Moskowitz v. Wilkinson, Civ. No. B-77-55.

• Citation: 432 F. Supp. 947
• Decision Date: 25 May 1977
• Docket Number: Civ. No. B-77-55.
• Court: U.S. District Court — District of Connecticut
• Parties: Philip N. MOSKOWITZ v. George C. WILKINSON, Warden, Federal Correctional Institution, Danbury, Connecticut.

432 F. Supp. 947

Philip N. MOSKOWITZ v. George C. WILKINSON, Warden, Federal Correctional Institution, Danbury, Connecticut.

Civ. No. B-77-55.

United States District Court, D. Connecticut.

May 25, 1977.

Dennis Curtis, Jerome N. Frank Legal Services Organization, New Haven, Conn., Joseph S. Genova & Fred C. Zacharias, Law Student Interns, Yale Law School, New Haven, Conn., for petitioner.

Raymond L. Sweigart, Asst. U. S. Atty., New Haven, Conn., and Mitchell Dubick, U. S. Department of Justice, Washington, D. C., for respondent.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

Philip Moskowitz is an Orthodox Jewish prisoner incarcerated at the Federal Correctional Institution, Danbury. For religious reasons he declines to remove his beard, and is therefore in violation of the current policies of the Bureau of Prisons and F.C.I., Danbury, which now absolutely prohibit beards.¹ Petitioner has been the subject of four disciplinary proceedings for his violation of the no-beard policy. On each of these occasions the Institution Disciplinary Committee ordered that seven days of statutory good time be forfeited. On the last occasion the Committee ordered that he be placed in disciplinary segregation. Upon his petition for a writ of habeas corpus and motion for a temporary restraining order, the Court restrained prison officials from imposing adverse consequences on petitioner for his refusal to shave his beard pending disposition of his habeas corpus petition. A full evidentiary hearing has been held, and the matter is now ready for decision.

I. LEGAL STANDARD

The Supreme Court's decision in Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972), made clear that prisoners do not lose their right to practice their religion when the prison gate closes behind them. "Reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty." 405 U.S. at 322 n. 2, 92 S.Ct. at 1081 n. 2. As the Supreme Court stated in another First Amendment context,

... the limitation of First Amendment freedom must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The Second Circuit has applied the Procunier v. Martinez test in the religious freedom context to require a showing on behalf of the prison that a restriction on religious freedom is justified by an important or substantial government interest² and that the restriction is reasonably adapted to achieving that objective. Kahane v. Carlson, 527 F.2d 492 (2d Cir. 1975) (kosher food); Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976) (attendance at religious services). The Second Circuit has not yet ruled on the application of these principles to a no-beard rule. See Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976) (prisoner beard case remanded for hearing).

These cases indicate that consideration must be given to both the First Amendment interest at issue, and the governmental interest asserted, and that a judgment must be made as to whether the governmental interest justifies impairment of the First Amendment interest. Justification in this context must mean more than rationally related to advancing a legitimate objective. None of the cases indicates that a prison regulation is valid against First Amendment objections merely because it serves to advance to some extent an important or substantial governmental interest. In Martinez the Supreme Court said the restriction must be "generally necessary" to protect a legitimate governmental interest, even though there need not be certainty that the governmental interest will be adversely affected without the restriction. 416 U.S. at 414, 94 S.Ct. 1800.

II. THE PRISONER'S FIRST AMENDMENT INTEREST

Petitioner is an Orthodox Jew. He asserts that his religious belief forbids any cutting or shaving of his beard.

It is undisputed that there is substantial support in Jewish law and doctrine for the view that any cutting or shaving of the beard is impermissible. The belief derives from several Biblical verses³ and has the support of commentators on Jewish law.⁴

The Government concedes the existence of this authority but disputes its significance in the present case. It cites other Jewish authorities who express the view that removal of facial hair is permissible, at least if it is done with instruments that cut or clip the beard rather than shave or scrape the face. The argument is that "the Jewish religion" does not mandate the level of observance claimed on behalf of petitioner but rather recognizes varying levels of observance. The Government further contends that petitioner's claim to a sincere belief that he may never shave is undermined by his position up until the onset of this litigation that when forced to do so he would acquiesce in the trimming of his beard.

