments by expert officials in various contexts. Now--
Elena Kagan: Can I ask a similar question? But, you know, lots of religions, including lots of religions of one, have dietary codes of various kinds. So suppose a lot of prisoners say, here's my dietary code personal to me, and all of that costs money, and let's just stipulate that as prisoner -- prisons have to spend money on that, they have less money to spend on things relating to internal security. How is somebody supposed to think about those kinds of questions, where it's just every time somebody makes a religious claim, the costs to the institution goes up and the ability of the institution to deal with security issues goes down?
Anthony A. Yang: --Well, maybe not necessarily always the second. Certainly, you can have costs going up. It may not necessarily affect the -- the security in an institution.
Elena Kagan: But I'm suggesting the costs are going -- you know, they come out of someplace.
Anthony A. Yang: At some limit, that -- that's true. I mean, we all operate under a real world with limited costs. And as the Court recognized in Cutter, the deference--
Elena Kagan: So how do we do that?
Anthony A. Yang: --Excuse me?
Elena Kagan: So how do we do that?
Anthony A. Yang: Well, I think, again, it's going to depend. If, for instance -- the factors that would be relevant is the context. Does the increased cost prejudice other types of interests in operating the prison? That would have to be articulated by a--
Antonin Scalia: Well, wait a minute. So vote more money. All you have to do is raise taxes. We're talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you're -- you're asking, well, let's balance things; let's be reasonable. Compelling State interest is not a reasonableness test at all.
Anthony A. Yang: --It's not me, Your Honor. I think it's what the Court actually recognized in Cutter. The Court, and I'll quote, said that "The Act needs to be applied in an appropriately balanced way, with particular sensitivity to security concerns, and that accommodation must be measured so that it does not override other significant interests. "
John G. Roberts, Jr.: Thank you, counsel.
Anthony A. Yang: Thank you, Your Honor.
John G. Roberts, Jr.: Mr. Curran.
David A. Curran: Mr. Chief Justice, and may it please the Court: Arkansas' security objectives are undermined by the Petitioner's 1/2-inch beard because he could use it to alter his appearance, thwart identification, and conceal contraband in our maximum security prisons' unique environment.
Ruth Bader Ginsburg: On altered appearance, I thought it was conceded that at intake, the prison could take a photograph clean -- clean shaven?
David A. Curran: Your Honor, that -- that is not on the record. I concede that that was not sufficiently addressed to withstand the summary judgment posture in this case. The -- the record testimony was just -- I agree with Professor Laycock that it wasn't satisfactory. But let me get to what I mean--
Antonin Scalia: I don't understand what you just said.
David A. Curran: --Well, there -- there is two points in altered appearance. One is identification within the prison itself, and I want to get that in a one second. One is a post-escape scenario, where you're looking for the inmate.
Antonin Scalia: Right, right.
David A. Curran: Our testimony on that was -- was not engaging in the question. There's no record testimony regarding that. So let me get to identification within--
Antonin Scalia: Why do you need record testimony on -- on a question such as that? If -- if you're claiming if he escapes, he can shave off his 1/2-inch beard and thereby alter his appearance, and the -- the response is, well, just take a photograph of him before he grows his 1/2-inch beard, why do you need that evidence on that point? It seems to me it's -- it's obvious. What prevents you from taking a photograph before he grows the 1/2-inch beard, which can then be distributed to police departments if he escapes?
David A. Curran: --You know, I agree, Your Honor. I mean, there -- there are scenarios--
Antonin Scalia: This is not an evidentiary matter at all.
