That was the main question yesterday in Deaton v. Arkansas Department of Correction. Arkansas prisoner Christopher Deaton wants to grow a full-length beard for religious reasons, but prison policy doesn’t allow it because of safety concerns. Deaton sued under the Religious Land Use and Institutionalized Person Act (RLUIPA), but a federal district court threw out the case and yesterday an Eighth Circuit panel summarily affirmed that ruling in a one-paragraph order.
One paragraph, because the Eighth Circuit has already decided this question. In fact, the court ruled last year in Holt v. Hobbs that the no-beard policy doesn’t violate RLUIPA even if the prisoner agrees to keep his facial hair to a half inch. And since one three-judge panel cannot overrule another, the panel in Deaton has no authority to say that a full-length beard is okay.
But it might soon. Which is why Judge Colloton dissented. The Supreme Court granted cert. in Holt and heard oral argument in October. That means a decision could be coming out any day, and any day the law in the Eighth Circuit might be completely different. So why not wait, Judge Colloton asks:
This case is factually distinguishable from Holt, because appellant Deaton—like the prisoner in Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008)—claims a right based on RLUIPA to grow a full beard in accordance with his religious beliefs. But the Court’s reasoning in Holt will inform how Deaton’s claim should be analyzed and whether Fegans has continuing vitality. In the interest of judicial economy, I would hold this case briefly pending a decision in Holt rather than burden Mr. Deaton with the need to file a petition for writ of certiorari to secure an order granting certiorari,vacating this court’s decision, and remanding for further consideration in light of Holt.
That’s not the kind of dissent we usually get to see. It’s not about the merits of the case (everyone agrees that Eighth Circuit precedent dictates the outcome, at least for now) but on how the court should conduct its business. Assuming he does not file for rehearing, Deaton will have to write and file a cert. petition and file a motion to proceed in forma pauperis (i.e., ask the court to waive the filing fee). He has 90 days to do that, so the Supreme Court may very well have decided Holt by then. That, though, won’t alleviate the need for the filings, even if it’s clear that Deaton would win under the new Supreme Court decision. (And if oral argument is any indication, it seems likely that Deaton will get some help.)
But the extra burden isn’t just on Deaton. The Supreme Court clerk’s office will have to docket the case, a law clerk in the Supreme Court clerk pool will have to review the cert. petition, verify that the Holt decision could possibly change the outcome, and draft a memo to the justices recommending that the court grant the petition and remand the case to the Eighth Circuit. Once the Court enters the order, the Eighth Circuit clerk’s office will have to notify the panel that the case is back, thus putting the three judges back in the same position they would have been had they held the case (which was submitted just last month) a few more months. Hence Judge Colloton’s dissent.