SCOTUS Gets One Right and Pagans Should Be Glad


It’s an interesting and odd bit of Americana that religious and racial rights are often first achieved in the military and the prison — two of America’s most regimented institutions. But once, the military, for example accepts that Pagan soldiers have a right to worship on the eight main Sabbats or to be buried with symbols of their faith, those rights tend to work their way into the larger society.

Although I am a member of the Supreme Court bar and an officer of that Court, I admit that I can be a bit cynical, sometimes, about certain pronouncements. However, today the Court got one right — hit it out of the ballpark, in fact. In Holt v. Hobbs, SCOTUS issued an opinion that, while directed at one of the Abrahamic, monotheistic religions, may well have positive implications for Pagans.

Holt v. Hobbs deals with a Moslem prisoner who believes that his religion requires him to wear a half-inch-long beard. Arkansas prison officials refused to allow him to do so, arguing that he could hide contraband in his beard and/or that he could grow a beard and then shave it in order to hide his identity and, then, apparently, escape from prison or evade detection within prison walls. However, those same officials allow quarter-inch beards to hide dermatological conditions and allow prisoners to grow the hair on their head longer than a half an inch.

Courts tend to give prison officials quite a bit of deference in such cases — it’s the prison administrators, after all, and not judges, who are charged with maintaining safety within the prisons. But Congress passed a law, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), that provides special rights for those who wish to exercise their religion in prison.

SCOTUS rejected Arkansas’ arguments against the prisoner’s half-inch beard. It was not impressed by Arkansas’ argument that some Moslems don’t believe that they must wear a half-inch beard:

[T]he protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 715–716 (1981).

What this should mean is that prison officials can’t deny a Heathen the right to pour blots simply because not all Heathens pour blots. They can’t deny a Wiccan the right to worship skyclad simply because some Wiccans wear robes. They can’t deny incense to a Kemetic Pagan simply because not all Kemetic Pagans use incense. I’m not saying that each of these battles won’t need to be fought. But the Court rejected the notion that unless every member of a religion agrees with a practice, no Pagan can demonstrate a need to engage in the practice. You may not need gluten free cakes and ale, but that’s not a reason to deny the practice to incarcerated Pagans.

If they imprison me, I can practice my religion as long as I can have an few hours of solitude in the morning and some time every day with nature, even a weed, or potted plant, or the rill running underneath the prison. It won’t matter that Lady Unique Inclination of the Saturn Return announces that all true Pagans require a wand, a cup, a pentacle, and a sword to practice Wicca. And when they imprison her, she shouldn’t be limited by my demands.

Instead, as SCOTUS explained, RIULPA demands:

a “‘more focused’” inquiry [that] “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’”

In the end, the government must show that ends it wants to achieve (stopping the flow of contraband and ensuring accurate identification of prisoners) cannot be achieved by narrower means than the ones it currently uses (disallowing half-inch beards). As SCOTUS explained:

Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).

Nice to see them get one right.

Picture found here.


2 responses to “SCOTUS Gets One Right and Pagans Should Be Glad

  1. From my modest experience (tagging along with Patrick McCollum to the meetings he arranges with prison officials at the American Academy of Religion), a “safety” is *always* first. Clear back in grad school, I was asked by a Boulder County (Colo.) jail supervisor if a Santeria necklace could be used as an offensive weapon.

  2. back in 1988 I spent 3 months in jail for protesting on the nuclear test site in nevada. being able to light a tiny candle in my cell brought a little humanity to my situation. after a few weeks of being the trustees who got to go to the local nursing home to wash dishes they trusted us enough to let us walk around the grounds outside between dishwashing duties. you’re right – even a weed, a candle, a look at the moon can keep your spirit intact.

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