David A. Curran: --The -- the point of identification within the prison, though, is an evidentiary matter on this record, and let me get to that, because it's very important to understand this in our prison's unique environment. Morton Lay testified that shaving a beard can enable an inmate to get into an area where he's not supposed to be in -- that's at Joint Appendix page 104 -- and that a beard can enable an inmate to deviate from an inmate's appearance on an ID badge. That's at Joint Appendix 100. And, of course, a beard is one of the quickest and easiest ways to change one's appearance. That's on page 97 of the Joint Appendix. And, of course, the grooming policy itself speaks in terms of maintaining the standard appearance throughout the period of incarceration, minimizing opportunities for disguise. And let me explain a minute why this matters in our prison's unique environment and why we're different, because it's a very important point here. The testimony on the record on page 101 of the Joint Appendix was that we have a very different situation with barracks housing and inmates going outside the fence in large groups of 30 to 60 per barracks unit every day. It's a very high-traffic, maximum security facility where they come out of a large barracks holding 30 or 60 inmates, go out, and then come back. And there's a lot of traffic there, and in that environment rapid and accurate identification of the inmate by his face, his -- his ID badge and the like, but also general familiarity with the inmate and who the guards are dealing with is very important in that process. And if a mistake is made, an inmate could get into the barracks where he is not supposed to be in and an assault could occur. And these are separated by enemies and the like. And that is very serious in our environment. It was made on the record, and it differentiates Arkansas from every State mentioned by the Petitioner in the United States.
John G. Roberts, Jr.: But you have no example of that ever happening.
David A. Curran: I have no example of a -- well, let me say this. In our brief, on footnote 13 and on page 26 of the 18 States amicus briefs, there are examples. There are no record -- there are no record examples here.
John G. Roberts, Jr.: Examples -- examples of what?
David A. Curran: Of interprison identification problems, of -- of -- with an escape type; you know, in the prison, a beard being used to thwart identification. And--
Samuel A. Alito, Jr.: Do you have that same concern with the prisoners who have a very short beard for medical reasons?
David A. Curran: --No. And let me explain why. There is confusion here as to what this so-called medical beard is. There is no exception in practice of a quantitative matter for medical beards. It is a means-of-shaving exception. In fact, our policy changed to reflect our actual practice about a year ago. What the -- what the practice is is that when a doctor's order says the person has a dermatological condition or some other scarring or skin condition that needs a shave, they use barber-style clippers, electric clippers without a guard, and they're used directly on the skin. And the result is a very clean-shaven look, not quite as close as using a tamper-resistant safety razor that other inmates use. But it is a very clean-shaven face. The clippers are kept in the barber facility and a couple of days will go by--
Samuel A. Alito, Jr.: How long is -- how long are the whiskers when that is done?
David A. Curran: --So -- so they may take barber call maybe twice a week. So they'll have a clean-shaven face and then go a couple days, three days, and then go back to the barber facility.
Samuel A. Alito, Jr.: You're saying that they're completely clean-shaven?
David A. Curran: I'm saying that they are clean -- I mean, what is clean-shaven? Some would say a razor shave looks slightly--
Samuel A. Alito, Jr.: Clean-shaven is somebody like you, all right?
David A. Curran: --Right. I would say that's -- I would say that's fair. I've got a -- I've got fairly, fairly dense hair. But that's -- but that's the appearance immediately after--
Samuel A. Alito, Jr.: And that's how they -- and that would satisfy the medical problem?
David A. Curran: --That's correct.
Samuel A. Alito, Jr.: To be shaved that closely?
David A. Curran: That's right. The doctor's prescriptions invariably are get a clipper shave. And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders. And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter. Under the medical--
Ruth Bader Ginsburg: So are you telling us that the quarter inch is wrong? I thought that that was in the record as a given, that a quarter inch is allowed for medical reasons.
David A. Curran: --The policy states that, Your Honor, and it's confusing. In practice there is no quantitative quarter inch rule for beards. There is a clean-shaven rule that's allowed some length to go to the next barber call a few days later. You can still see the skin the entire time in that scenario. And if the Petitioner wanted to avail himself of that accommodation, we would let him do that.
Ruth Bader Ginsburg: What about the argument that it's -- never mind the least restrictive means, you have no comparable rule about hair on one's head, where it seems more could be hidden than in the beard, where hide something in a beard and it might drop out.
