Substantive Due Process Claims on the Right to Bear Facial Hair
Kelley v. Johnson, 425 U.S. 238, decided by the U.S. Supreme Court in 1976, provides an excellent starting point for this essay. As a substantive due process case, Kelley goes to the very heart of whether personal appearance falls within the scope of a fundamental right and liberty. The case involved an officer from the Suffolk County Police Department who challenged, as violation of the Fourteenth Amendment, the county's grooming policies, which prohibited officers from wearing beards or goatees and prescribed the length of their hair, mustaches, and sideburns. Are mustaches in style 2015.
The Court, in its analysis, first noted that, “whether the citizenry at large has some sort of ‘liberty’ interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any, guidance.” Assuming “an affirmative answer for purposes of deciding this case,” the majority—careful in distinguishing police officers from average citizens—determined that the appropriate test was “whether respondent can demonstrate that there is no rational connection between the regulation... and the promotion of safety of persons and property.” In rejecting the officer's claim, the Court found that either “a desire to make police officers readily recognizable to the members of the public, or a desire for the esprit de corps which such similarity [in appearance] is felt to inculcate within the police force itself” was a “sufficiently rational justification for [the] regulations.”
In distinguishing police officers, as members of a "uniformed civilian service," from other state employees, Kelly left open the question of where to draw the line between government personnel who may or may not benefit from a liberty interest in grooming practices. Few federal cases have applied Kelley’s rational basis test in deciding due process questions related to facial hair. In 1978, however, the Seventh Circuit Court of Appeals, in Pence v. Rosenquist, 573 F.2d 395, held that a public high school’s “policy of not permitting a person with a mustache, no matter how neatly trimmed, to drive a school bus lacks any rational relationship with a proper school purpose.” In so deciding, the court overruled one of its earlier decisions, Miller v. School District No. 167, 495 F.2d 658 (7th Cir. 1974), which had held “categorically that a government employee’s interest in choosing a style of appearance is not significant enough to raise a constitutional issue when he is discharged or excluded from government employment because the employer requires a different style.”
Taken together (though without exhaustive analysis of cases decided in other jurisdictions), Kelley and Pence seem to indicate that, in assessing substantive due process claims related to matters of personal appearance, the rights of uniformed governmental officers, such as the police or those in the military, differ significantly from other public employees (or, for that matter, the average citizen).
Enforcement of Employer’s Grooming Policy Under Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits employers —including federal, state, and local governments— from discriminating against employees on account of race, color, religion, sex, or national origin. Courts have held that this federal measure protects against not only employment practices of facial (or blatant) discrimination, but also those which—although ostensibly neutral—have a discriminatory effect on employees. In other words, “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
In certain circumstances, however, the law permits a private employer to impose reasonable qualifications or policies that result in the different treatment of distinct classes of employees. Specifically, Title VII authorizes discrimination on the basis of religion, sex, or national origin (but not race) to the extent that these characteristics implicate “a bona fide occupational qualification reasonably necessary to the normal operation of a particular business.” For example, a Catholic church seeking to hire a new priest may, without violating the law, exclude potential applicants not of that particular faith. Whether these qualifications are discriminatory either by design or in effect, courts have held that they may continue so long as there is a legitimate (nonracial) justification. The “touchstone,” or litmus test, according to the Court in Griggs, “is business necessity.”
Using this standard, several federal courts have interpreted Title VII in the context of a private employer’s grooming policies. Brown v. D.C. Transit System, Inc., decided by the D.C. Circuit Court of Appeals in 1975, serves as an illustrative case. According to the court,
[I]ndividual citizens have a constitutional right to wear beards, sideburns and mustaches in any form and to any length they may choose. But that is not a right protected by the Federal Government, by statute or otherwise, in a situation where a private employer has prescribed regulations governing the grooming of its employees while in that employer's service.
Workplace grooming policies, the court in Brown declared, “are simply non-discriminatory conditions of employment falling within the ambit of managerial decision to promote the best interests of its business.”
