The courts usually defer case-by-case to a warden’s judgment about running a safe and orderly institution, and Arkansas contends that beards are a security risk. Prisoners could hide contraband such as needles, drugs, razor blades or cell phone SIM cards in facial hair or better conceal such items in the cheek.
Then again, Mr. Verrilli may be right that alternatives are available and “defendants must explain why they cannot adopt those less restrictive practices as well.” Federal penitentiaries and 41 states permit beards for religious reasons, and there is no evidence these systems are more dangerous than Arkansas’s. The terrorists at Guantánamo can wear beards too. Though every prison is unhappy in its own way, Holt could well prevail on the merits.
The double standard is that identical reasoning applies to the five members of the Green family in Hobby Lobby. Liberals claim the Greens surrendered RFRA protections when they incorporated as a for-profit business. But the statute is meaningless if it does not protect their rights to cooperate in a commercial enterprise that also tries to observe their evangelical ministry, including their moral belief that life begins at conception.
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