CHICAGO (CN) – The 7th Circuit revived the claims of an Illinois inmate who says prison officials forced him to cut his dreadlocks.
Former Big Muddy Correctional Center inmate Omar Grayson is a member of the African Hebrew Israelites of Jerusalem, a sect that believes that black people today are descendants of Jews from the Old Testament.
In a federal complaint filed shortly before his release, Grayson claimed that prison employee Harold Schuler ordered the forcible shaving of Grayson’s dreadlocks., The guard allegedly claimed that the hair posed a security risk but declined to identify that risk specifically. When Grayson complained, the prison chaplain allegedly said that only Rastafarians can wear dreadlocks.
In tossing Grayson’s pro-se suit, which alleged violations of the First Amendment’s free-exercise clause, U.S. District Judge Michael Readan said sovereign immunity barred claims against the state and that the Religious Land Use and Institutionalized Persons Act does not support a suit against a prison official in his or her personal capacity.
Though the 7th Circuit agreed that Grayson’s religion does not seem to require adherents to wear dreadlocks, the court nevertheless said it would be discriminatory to shear Grayson’s hair off, but allow Rastafarian’s to wear dreadlocks.
State law says that “Illinois prison inmates are allowed to ‘have any length of hair’ they want, provided, so far as bears on this case that it ‘does not create a security risk,'” according to the three-judge panel.
The 11-page decision, penned by Judge Richard Posner, includes a photograph of “the late Jamaican musician Bob Marley (a Rastafarian).” Posner has included photos in his opinions before, most recently using pictures of ostriches and businessmen with their heads buried in the sand to depict lawyers who refuse to acknowledge circuit precedents in their briefs.
“Dreadlocks can attain a formidable length and density,” he wrote. “One can see why prison officials might fear that a shank or other contraband could be concealed in an inmate’s dreadlocks, or why they might want inmates to wear their hair short because inmates with long hair can more easily change their appearance, should they escape, by cutting their hair.”
Though Schuler did not specifically identify any of these concerns in Grayson’s case, prison officials have significant leeway to regulate inmates’ behavior.
“The case law indicates that a ban on long hair, including dreadlocks, even when motivated by sincere religious belief, would pass constitutional muster,” Posner wrote. “Regulations of general applicability, not intended to discriminate against a religion or a particular religious sect … [do not] violate the free exercise clause.”
But Posner called Grayson’s alleged treatment an example of “outright arbitrary discrimination,” rather than just a failure to “accommodate” religious rights.
Big Muddy can ban all prisoners from wearing dreadlocks, but this is not the prison’s de facto policy. Rather, allowing only Rastafarians to wear dreadlocks discriminates impermissibly in favor of one religious sect.
“Permitting prisoners to ‘have any length of hair … so long as’ it ‘does not create a security risk’ doesn’t sound like ‘prisoners must have short hair unless they are Rastafarians,'” Posner wrote. “Big Muddy Correctional Center allows Rastafarians to wear dreadlocks and has failed to give a reason for thinking that the plaintiff but not they would be a security risk if allowed to wear them.”
It would also run afoul of the First Amendment to give special accommodations only to members of religious sects that “officially” require them.
“Heretics have religious rights,” Posner wrote. “Religious beliefs must be sincere to be protected by the First Amendment, but it does not have to be orthodox. … Since heresy is not excluded from the protection of the free exercise clause, optional as distinct from mandatory religious observances aren’t excluded either.”
Though the guard is entitled to qualified immunity if he committed a reasonable error in failing to apply clearly established law, the 7th Circuit rejected this defense in Schuler’s case.
“He seems just to have been applying the Rastafarian exception, which could not reasonably be thought constitutional,” Posner concluded.
The court remanded the case for trial in the Southern District of Illinois.