Four years after the decision in Brown, Indiana courts had an opportunity to consider whether an employer’s grooming policy withstood protections against discrimination afforded by the state’s civil rights law (several provisions of which are analogous to its federal counterpart).
In Indiana Civil Rights Commission v. Sutherland Lumber, a retail lumber yard located in Ft. Wayne, Indiana, required all of its employees, “regardless of their sex, to maintain a neat and clean personal appearance in accordance with [the company’s] uniform grooming policy.” The company had apparently relaxed its policy against mustaches so long as they were “kept neat and trimmed.” However, once some of the employees began abusing the rule, Sutherland returned to its policy of clean-shaven personnel. When certain mustachioed employees refused to take up the blade, the company terminated their services. Unhappy with this outcome, the employees filed complaints with Indiana Civil Rights Commission, alleging sex discrimination by Sutherland.
After the Commission found for the employees, Sutherland sought judicial review of the administrative decision. The trial court reversed the Commission’s order, concluding that the employees “could have remained employed... if they had not refused to shave their moustaches.” On appeal, the Commission argued that Sutherland’s policy (1) treated men and women differently as a result of a sexual stereotype, and (2) denied equal employment opportunity based on an “immutable characteristic” found only in men. In support of its argument, the Commission emphasized its authority to implement regulations under the Indiana Civil Rights Act and that the legislature intended the law to be interpreted broadly.
As a case of first impression in the state, the Indiana Court of Appeals looked to federal decisions, not as binding authority, but “for guidance as to analytic approach and construction of legislative intent.” With this precedent, the court used a three-part test, examining whether (1) similarly situated employees received different treatment, (2) the legislature intended to prohibit the specific type of alleged discrimination, or (3) there was a “bona fide occupational qualification” that justified the discrimination.
As to the first level of inquiry, the court concluded that, because “Sutherland’s male employees with moustaches were treated differently than male employees who were clean shaven,” the company’s “grooming policy discriminated between similarly situated males without likewise affecting females.”
Popular facial hair styles
Next, the court examined whether the legislature intended to proscribe the type of discrimination at issue. Here, the court determined that the purpose of Title VII was “to provide equal employment opportunity which may not be thwarted by employers who discriminate on the basis of an immutable characteristic or in violation of a fundamental right.” The former attributes “include factors such as race, national origin, and color.” Fundamental rights, on the other hand, “such as religion, procreation, or marriage, are also protected,” despite lacking immutable qualities.
While acknowledging “the inherent ability of males to grow beards and moustaches,” the court recognized that “the growth and maintenance of facial hair is not an absolute quality.” Rather, “[i]t can be changed through shaving, if the individual so desires, for cosmetic effect.” Thus, while “[a]n individual has a constitutional right to wear beards, sideburns, or moustaches,” it is “not a fundamental right protected by the federal government.”
Prisoner Beard Regulations and the Free Exercise of Religion Under the First Amendment and RLUIPA
Beyond the work environment, grooming policies restricting facial hair often arise in another setting: correctional facilities. The rationale behind these institutional regulations typically relates to interests in maintaining security—including the effective identification of inmates and preventing the concealment of contraband—and the general promotion of health and hygiene.
Incarceration, by its very nature, entails severe restrictions on a prisoner’s rights and personal freedoms. Without the discretion to implement and enforce regulations prescribing prisoner conduct, the nation’s penal system would effectively cease to function. Thus, it should come as no surprise that courts have taken a highly-deferential approach toward prison officials in administering policies designed to maintain a safe, secure, and orderly correctional environment. At the same time, courts must balance this deference with the rights and interests of those incarcerated. While prison epitomizes the deprivation of personal liberty, it does not result in an inmate’s complete forfeiture of constitutional rights. Accordingly, grooming regulations may impinge upon the rights of a prisoner whose deeply-held religious beliefs require the growth of a beard. Inmates adhering to various doctrinal faiths—including Judaism, Islam, and Sikhism—have challenged these regulations under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
First Amendment "Free Exercise" Claims
In First Amendment "free exercise" challenges to prison regulations, courts have generally employed a deferential “rational relationship” standard of review. Under this standard, courts are more likely than not to uphold a regulation as valid, so long as it reasonably relates to a legitimate penological interest.
