The Volokh Conspiracy
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Discrimination Between Muslim Prisoners' Kufis and Jewish Prisoners' Yarmulkes Is Unconstitutional
[UPDATE: Comments now work.]
From Moore v. Washington, decided Wednesday by Judge George Caram Steeh (E.D. Mich.):
Plaintiff John Patrick Moore, II is in the custody of the Michigan Department of Corrections ("MDOC")…. Moore is a devout, practicing Sunni Muslim who alleges violations of his religious rights due to MDOC policies that limit his ability to wear a kufi in the prison. {The MDOC changed their policy in February 2021 and now permits male Muslims to always wear a kufi.} …
The magistrate judge found that existing legal precedent would have given officials ample warning that prohibiting Muslim prisoners from wearing their kufi at all times would violate their constitutional rights. In reaching this conclusion, the court looked to Sixth Circuit caselaw which holds that the Free Exercise Clause of the First Amendment prohibits prison regulations that infringe on prisoners' sincerely held beliefs "without any valid penological justification."
To be permissible under the First Amendment, MDOC's regulation must have had a "valid, rational connection" to a "legitimate governmental interest," and "the governmental objective must be a legitimate and neutral one." Turner v. Safley (1987) (citation and quotation marks omitted). Defendants relied on Adrian Dirschell, the current special activities coordinator of MDOC, who testified that he did not believe that Islamic law required followers to always wear a kufi, that kufis and yarmulkes were "very similar," that "a lot of times you can't tell the difference," and that there was no distinguishable security concern between the two headgear. The Sixth Circuit holds that it is the sincere religious belief of the individual that determines what is required by that religion, and not what MDOC thinks is required by that religion.
As for defendants' legitimate penological interest in support of the policy, MDOC Deputy Director of Correctional Facilities Administration, Jeremy Bush, testified that any time a prisoner adds a layer of clothing it presents an opportunity for the prisoner to conceal contraband. The magistrate discounted this evidence because Bush acknowledged he did not know much about kufis and knew nothing about MDOC's reasoning for limiting when they could be worn. On the other hand, defendant Campbell, the ARF warden, denied that discussions about the limitation on wearing kufis were about hiding contraband. There was further testimony from MDOC officials that kufis and yarmulkes are "very similar" and that there was no distinguishable security concern between the two headgear. Defendants have not shown a legitimate penological interest in overcoming Moore's sincerely held religious belief.
Next, defendants argue that the law was not clearly established prior to February 22, 2021 that prisoners had a right to always wear a kufi. The relevant analysis is whether defendants can proffer a legitimate penological interest for restricting Moore's right to always [wear] a kufi. As discussed above, defendant's penological reason proffered for treating Muslims' and Jews' headgear differently is not sufficiently supported for the Court to conclude that defendants did not violate Moore's constitutional rights….
[As to the Equal Protection Clause, o]nce again, defendants rely on their understanding of Muslim law and on their alleged rational penological reason to support a good faith basis for treating Muslims' and Jews' headgear differently. However, courts "treat as presumptively invidious those classifications that disadvantage a 'suspect class,' or that impinge upon the exercise of a 'fundamental right.'" The policy at issue made a facially discriminatory distinction between Jewish men, who could wear their religious head coverings at all time, and Muslim men, who could wear a kufi only in their cells or around religious activities….
