Another Interesting Headscarf Case

Zargary v. New York (S.D.N.Y. 2009):

The Court finds that it is policy at Singer Correctional to photograph inmates without hats or head coverings during the admissions process. The photograph or photographs are placed on identification cards used by both the inmates and corrections officers…. The requirement that the photograph be taken without any head covering arises from the need for a picture of the inmate that does not readily change over time….

On the evening of August 5, 1999, at approximately 11:20 p.m., Ms. Zargary arrived at Singer Correctional wearing a head scarf. During the admissions process, and pursuant to Singer Correctional’s policy, Officer Johnson attempted to photograph Ms. Zargary without her head scarf. Ms. Zargary refused to remove her head scarf for religious reasons….

Because the challenged regulation is penological and because plaintiff was an inmate when the regulation was applied to her, plaintiff’s challenge under the Free Exercise clause “is judged ‘under a reasonableness test less restrictive than that ordinarily applied’: a regulation that burdens a protected right passes constitutional muster ‘if it is reasonably related to legitimate penological interests.'” … [B]ecause the events at issue in this case preceded the enactment of RLUIPA, application of that statute’s standard would be incorrect as a matter of law….

Singer Correctional’s requirement that an inmate’s head be uncovered for less than 10 seconds so that she can be photographed has a rational connection to a legitimate governmental objective. Being able to accurately identify inmates is clearly essential to maintain security at correctional facilities. Without institutional memory of an inmate’s appearance, corrections officers who had never seen the inmate would be unable to identify her if she were new to the facility, a transferee, or an escapee. Requiring that the inmate’s head be uncovered in the photograph is certainly rationally related to this objective. If an inmate’s habit is to wear a hat or headdress, she could change her appearance, perhaps dramatically, in an instant by removing that hat or headdress. While there are certainly other ways for an inmate to change her facial appearance, this fact does not render Singer Correctional’s policy irrational or invalid….

For this reason, the Court concludes that the facts here are distinguishable from those in Benjamin v. Coughlin, 905 F.2d 571 (2d Cir.1990), which held that cutting an inmate’s hair for a photo ID violated the Free Exercise Clause. In Benjamin, the plaintiff was a member of the Rastafarian Movement, a religion that proscribes the cutting of a man’s hair. Because prison officials’ only problem with the plaintiff’s hair was that it covered his face, there was a simple alternative that accommodated the interests of all parties: pulling the inmate’s hair back in a pony tail to reveal his facial features. Here, there was no way to partially remove or “pull back” plaintiff’s headdress that would have accommodated both plaintiff and Singer Correctional’s interests….

Naturally, the case is of limited precedential value, given the intervening enactment of RLUIPA (the Religious Land Use and Institutionalized Persons Act), but I thought it was still interesting enough to pass along.