This Haircut Was Also a First Amendment Violation — Here's Why


If a man robs a store, then how many of his civil rights are robbed from him? A court recently ruled that he loses his right to religious freedom, but the court should reverse its position in light of congressional action. 

This was the question in a recent decision by the Eleventh Circuit Court of Appeals in the case Thomas Otter Adams & Ricky Knight, et al. v. Leslie Thompson & Alabama Department of Corrections. According to the Montgomery Advertiser’s Brian Lyman, this case, filed almost 20 years ago, involves Doug Dark Horns Bailey’s struggle to freely exercise his religion behind bars. Bailey, a Native American who reconnected with his faith while in prison, filed a claim against the Department of Corrections when their inmate grooming policies came into conflict with his Creek Indian belief requiring him to have long hair. Quoted in the Advertiser, Bailey states, “Long before they ever started using DNA, we believed our essence was in our hair. That’s why we don’t cut it.”  Regardless of his faith position, he was forced to get his hair cut.

Despite the court's ruling, the plaintiffs are seeking a rehearing. This case, initially filed in November 1993, has been difficult to resolve due to congressional actions that have altered the standards of free-exercise burdens. These actions, especially the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), sought to “provide stronger protection for religious freedom in… prison contexts.”  However, the more recent law merely shifts burdens of proof, thus still permitting legitimate state interests to stand up in a court of law. 

Essentially, the Eleventh Circuit Court has to determine which of the two competing interests was legally superior: the prison’s desire to cut Bailey's hair for “interests in security, safety, control, order, uniformity, discipline, health, hygiene, sanitation, cost-containment, and reducing health care costs,” or the religious plaintiff’s desire not to cut his hair as an expression of religious free exercise.

Supporting the plaintiff, the National Congress of American Indians, joined by the Southern Poverty Law Center, noted in a recent amicus brief that the “heightened legal standard enacted by Congress” has not been properly followed in this case. Other organizations like the ACLU argue simply that the incarcerated are still granted rights of religious liberty. Even the Department of Justice wrote on behalf of the United States in an amicus brief, “This court should reverse the district court’s judgment and find that the defendants failed to establish that their refusal to grant the requested religious accommodation was the least restrictive means of furthering their compelling interests.”

Also noteworthy is that even the recent court opinion that ruled in favor of the Alabama Department of Corrections went out of its way to advise the department, “In the future… these costs and risks might be worth absorbing, especially in view of the high value that long hair holds for many religious inmates.”

Considering the institutional and interest-group support for the plaintiffs, it would be very unlikely for the court to uphold the lower court's ruling. In many religious liberty cases, the argument devolves into the question, “At what point should one draw the line?” The Supreme Court has told us that Mormons cannot be bigamous, but it told us that theism is requirement enough for conscientious objector status. Regardless of what makes a religious claim legitimate or not, allowing an individual to fashion his hair according to his religious dictates seems generally harmless in terms of the state’s interest. 

It is certainly valid to say that an individual loses some of his or her rights when he or she enters prison because those rights were lost at conviction. However, individuals who are not in maximum-security prisons are still warranted certain religious protections, especially as expounded in Congress’ RLUIPA. The constitutional argument suggests a person is still afforded his or her First Amendment right to free exercise of religion, as it is reasonably and appropriately deemed fit, regardless of his or her status of incarceration. At the very least, the Alabama Department of Corrections should have to provide the more inconvenient burden of proof.

Just because they latch the locks, that doesn’t mean they should snatch Bailey’s.