While there are no cases in Indiana, either state or federal, that speak precisely to the issue of a prisoner’s First Amendment right to facial hair, the case of Reed v. Faulkner, 653 F.Supp. 965, decided in 1987 by the Northern District Court of Indiana, is instructive. In that case, an inmate challenged the Indiana State Prison’s grooming policies as an infringement of his First Amendment right to wear dreadlocks in accordance with his professed belief in the Rastafarian religion.
By statute, “[t]he [Indiana Department of Corrections] may supervise and control the hygiene, grooming, and attire of confined offenders to the extent reasonably necessary to maintain a sanitary, safe, and secure environment.” Ind. Code § 11-11-4-2. The prison’s grooming policy, at the time, permitted beards, braided hair, and “Afros,” so long as the “hair on the head should not entirely cover the ears, touch the collars, or extend over the eyebrows.”
In light of the U.S. Supreme Court’s decision in Kelly v. Johnson, the court in Faulkner concluded that, “as a general proposition the managers of an all male maximum security state prison can regulate the length of hair and beards of those inmates.” In deciding whether this policy infringed upon the inmate’s First Amendment rights, the court considered several factors, including, among other things, (1) whether his religious beliefs contemplated the length and management of human hair, (2) whether he demonstrated sincerity in his religious beliefs, and (3) whether a legitimate security interest existed to restrict his free exercise of religion.
In concluding that the inmate had not, in fact, adhered to Rastafarian teachings regarding the treatment of hair, the court—without expressly discrediting the prisoner's sincerely-held beliefs—found no basis for granting him relief on First Amendment grounds. Moreover, the court found no evidence that the prison’s grooming policy, which was “designed to achieve important penological goals,” was unreasonable. In support of this conclusion, the court enumerated several reasons it considered as legitimate for upholding the policy. Among these included the typical health, safety, and security reasons outlined above, but also the concern for "potential racial conflict from the professed Rastafarian belief that dreadlock symbolizes black superiority."
Enacted by Congress in 2000, RLUIPA recognizes the important role that religion plays in the process of prisoner rehabilitation. The Act prohibits a state government from “impos[ing] a substantial burden on the religious exercise of a person” confined to a penal institution receiving federal funds “unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.A. § 2000cc-1(a). In other words, if a prisoner can show that beard growth constitutes a genuine “religious exercise,” the government in turn must show that, not only is there a compelling reason for implementing its grooming policy, but that there is also no better way to achieve its intended purpose. In this respect, RLUIPA presents a higher burden of proof for the government to overcome than in First Amendment cases.
While no RLUIPA claims have arisen in Indiana courts, a recent decision by the United States Supreme Court provides authority that is binding on the state. In Holt v. Hobbs, 135 S. Ct. 853 (2015), the Court struck down an Arkansas Department of Correction’s grooming policy under the federal statute. In that case, the ADC’s grooming policy broadly prohibited the wearing of beards, absent a dermatological condition, and only permitted prisoners to wear facial hair in the form of “a neatly trimmed mustache that d[id] not extend beyond the corner of the mouth or over the lip.” Failure to comply with this policy subjected an inmate to disciplinary action. Inmate Gregory Holt, a practicing Muslim also known as Abdul Maalik Muhammad, requested an exemption from the prison’s no-beard policy to accommodate his religious beliefs. Despite Holt’s compromise proposal of growing a half-inch beard, prison officials rejected his request, claiming safety and security interests.
In a unanimous decision, the Court concluded that the grooming policy substantially burdened Holt’s religious liberties. While acknowledging the ADC’s “compelling interest in staunching the flow of contraband into and within its facilities,” the Court ultimately concluded that the state failed to demonstrate why alternative, less restrictive policies were inadequate. In particular, the Court noted that prison officials already had to search for contraband in head hair (which could be grown longer than a half-inch) and clothing. Consequently, the Court found it “hard to swallow the argument that denying petitioner a [half]-inch beard actually furthers the Department's interest in rooting out contraband.”
