Hair and beard length and hybrid rights

[Eric Treene]

Regarding the Newark beard case, the city filed for cert.   We submitted our brief in
opposition at the beginning of July, so we should hear from the Court early in the term.
(in addition to the not-generally-applicable grounds the Third Circuit relied on, we stated
that if cert were granted we would also argue hybrid rights.  The passage from the Sunnah
that our clients and their Imam relied on in their affidavits for their obligation to wear
a beard involved expression, saying Muslims should wear beards to distinguish themselves
from Pagans and People of the Book (Christians and Jews)).

Eric Treene

A.E. Brownstein wrote:

> A colleague involved in prison litigation will be challenging the
> application to Muslim inmates of a California Dept of Corrections grooming
> regulation that requires inmates to be clean shaven. The Muslims contend
> that they are required by their faith to have at least short beards -- even
> if they are only one half inch in length. The Dept. of Corrections provides
> a medical exemption from its shaving requirement.
>
> Two questions:
>
> 1. In addition to arguing a lack of neutrality (citing) Fraternal Order of
> Police Newark Lodge and Lukumi Babuli Aye, my colleague is considering a
> hybrids rights argument under Thomas (the Alaska landlord case). Having at
> least a short beard involves a colorable claim of free exercise and
> symbolic speech rights. The Muslim's beards must be visible so that they
> can communicate to others that they are attempting to comply with their
> religious obligations. Any thoughts or authority regarding this argument
> that might be helpful would be greatly appreciated.
>
> 2. Is there an argument that post Smith cases applying rigorous scrutiny to
> non-neutral laws or hybrid rights situations requires a new consideration
> of religious liberty claims in prisons -- on the theory that the older,
> deferential cases did not consider hybrid rights arguments or the
> regulations lack of neutrality in their analysis?
>
> 3. Would the new federal RFRA bill that recently passed the house apply to
> state prison regulations on the basis of the federal government's spending
> power?
>
>                                                                         Alan Brownstein
>                                                                         UC Davis



--
Eric W. Treene
The Becket Fund for Religious Liberty
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