It cannot be denied that different levels of observance exist among the world's Jews. But the fact that some Jews do not object to shaving, or that others accept the distinction between shaving and cutting, does not defeat the plaintiff's claim. It is his own religious belief that is asserted, not anyone else's. The Court need not and should not attempt to determine whether a religious tribunal would hold that the tenets of the Jewish religion do not require petitioner to adhere to his preferred level of observance. He need not show that his religious practice is absolutely mandated in order to receive constitutional protection. Teterud v. Gillman, 385 F.Supp. 153 (S.D. Iowa 1974), aff'd sub nom. Teterud v. Burns, 522 F.2d 357 (8th Cir. 1975); Monroe v. Bombard, 422 F.Supp. 211, 215 n. 4 (S.D. N.Y.1976); Geller v. Secretary of Defense, 423 F.Supp. 16, 17 (D.D.C.1976). The showing of a belief or practice deeply rooted in religious doctrine is sufficient to trigger the Government's obligation under the Constitution to justify its restriction as reasonably necessary in support of an important or substantial interest.⁵ The Government does not avoid this obligation by pointing to other believers who accept less rigorous views and practices.

Furthermore, although the Government argues that the petitioner has changed his religious beliefs upon filing this suit, the petitioner's showing, even if some change has occurred, is clearly sufficient to confer on him standing to challenge the Bureau's regulation on religious grounds. He asserts that he has never voluntarily cut his beard in his adult life. He has sought guidance from Orthodox Jewish rabbis on how to adhere to his religious obligation while in prison. On four separate occasions he suffered disciplinary proceedings and the imposition of sanctions including the forfeiture of good time rather than cut his beard in violation of his religious beliefs. Although a prisoner with no religious beliefs at all, or a demonstrably insincere religious belief adopted only for the purpose of obtaining a benefit, might not have standing to raise the religious claim and trigger the Government's obligation to justify its regulation, petitioner has more than met the standing requirement to assert his constitutional claim.

III. THE GOVERNMENTAL INTEREST

The governmental interest at stake in the promulgation and enforcement of the no-beard rule is asserted to be the need for effective identification of inmates to insure prison security and to facilitate apprehension of inmate escapees.⁶ This is an "important and substantial interest" within the meaning of Martinez, Kahane, and Mawhinney. The critical issue is whether this governmental interest reasonably justifies the impairment of petitioner's ability to observe his religious beliefs.

The Government's evidence established that the wearing of a beard poses some risk to identification of inmates, both in prison and in the event of escape, because, according to the testimony of experienced investigators, removal of a beard or even changes in its length and shape can significantly alter a person's appearance and diminish prospects of recognition. But obviously the Government cannot require whatever would promote easier identification of inmates regardless of the impact on constitutionally protected liberties. The constitutional reasonableness of this prohibition remains to be determined.⁷

The Government's contention that a no-beard rule is reasonably justified is significantly undermined by the experience of other prison systems. A survey of nearly all the state prison systems conducted at the Court's request by the National Institute of Corrections and made part of the record in this case shows that approximately half of the states allow beards.⁸ As the Supreme Court stated in Procunier v. Martinez, 416 U.S. at 414 n. 14, 94 S.Ct. 1800 the policies followed at other well-run institutions are relevant to a determination of the necessity for the restriction, and the fact that half the states operate their prisons without a no-beard rule certainly casts doubt on the Government's claim.

The need for a no-beard rule to facilitate inmate identification is also undermined by the Bureau's present policy of allowing hair styles of any length as well as mustaches and sideburns. Although the Government's witnesses testified that identification problems are somewhat greater where a suspect removes or changes his beard than where he merely changes his hair style or his mustache, the incremental difficulties are not shown to pose a sufficiently serious risk as to outweigh the inmate's religious interest in wearing a beard.⁹ Special identification problems for bearded inmates can be dealt with in far less restrictive ways such as by rephotographing the inmate if his appearance changes.¹⁰ Monroe v. Bombard, supra; Teterud v. Gillman, supra.

Further, during the period of approximately one year when the Bureau allowed beards for inmates with a religious claim,¹...