Fourth Circuit Prison Beard Case Remanded

Ordinarily we do not post about too many cases brought by prisoners alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reinstated in the context of land use and prison disputes the strict scrutiny balancing regime that Employment Division v. Smith had rejected.  Yet it may be of interest for readers to know that these cases are brought quite frequently by prisoners.  The prisoners generally lose.

But the Fourth Circuit yesterday gave a prisoner suing under RLUIPA a win.  Plaintiff is a Sunni Muslim prisoner serving multiple life sentences in Virginia who brought a RLUIPA claim when prison officials refused to let him grow a 1/8 inch beard in compliance with the requirements of his faith.  In 1999, the prison instituted a grooming policy prohibiting the wearing of beards, unless someone obtained a “No Shave Pass” from the prison’s medical authority, in which case they were allowed to sport a 1/4 inch beard.

Writing for a unanimous panel (which included Retired Supreme Court Justice Sandra Day O’Connor and Judge Dennis Shedd), Chief Judge Traxler first found that the grooming policy imposed a substantial burden on the plaintiff’s religious practice.  The Court also held that the state had a compelling interest in the grooming policy — accepting the prison’s claims about security, health, concerns about prisoner identification, and others.

The case was vacated and remanded on the issue of whether the policy was the least restrictive means of advancing the state’s compelling interest.  The plaintiff argued that a religious exemption for a 1/8 inch beard would have been just such a less restrictive means, but the prison officials rejected that solution, reasserting their interests in security and health.  That was deemed an insufficient response by the court: the prison officials’ affidavits did not:

address[] the feasibility of implementing a religious exemption or discuss whether a one-eighth-inch beard would in fact implicate the identified health and safety concerns in the Policy . . . . [T]hey fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.    

The key here was that the prison officials failed even to address the possibility of the 1/8 inch beard solution, or to explain why it would not fulfill the aims of the policy.  “That explanation, when it comes, will be afforded due deference.” 

The case is Couch v. Jabe, 2012 U.S. App. LEXIS 9602 (4th Cir. May 11, 2012).

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