David A. Curran: Yes, Justice Ginsberg. The material difference there is our professional judgment is the disguise-related component of a beard and shaving that beard is more profound than one on the head. So your point speaks to one of contraband and I agree as a matter of common sense and logic there is a length and gravity component to a head that's different than a beard, for sure. But the risk is still there none the same. I mean, there is an interest in regulating the contraband element, but the head hair doesn't propose the same disguise-related problem as a beard.
Samuel A. Alito, Jr.: Why is that? Why is that so? Are you saying that somebody with or without a half inch beard -- that's a bigger difference than somebody who has longish hair versus the same person with a shaved head?
David A. Curran: In our professional judgment, it is, yes, that's correct. Because you're looking at the essential features of a person's face, their jawline, their chin and the like, and that's the means by which we identify each other. And so that is a significant difference in our view. And really the head-hair policy complements the facial identification policy because it's not allowed to get to a length that could obscure the hair and that's the rationale for that.
Elena Kagan: Mr. Laycock characterizes your position as being essentially all deference all the time. So I'll give you an opportunity to say when would deference be inappropriate?
David A. Curran: Deference would be inappropriate when the explanation offered on the witness stand in the record of compelling interest and the least restrictive means is -- neither comports with logic or common sense. I mean, I think -- I think it sounds like we are all in agreement on that. And Justice Sotomayor asked what lower court decision would maybe lend the most guidance. I think a rather straightforward but apt analysis is in the Couch case in the Fourth Circuit, where Judge Draxler, joined by Justice O'Connor and Judge Shedd, sort of went through -- the initial obligation is to explain the reason and common sense why that approach furthers a compelling interest in the least restrictive means. And once that happens, deference attaches, but that doesn't mean either that you win the case. It just means that you have substantial weight. There's sort of a thumb on the scale, so to speak, and more evidence can come into play and you could still lose.
Sonia Sotomayor: Can I go back to -- just so I'm clear in my head -- to two compelling, two compelling interests, one in identification, one in contraband.
David A. Curran: That's right, Justice Sotomayor.
Sonia Sotomayor: Is there a third or a fourth or are those the only two?
David A. Curran: Those are the only two we are talking about here.
Sonia Sotomayor: And in this case, the magistrate judge has said it's preposterous to think that you could hide something. You don't have a security -- contraband--
David A. Curran: Let me take on the "preposterous", if I might. If you look at the written findings, there is no such finding. In fact, the finding was to the contrary. I believe it's on page 167 of the Joint Appendix. The magistrate judge says: "The testimony about small bits of dangerous contraband is indeed the most compelling in the entire case. " Then if you go back and look at the verbal musings from the bench, the judge sort of reflects a layman's view of, well, the idea of contraband in a half inch beard seems almost preposterous. And then he jumps down in the next paragraph, the immediate paragraph after that, and said: Well, then I heard the testimony of experienced, highly experienced correction professionals, and they made me change my mind. He didn't say "change my mind". He used the word "impressed". The word 155 of the Joint Appendix. So I think what you see here is a judge doing what judges ought to do, which is come to court with their layman's understanding of how things work and then hearing this testimony and thinking, oh--
Sonia Sotomayor: --It is somewhat hard for me, given what you just said, to figure this out, because there may be in my mind some situations with some prisoners where a half inch beard won't hide anything, and with others that it will. Doesn't this law require you to consider the individual before you and to accommodate them in the least restrictive way?
David A. Curran: --I think--
Sonia Sotomayor: So let's assume that what the magistrate judge meant -- which is what I assumed; you have a different read -- that it's preposterous to think this prisoner could hide something in his beard, but not preposterous to think that others might not be able to do so.
David A. Curran: --The--
Sonia Sotomayor: Assume my hypothetical.
David A. Curran: --Right. The question -- you're posing a question, I think, Justice Sotomayor as to whether the warden, I guess, needs to do some sort of hair analysis--
Sonia Sotomayor: No. My question is one of whether you're obligated under this statute--
David A. Curran: --Right.
Sonia Sotomayor: --to look at the request of the individual and assume that the application of whatever rule you create can't have an exception as to that individual.
