1. Holt v. Hobbs, 135 S. Ct. 853 (2015)

2. Gregory Houston Holt a/k/a Abdul Maalik Muhammad

3. Mr. Muhammad… Became a follower of Islam prior to his felony conviction and incarceration Previously pled guilty to a federal crime after threating to kidnap President Bush’s daughters Convicted in Arkansas of breaking into his ex-girlfriend’s home and stabbing her in the neck and chest several times. She lived and testified. Declared Jihad and threatened to kill court personnel and police officers involved with his arrest and prosecution Held a shank against his cellmate’s neck following a religious dispute Sent a Jihadist threat to authorities in Iowa

4. Strict scrutiny for religious accommodations: How did we get here? Wisconsin v. Yoder (1972) Turner v. Safley (1987) O’Lone v. Shabazz (1987) Employment Division v. Smith (1990) RFRA (1993) City of Boerne v. Flores (1997) RLUIPA (2000) Cutter v. Wilkinson (2005) Gonzales v. O Centro (2006) Burwell v. Hobby Lobby (2014) Holt v. Hobbs (2015)

5. Wisconsin v. Yoder (1972) “The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion.” -Chief Justice Burger

6. The deference cases: Turner v. Safley (1987) and O’Lone v. Shabazz (1987)

7. Employment Division v. Smith (1990) If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy....” -Justice Scalia

8. The Religious Freedom and Restoration Act (1993) Strict Scrutiny. Repudiated Smith, endorsed Yoder, and codified strict scrutiny as the test for evaluating religious accommodations. The constitutional test and the statutory test now diverge, with the statute providing greater protection. Religious exercise: no “centrality” requirement Government’s burden to show Compelling Interest & Least Restrictive Means Broad Support. Nearly unanimous support in Congress. – Some concerns about RFRA’s application to prisons. – Legislative history: Won’t be a problem because courts will still give deference to prison officials, even if strict scrutiny applies Federal law: Applies to all laws passed by Congress prior to RFRA’s enactment and all future laws that are not explicitly exempted. “Super-statute” State and local law: Purported to apply to state and local governments under Section 5 of the Fourteenth Amendment. That provision states as follows: “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

9. City of Boerne v. Flores (1997)

10. RLUIPA (2000) Return to strict scrutiny (again) Passed unanimously in both chambers Applicable to states as Spending and Commerce Clause legislation, not 14 th Amendment enforcement legislation Limited areas: land use and prisons. Legislative record of abuses in these areas. Conclusion: Requires courts to apply strict scrutiny to prisoners’ requests for religious accommodations – at least in prison systems that accept federal funds (as all of them do). The legislative history explicitly repudiated Smith and O’Lone.

11. Cutter v. Wilkinson (2005): Courts must apply RLUIPA by giving deference to prison officials. What is deferential strict scrutiny?

12. Gonzalez v. O Centro (2006) “RFRA, however, plainly contemplates that courts would recognize exceptions—that is how the law works.” “The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” -Chief Justice Roberts

13. Recap Wisconsin v. Yoder (1972) Turner v. Safley (1987) O’Lone v. Shabazz (1987) Employment Division v. Smith (1990) RFRA (1993) City of Boerne v. Flores (1997) RLUIPA (2000) Cutter v. Wilkinson (2005) Gonzales v. O Centro (2006) Burwell v. Hobby Lobby (2014) Holt v. Hobbs (2015)

14. ADC’s challenged grooming policy “No inmate will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip. Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.”

15. Primary Justifications Contraband: Inmates might conceal contraband in a beard – even a very short beard. Changed appearances: Inmates might escape from prison, shave, and confound the search team.

16. Critiques of The Grooming Policy Contraband unlikely: Hiding something in a beard – and especially a short beard – is unlikely given the power of gravity and the availability of other (better) hiding places such as pockets, socks, shoes, head hair (which can be longer than half an inch), and bodily orifices. Besides, beards can be searched like everything else in a prison. Problem of changed appearance easily solved: Some prisons take a clean-shaven photo upon intake (and reserve the right to take periodic, updated clean-shaven photos). That way, photos covering all facial-hair possibilities are on file, which is even better than never having a photo of an inmate with a beard at any point. Both arguments - logic: Allowing cranial hair, mustaches, and medical beards but not religious beards is illogical and reflects an impermissible decision to value secular reasons for having hair above the neck more than religious reasons. Both arguments – no examples: There is an absence empirical evidence. Over 40 other states and the federal Bureau of Prisons would allow a beard of some sort. And Arkansas allowed beards for some 20 years. No concrete examples of harm from beards were ever given.

