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Religious Freedom and Inmate Grooming Standards

50 Pages Posted: 19 Dec 2011 Last revised: 16 Nov 2013

Dawinder S. Sidhu

University of Baltimore School of Law; Shook, Hardy & Bacon

Date Written: May 24, 2012


This Article explores the Eleventh Circuit's repeated rejection of challenges, under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), to "restrictive" inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states' policies, and recent legal developments, that the Eleventh Circuit's approach in upholding these policies is no longer sustainable.

Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states -- including the three states within the Eleventh Circuit -- that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the "specific plaintiffs" in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit's routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.

Accordingly, I propose the following: assuming that a state's restrictive grooming policy requiring the cutting or shaving of hair substantially burdens a sincere religious practice of an inmate, and that the state’s penological interests undergirding the policies (such as security and order) are compelling, a court must probe the state as to why the existence of medical exemptions does not undermine these proffered interests and why restrictive grooming policies applied to inmates with relevant religious views is necessary given the fact that a vast and growing majority of jurisdictions do not have such policies or affirmatively grant religious exemptions despite sharing the same underlying penological interests as those states with restrictive grooming codes. A state with a restrictive grooming policy may satisfactorily defend these policies only by showing a particularized evidentiary basis for why the specific inmate in question poses an actual or threatened risk to a penological interest that supports the challenged policies.

This searching standard, I posit, should replace the more deferential standard that the Eleventh Circuit has applied. If adopted, the Eleventh Circuit would not only maximize the religious freedom of inmates, but prevent states from circumventing liability and restricting religious exercise by merely reciting its penological interests and providing generalized support for its policies. The court would also bring itself in line with what appears to be a shift in the ability of states to meet its penological goals without resorting to restrictions on grooming.

Keywords: prison, inmates, incarceration, First Amendment, free exercise, grooming, hair, RLUIPA, Eleventh Circuit

Suggested Citation

Sidhu, Dawinder S., Religious Freedom and Inmate Grooming Standards (May 24, 2012). 66 University of Miami Law Review 923 (2012). Available at SSRN: or

Dawinder Sidhu (Contact Author)

University of Baltimore School of Law ( email )

1401 N. Charles Street
Baltimore, MD 21201
United States

Shook, Hardy & Bacon

1155 F Street NW
Suite 200
Washington, DC 20004
United States

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