David A. Curran: On this testimony, Your Honor, you pointed out that the testimony was a half inch beard, you can't see the skin. And I think that's a functional difference. And we've got to think of how to administer a rule where to the person that that level of granularity is just not functional--
Sonia Sotomayor: Yes. But I don't know. Given the deference that was given here, the question is, was it applied too broadly? What I'm getting at is does the Court have to look at the individual request and figure out whether it can be accommodated in the least restrictive way?
David A. Curran: --Yes. I think it's fair to say that if the Court actually did say it was preposterous, in other words saying that defies common sense.
Sonia Sotomayor: In this case.
David A. Curran: In this case, yes. I think that's right. But I don't think that's an accurate finding of what the magistrate judge says, and I do think that's a problem and that rule is not administrable. It's far easier to say how about an eighth inch beard where in all scenarios you can't see the skin. I mean, you can imagine a warden running that kind of rule much better than what can we show as to each person's hair type. And if he asked for that kind of accommodation, we would grant it. But he has not offered that. He has offered a half an inch, and he has got a very complex lesser-of-the-evils type of principle.
Sonia Sotomayor: Now, on the change of looks, I'm still not sure. Could you describe it in more detail? I obviously missed it in the record. What is this barracks situation?
David A. Curran: Sure.
Sonia Sotomayor: They leave the compound. Where do they go when they leave the compound?
David A. Curran: So they're in a barracks situation, they've got 30 to 50 or so in a room, and there are four barracks on each side of a common roof. They go out and they get in a line in different shifts, so to speak, and they go out and they will go to chow and they will do their business and they will go out and work outside the prison fence in fields, and they will come back again. And it's a very high traffic environment that's--
Sonia Sotomayor: Are these unprotected fields?
David A. Curran: --There is guards there watching them. You're not just out working alone, but there is no prison fence there. I mean, it's up to the guard to keep up with them. So what you have is an environment which on this record on page 101 of the Joint Appendix was we are not like California. We are not like New York. They have cell block housing. And there is no instance in which the government or the Petitioner has said to challenge that as to maximum security facilities. That's a very big difference in the nature of how our institution runs. And we think if deference means anything, it means you don't have to copy the prison policies of other States who don't even have the similar security concerns that we do.
Ruth Bader Ginsburg: Did you establish that Arkansas is unlike all these other States, that the other States don't have barracks, they don't have people going out to work in the field? I thought that that was not so, that there are other prisons that operate similarly with housing and having the prisoners work on a farm.
David A. Curran: Two things in response to that, Justice Ginsburg. First is on this record there was only two States offered, California and New York, and the undisputed testimony on this record at page 101 is they are different. And that stands undisputed. Now, your question as to what about all the footnotes in the briefs to this Court. If you look behind all of the sources cited on those Internet sites, which that's what Petitioner mostly uses, and the government uses Internet sites and also some case law examples, each one of those is referring to a minimum security institution. They have not offered any institutions like ours. As far as I can tell, the only institutions that have something similar to ours have clean-shaven rules.
Ruth Bader Ginsburg: What about the Federal prison system? I thought the rule was throughout the prison system.
David A. Curran: Both the Government and the Petitioner cite a link to the regulation in their briefs and that is to minimum security status inmates.
Samuel A. Alito, Jr.: When a prisoner goes out in the field and then wants to come back to the barracks, are the prisoners wearing an ID; is that correct.
David A. Curran: That's correct.
Samuel A. Alito, Jr.: And does it say which barracks that prisoner is supposed to go to?
David A. Curran: Yes. And what happens is they trade ID's and they trade shirts. That happens even now.
Samuel A. Alito, Jr.: Does the ID have a picture on it?
David A. Curran: Yes. So -- so the person guarding the barracks, so to speak, the -- the flow to and from the barracks, relies on the ID and the face, but also general familiarity with who he's working with because that's sort of the -- I mean, that happens, that general familiarity--
Samuel A. Alito, Jr.: I'm just trying -- I'm having difficulty envisioning what you're -- the scenario that you're -- you're suggesting. So a prisoner who's supposed to be in barracks A has a 1/2-inch beard, has an ID that says barracks A, has that person's picture on it, goes out in the field, brings a razor with him?