17. A perfect storm “Almost preposterous.” The Magistrate Judge stated on the record that it was “almost preposterous” to think that Holt could hide something in his trim beard, but he felt that deference was owed to the prison officials anyway. Dual Photos. The Magistrate Judge did not address the “dual photograph” option with regard to ADC’s escape concern. And the witnesses did not address the issue when asked. Substantial Burden. The Magistrate Judge found there was not a substantial burden on Holt’s religious exercise because the inmate had access to a prayer rug and could practice his religion in other ways. (Pet. Br.: “Presumably this would work in reverse; if they him grow a beard, maybe they could feed him pork every day.”). Procedural irregularities. Upon the Magistrate Judge’s recommendation, the district court entered a Rule 12(b)(6) dismissal and a strike against the inmate. But the trial court’s decision was based on testimony at a preliminary-injunction hearing -- not the pleadings. The Standard. The Eighth Circuit Court of Appeals affirmed in a very short per curium opinion that used deference verbiage having its origins in pre-RLUIPA case law. The court suggested that it was the inmate’s burden to prove that the prison’s fears were “exaggerated.” That sounds like Turner and O’Lone. More Procedural Irregularities. The Eighth Circuit implicitly converted the Rule 12(b)(6) order to a summary judgment order, even though a motion for summary judgment had never been filed and no discovery had ever occurred. “Bottom side of a lopsided circuit split.” Other Circuits, except the 8 th and 11 th Circuits, had been demanding a higher level of proof and rejecting the idea of unfettered deference—especially when other jurisdictions would allow the accommodation.

18. Original pro se cert. petition

19. SCOTUS Injunction, Brief In Opposition to Cert. Petition Required

20. Supplemental Petition

21. Merits Briefing

22. Ethics Quiz “We agree that it is only fair for Petitioner to be allowed to set the record straight. The testimony of Director Hobbs in Jones regarding the Steven Oldham incident was erroneous in stating that the razor was concealed in a beard. The undersigned counsel were not aware that the testimony was incorrect and sincerely regret repeating it in our brief.... We respectfully request that this letter be distributed to chambers.” CC: Douglas Laycock, Michael Gans, Judge Leon Holmes, Magistrate Judge Jerome Kearney, Inmate Larry Wayne Jones

23. What will the Solicitor General do?

24. Amicus Briefing

25. Argument Preparation: Moot Courts AG’s Office “among friends” (Little Rock, AR) Kellogg, Huber (Washington, DC) – a month out NAAG (Washington, DC) – a week out Georgetown Law Center (Washington, DC) – 3 days out

26. Rethinking The Strategy: Changed Appearances Warden Lay: “I do know that many, many of those institutions are very different from Cummins and from the mission, and I’ll give you one good example, is the majority of those institutions that you’re referring to are cell block housing units where everything is one or two man cells practically. The Cummins Unit has a lot of open bay barracks that house up to 35 to 45 individual inmates, it’s as high as 50 in some instances. So, yeah, that’s just one of many scenarios that are a lot different from our mission and the way we’re designed as opposed to maybe somewhere you’re talking about in California or – or New York. I’m not aware of very many states out there, for example, that operate an agricultural program like we do in Arkansas. The Cummins Unit is attached to a 17,000 acre farm. There are a lot of people come and go in and out of the confines of that fence …” J.A. 101 - 102

27. Oral Argument

28. Tough Questions for Curran

29. When in doubt… Pivot

30. Tough Questions for Laycock

31. The Aftermath

32. 0-9

33. ADC’s New Grooming Policy Inmates may apply for an accommodation for religious reasons. A committee that includes a chaplain and the agency’s general counsel reviews the request. No quantitative beard length limit Applies to head hair, too

34. Thank you