by Max Brantley
While the Department has a compelling interest in regulating contraband, its argument that this interest is compromised by allowing an inmate to grow a ½-inch beard is unavailing, especially given the difficulty of hiding contraband in such a short beard and the lack of a corresponding policy regulating the length of hair on the head.
* [Even if there is an interest in prisoner identification,] As petitioner argues, requiring inmates to be photographed both with and without beards and then periodically thereafter is a less restrictive means of solving the Department’s identification concerns. The Department fails to show why its prison system is so different from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institutions. It also fails to show why the security risk presented by a prisoner shaving a ½-inch beard is so different from the risk of a prisoner shaving a mustache, head hair, or ¼-inch beard.
* ... the Department also fails to adequately explain the substantial underinclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than ½ inch of hair on the head. Its failure to pursue its proffered objectives with regard to such “analogous nonreligious conduct” suggests that its interests “could be achieved by narrower ordinances that burdened religion to a far lesser degree. ... Nor does the Department explain why the vast majority of States and the Federal Government can permit inmates to grow ½-inch beards, either for any reason or for religious reasons, but it cannot. Such evidence requires a prison, at a minimum, to offer persuasive reasons why it believes it must take a different course
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that
understanding, I join the Court’s opinion.