David A. Curran: --Shaves--
Samuel A. Alito, Jr.: While he's out there, he shaves, then he wants to come back and go into barracks B. And how's he going to get into barracks B if he has an ID that says barracks A? Now you say he's going to trade with another prisoner? Then he will have a different picture on the ID, he's going to alter -- they're going to alter the IDs also while they're out there in the fields?
David A. Curran: --No. They -- they alter the -- they would alter the ID. I mean, they -- what happens is you've got very fast recognition and if they favor each other at all -- I mean, this happens now, Your Honor. I mean, so -- and the shave would take place probably in the barracks in the morning. But when they come back, the person monitoring the flow of 60 inmates through there gets beaten, and that happens. And the concern is the--
Samuel A. Alito, Jr.: So he has to find somebody who also looks like him from barracks B.
David A. Curran: --I would think that's how that scenario would work, but that's -- that happens. And that's -- I mean, prisoners are capable of doing a lot of mischief in prison, as you understand, I think, and -- and that kind of thing happens even now. I mean, we have assaults in the wrong barracks because correctional officers get beaten.
Ruth Bader Ginsburg: One of the hazards is razors. You just said that they can shave themselves in the barracks. Where do they get those razors and what happens to them?
David A. Curran: The -- we have tamper-resistant safety razors that are issued and they keep them in their personal possession, and then they -- when they're through with them, they can turn them back in on a one-to-one basis and get a new one if they exchange an old one.
Ruth Bader Ginsburg: Does your standard -- how, if at all, does your standard differ from what it would be if we had no RLUIPA? Is there any case -- now we have RLUIPA -- any case that would come up differently in Arkansas under RLUIPA than under the preexisting law?
David A. Curran: Well, I have to kind of get to the different elements. I think, O'Lone -- I mean, I'll talk first about maybe compelling interest. O'Lone credited prison officials' testimony that Muslim inmates are sort of getting a good rehabilitative event by not having to go back into the prison for Friday prayer because they might as well get used to an intolerant employer when they're out in the free world. That won't pass muster under compelling interest anymore. I mean, that just -- that was the old standard and the interest has to be truly compelling. On least-restrictive means, we think that interest grounded mostly in cost and hassle would have survived under the old regime which had a lot of, say, dietary cases and the like. Those probably will -- will fail a lot more often under RLUIPA than under the previous standard. So if an incremental, like the Yellowbear case, maybe an incremental increase in more staffing, ever so slight, might say, okay, that -- that is required to pass least restrictive means, but it wasn't under -- under the prior standard. So I think even under a deferential approach to RLUIPA, grounded in logic and common sense, you'll still have more vigor under the RLUIPA standard and cases will go the other way more often than under the prior standard.
Sonia Sotomayor: What about this whole issue about cost in the statute 2000-cc-3(c) that says, "This chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise. "
David A. Curran: Yes, Your Honor.
Sonia Sotomayor: So isn't -- it's anticipating--
David A. Curran: It is.
Sonia Sotomayor: --that there might be expense.
David A. Curran: That's exactly right. And so that's, you know, even within a least restrictive means analysis, there's a particular statutory command. Now, I think courts are going to have to manage that with reason, right? We can't have each inmate has his own facility with 10 guards around it. There's going to have to be some limit on cost, but I don't know that this case really implicates--
Sonia Sotomayor: Cost.
David A. Curran: --much of a cost issue, right.
Sonia Sotomayor: It -- it doesn't implicate the cost issue.
David A. Curran: Right.
Antonin Scalia: Mr. Curran, I'm not sure what your position is. I -- I thought earlier that you had pretty much abandoned the concealment justification for the policy. Do you -- do you still -- and were relying upon the identification justification.
David A. Curran: No. We think each justification stands on its own weight and we're--
Antonin Scalia: You think something can be concealed within a 1/2-inch beard.
David A. Curran: --I think that on this record that something as small as a SIM card, which the Court found compelling, could. I do think that the identification within the prison is more weighty here.