Conclusion: A Note on Standards of Personal Appearance in a Court of Law
Courts of law posses the discretionary authority to prescribe rules of procedure or practice considered necessary for the proper administration of justice. This includes the power to impose standards of personal appearance or attire on persons appearing before the court—whether attorneys, litigants, jurors, or observers. For example, local court rules for Jasper County, Indiana, provide that
The dignity of the Court is to be maintained and preserved at all times. The Court will require proper decorum and dress of all counsel and of all persons entering the courtroom. Gentlemen attorneys shall wear jackets and ties at all times. Female attorneys shall dress appropriately and professionally at all times as well.
Benjamin Cardozo, Chief Judge of the New York Court of Appeals from 1927 to 1932 and Associate Justice of the U.S. Supreme Court from 1932 to 1938, once noted that a court's power to impose standards of personal appearance on lawyers had been historically regulated with “minute particularity, even in matters so personal as the growth of their beards or the cut of their dress.” People ex rel. Karlin v. Culkin, 162 N.E. 487, 490 (Ct. App. N.Y. 1928) (emphasis added). While modern courts have broad discretion over matters of personal appearance, the cases surveyed in this essay would seem to provide little, if any, justification for enforcing such a strict policy today.
What Judge Cardozo’s words do reveal, however, are the shifting societal perceptions of facial hair—both within and outside the halls of justice. Undoubtedly, the lawyers depicted in the gallery above represented the latest in nineteenth-century men's grooming fashions; in a modern courtroom, however, their presence would likely raise the proverbial judicial eyebrow.
Brown v. D.C. Transit System, Inc., 523 F.2d 725, 728 (D.C. Cir. 1975).
Coolman v. Robinson, 452 F.Supp. 1324 (N.D. Ind. 1978) (travel).
In re N.G., 2015 WL 5698571 (Ind. Ct. App. 2015) (home and children).
Kirtley v. State, 84 N.E.2d 712 (Ind. 1949) (proper vocation).
Ohio Valley Gas, Inc. v. Blackburn, 445 N.E.2d 1378 (Ind. Ct. App. 1983) (contract).
State Board of Barber Examiners v. Cloud, 44 N.E.2d 972 (Ind. 1942) (lawful business).
State v. Buxton, 148 N.E.2d 547 (Ind. 1958) (unreasonable search and seizure).
State ex rel. Pollard v. Criminal Ct. of Marion County, 329 N.E.2d 573 (Ind. 1975) (privacy).
Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.).
Abramovsky, Abraham. First Amendment Rights of Jewish Prisoners: Kosher Foods, Skull Caps, and Beards, 21 Am. J. Crim. L. 241 (1994).
Chaballout, Abdul R. A Treatise on the Mustache, The Art of Manliness (Sept. 8, 2009).
Jensen, Eric. Taxation of Beards, 6 Green Bag 2d 431 (2003).
Kletter, Fern L. Prisoner Beard Regulations as Religious Discrimination Under First Amendment or Religious Land Use and Institutionalized Persons Act, 93 A.L.R. Fed. 2d 439 (2015)
Liptak, Adam. A Prisoner’s Beard Offers the Next Test of Religious Liberty for the Supreme Court, N.Y. Times (Sept. 2, 2014).
Maloney, James M. Suits for the Hirsute: Defending Against America’s Undeclared War on Beards in the Workplace, 63 Fordham L. Rev. 1203 (1995).
Trenker, Thomas R. Power of Court to Impose Standard of Personal Appearance or Attire, 73 A.L.R.3d 353 (1976).
Volokh, Eugene. Holt v. Hobbs: Unanimous Victory for Muslim Prisoner in Religious Rights Case, Wash. Post (Jan. 20, 2015).
Winston, Kimberly. Religious Beards: From Sikhs to Jews These Are Some Facial Hair Styles of the Faithful, Huff. Post (Oct. 8, 2014).