Samuel A. Alito, Jr.: As far as concealment is concerned, what -- what is the difference between a 1/2-inch beard and hair on the head that's much longer?
David A. Curran: Well, the testimony on the record was that your common sense view that longer hair is a better way to conceal contraband, I think, is a right one. The question really is: Is a beard an unlikely place? Well, the testimony here is not only can something fit in -- in a beard, but correctional officers very likely will be somewhat reluctant to do a full search of the beard like they would with, say, head hair.
Stephen G. Breyer: I take it there's no example, not a single example in any State, that allows beard policies where somebody did hide something in his beard.
David A. Curran: I think that's mostly right, Your Honor. I think there's an affidavit--
Stephen G. Breyer: So we have no example.
David A. Curran: --There is no example.
Stephen G. Breyer: So there is no such examples. Then do you think it might fit within the language of that report which says that the fear of people hiding things in their beards is, to use their language -- what was it -- grossly exaggerated? I mean 42 States. You know where I'm quoting from. I'm quoting from the report there. The exact words are what they are trying to get at is "exaggerated fears". It doesn't even say gross there. Would you say it's an exaggerated fear that people would hide something in their beards when, in a country of a very high prison population, not one example has ever been found of anybody hiding anything in his beard, as far as you can tell and as far as I can tell.
David A. Curran: As far as--
Stephen G. Breyer: Do I have that right?
David A. Curran: --As far as I can tell. But let me make a caveat there that I think is important, which is that just because we haven't found the example doesn't mean they aren't there. And the courts--
Stephen G. Breyer: No. There are a lot of things we've never found that might be there and I'll refrained from mentioning them. You see them on television, a lot of weird programs from time to time. [Laughter]
David A. Curran: --The problem, Your Honor -- Justice Breyer, with -- with this scenario is these kind of things are buried in incident reports among thousands of other things. And this Court, in the Florence case, Justice Kennedy asked the assistant to the Solicitor General, I thought the evidence here of contraband was rather skimpy. I was surprised to see that there weren't more of this. And the -- the attorney's response was these things are buried in incident reports. We can't find all of these examples. It's the nature of prisons, but take my newspaper articles. And -- and the Court actually, you know, took note of that as confirming its common sense intuition there in part 3 of its opinion. And I think that's just a problem of empiricism in the -- in the prison environment.
Samuel A. Alito, Jr.: Well, as far as searching a beard is concerned, why can't the prison just give the inmate a comb, you could develop whatever kind of comb you want, and say comb your beard, and if there's anything in there, if there's a SIM card in there or a revolver or anything else you think-- [Laughter] --can be hidden in a 1/2-inch beard, a tiny revolver, it'll fall out.
David A. Curran: You know, I suppose that's a possible alternative. I think the concern there is there's no perfect way of searching and -- and there's a lot of area there and you're going to have to really monitor to make sure they get all the spots. But--
Samuel A. Alito, Jr.: Do you really think that would be difficult, to say here's a comb, comb your beard?
David A. Curran: --I don't think it would be that difficult. I mean, I'm not in the prison environment. It really wasn't raised on this record. My clients might think that it is, but based on the information I have, I would agree that sounds like that would be something that could be done. And I do think it's important to distinguish sort of the rule that I would propose and that's in the Couch case, and that is -- what I think is very similar to what the government's offering here, is really an effort to marry strict scrutiny with deference in a way that doesn't invite empiricism. This Court's strict scrutiny jurisprudence hadn't always demanded examples, especially in the prison context. And I think that it's important that we do be allowed to have prophylactic rules in some settings. Justice Ginsburg asked, well, what about literature? We have a rule that says racially inflammatory literature of a religious nature that incites violence isn't allowed in the prison. And Justice Ginsburg in the footnote in the Cutter opinion seemed to think that of course that's a concern that prisons ought to be worried about. That's not susceptible to any kind of empirical proof, I don't think. And as I understand my friend's understanding of the rule, we are in a land of strict scrutiny really that's akin to content-based speech restriction analysis, where prophylaxis is to be condemned, we ought to really be using after-the-fact deterrent measures against maximum security inmates, that have already shown themselves not to sort of comport with that view of how to behave. And I think that's particularly dangerous in the prison setting, particularly in our prison's environment. Thank you, Your Honor.
John G. Roberts, Jr.: Thank you, counsel. Professor Laycock, you have five minutes left.
Douglas Laycock: On the issue of the written findings, THE magistrate said it's almost preposterous to believe he can hide anything in his beard, and then he immediately said: But there's a larger principle here, which is I have to defer to these people. And the subsequent written findings are based on that mistaken level of deference. He said three times: I'm constrained by the Fegans case. The Eighth Circuit precedent essentially applied the pre-RLUIPA constitutional rule, the magistrate was bound by that, and he gave that level of deference and he made written findings apart from what he had actually seen. On the issue of identification inside the prison, prisoners can shave their heads, shave their mustache, shave their medical beards. They don't claim that's a significant problem. The other 43 States do not appear to have found this to be a significant problem. It is -- it is a small and manageable problem. The -- on the question of the quarter inch medical beard, the policy is in the appendix to our brief at page 11A. This morning is the first time we've heard, well, it's really not a quarter-inch rule, it's really some other kind of rule. It's the first time we've heard we had a religious claim to have a medical beard. They never said that before. And, you know, they have not been able to justify their policy. They do have to prove it, Justice Kagan, and if the proof comes close they get deference. If they offer serious evidence they get deference. But here they offered very limited conclusory testimony, no examples, in a situation where there should be plenty of examples. You can't administer a prison and maintain any kind of safety and security if you don't have some sense of where prisoners hide things. They don't have to dig out the data from the files. If prisoners were routinely hiding things in beards these two witnesses would have known that, would have remembered it from the earlier rule in Arkansas and it would be easy to get examples to that from other States. There's simply no evidence in this record that it's a significant problem.
Ruth Bader Ginsburg: What about the argument that there's no comparison, that Arkansas is unique in the way it houses its prisoners, and that the rules that were cited elsewhere have to do with minimum security facilities?
Douglas Laycock: Arkansas may be somewhat different in how it -- in the number of maximum security prisoners working outside in the fields, but that does not make the half-inch beard any more attractive of a hiding place. If I'm out in -- if I'm out in the fields and I'm trying to smuggle something back in, I've still got lots of better places to smuggle it, including my shoes and my pockets and the lining of my clothes and, as Mr. Curran just agreed, the hair on top of my head. Again, there's just not a rational difference between where on the head the hair is located.
Elena Kagan: You made a statement just then, Mr. Laycock, about how to think about deference in the context of this statute and it's something that still troubles me, so I'm going to ask you to expand on that. To say -- it just seems like a contradiction in terms, so I want to understand how it's not a contradiction in terms.
Douglas Laycock: Well, it -- there's obviously some tension here, but the legislative history says due deference. The Cutter opinion quotes that legislative history and says due deference to expertise. It doesn't say how much deference is due. That's the question to be decided here. You know, we think the more informed and considered and well-explained their decision, the more deference it naturally deserves, the more deference is due. But they have to take some account of the prisoner's religious needs. They have to take some account of solutions that have been found to work in other States. If it's something so dangerous no one would ever try it like the Sickerpan, then of course you wouldn't expect examples. But here 43 States have tried it, Arkansas tried it for years throughout -- in a situation like that, where there ought to be plenty of examples if there's a problem, they ought to have to produce some of those examples. So the degree of deference it is due depends on the quality of their explanation, the quality of their consideration of the issue, and here there's no indication they ever considered the religious needs of the prisoners in the adoption of this rule, or if they ever took a second look at it after RLUIPA was adopted. And the testimony is very conclusory, devoid of examples, devoid of attention to other jurisdictions. The level of deference cannot be so great as to negate the statutory standard. You have to administer deference within that standard, not substitute deference for the standard, and the statutory standard is still compelling interest and least restrictive means. Thank you, Your Honors.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.