TRAXLER, Chief Judge:
William R. Couch, a Sunni Muslim currently incarcerated in a state correctional facility, brought this action alleging that prison officials violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA") by refusing to permit him to grow a one-eighth-inch beard in compliance with the requirements of his faith.
Couch is a prisoner in the Augusta Correctional Center in Craigsville, Virginia. He has been incarcerated since 1990 and is serving multiple life sentences. As a Sunni Muslim, Couch claims that his religion requires that he grow a beard. Prior to 1999, he continuously maintained a beard in compliance with his faith.
In 1999, however, the Virginia Department of Corrections ("VDOC") instituted a grooming policy ("Policy"), which applies to the Augusta Correctional Center. The purpose of the Policy is "to facilitate the identification of offenders and to promote safety, security, and sanitation." J.A. 18. Under the policy, "[n]o beards . . . are allowed." J.A. 20. The policy further states that "beards that could conceal contraband; promote identification with gangs; create a health, hygiene, or sanitation hazard; or could significantly compromise the ability to identify an offender are not allowed." J.A. 19. Excepted from the prohibition on beards, however, are inmates who receive a "No Shave Pass" from a prison's medical authority based on a medical condition that is aggravated by shaving. Prisoners with a "No Shave Pass" are permitted to maintain a one-fourth-inch beard.
Prisoners without a "No Shave Pass" who nonetheless grow a beard are first given an order to shave. If they refuse to comply with the order, they are initially segregated from the general prison population. Continued refusal to comply with the grooming standards results in a transfer to the Graduated Privilege Program ("GPP"), which is located in a separate facility. The GPP is a program in which prisoners "have certain privileges restricted for a short term so that they may focus on more appropriate behaviors to enter regular general population." J.A. 36. Some of the privileges that are restricted or limited as part of the GPP include access to personal property, movement rights, the right to eat and associate with others, recreation time, and visitation time.
In December of 2009, Couch requested permission to grow a one-eighth-inch beard in order to comply with his religious obligations.
Having exhausted his administrative remedies, Couch filed a civil action in the Western District of Virginia against John Jabe, the Deputy Director of Operations for the VDOC; Daniel Braxton, the Warden of the Augusta Correctional Center; and Steve Hollar, the Assistant Warden of the Augusta Correctional Center (collectively the "Prison Officials"). In his two-count complaint, Couch alleged a violation
"We review a district court's grant of a motion for summary judgment de novo, applying the same legal standards as the district court." Nader v. Blair, 549 F.3d 953, 958 (4th Cir.2008). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
RLUIPA provides, in pertinent part, that
42 U.S.C. § 2000cc-1(a). A plaintiff bears the burden of persuasion on whether the policy or practice substantially burdens his exercise of religion. See 42 U.S.C. § 2000cc-2(b). If the plaintiff satisfies this requirement, the government must then prove that the challenged policy is the least restrictive means of furthering a compelling governmental interest. Id. § 2000cc-1(a); Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.2009). "As to those elements on which it bears the burden of proof, a government is only entitled to summary judgment if the proffered evidence is such that a rational factfinder could only find for the government." Smith, 578 F.3d at 250.
RLUIPA defines the term "religious exercise" broadly to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A). Couch testified that the primary religious texts of Islam command that he grow a beard and that the refusal to maintain a beard is a sin comparable in severity to eating pork. Accordingly, we find that maintaining a beard is a qualifying religious exercise under RLUIPA in this case. See Smith, 578 F.3d at 249, 251 (Rastafarian's desire to grow hair was qualifying religious exercise); Warsoldier v. Woodford, 418 F.3d 989, 991, 996 (9th Cir.2005) (Native American's desire to grow hair was qualifying religious exercise).
RLUIPA does not define the term "substantial burden"; however, we have explained that a substantial burden
Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.2006) (internal citation and quotation marks omitted). The stated purpose of the GPP is "to guide the offender to more appropriate behaviors," J.A. 36, a purpose that is achieved, in part, by limiting or taking away governmental benefits. The practices implemented through the GPP fit squarely within the accepted definition of "substantial burden." See Warsoldier, 418 F.3d at 995-96 (removing privileges in effort
Because Couch has demonstrated a substantial burden on his religious exercise, we turn next to the Prison Officials' burden under RLUIPA. We first address whether the Prison Officials can establish that the denial of Couch's request was in furtherance of a compelling governmental interest. See 42 U.S.C. § 2000cc-1 (a)(1).
Although RLUIPA must "be construed in favor of a broad protection of religious exercise," 42 U.S.C. § 2000cc-3(g), it must be applied "with particular sensitivity to security concerns," Cutter v. Wilkinson, 544 U.S. 709, 722, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). In this regard, "RLUIPA [is not meant] to elevate accommodation of religious observances over an institution's need to maintain order and safety." Id. We must "apply the Act's standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures." Id. at 723, 125 S.Ct. 2113 (internal quotation marks omitted). However, "a court should not rubber stamp or mechanically accept the judgments of prison administrators." Lovelace, 472 F.3d at 190. Rather, due deference will be afforded to those explanations that sufficiently "take[ ] into account any institutional need to maintain good order, security, and discipline." Id.
We have explained that the burden of justifying a policy in terms of security concerns is an "unremarkable step." Id. However, we have also found some attempts to demonstrate compelling governmental interests to be insufficient. See Smith, 578 F.3d at 252 (justification that policy was "`for security reasons' ... does not, by itself, explain why the security interest is compelling" (internal citation omitted)); Lovelace, 472 F.3d at 190 (bare assertion of a "`legitimate interest'" without further explanation is "superficial" and insufficient). These results are consistent with the notion that "the mere assertion of security or health reasons is not, by itself, enough for the Government to satisfy the compelling governmental interest requirement." Washington v. Klem, 497 F.3d 272, 283 (3d Cir.2007). "Rather, the particular policy must further th[e asserted] interest." Id.
To satisfy this burden, the Prison Officials relied on an affidavit from John M. Jabe, the Deputy Director of Operations for the VDOC. Jabe explained that the Policy furthers various health and security interests:
J.A. 13-14.
Unlike the explanations deemed insufficient in Smith and Lovelace, Jabe's affidavit connected the Policy's restrictions to specific health and security concerns and showed that those concerns are furthered by the Policy. See Jova v. Smith, 582 F.3d 410, 416 (2d Cir.2009) (finding a compelling interest based on "affidavits and exhibits which showed that the restrictions imposed ... were justified by powerful security and administrative interests"). Giving due deference to Jabe's experience and expertise, as we must, see Cutter, 544 U.S. at 723, 125 S.Ct. 2113, we find that the Policy, which prohibits Couch from growing a beard, is in furtherance of compelling governmental interests. Cf. DeMoss v. Crain, 636 F.3d 145, 153-54 (5th Cir.2011) (per curiam) (finding no clear error in district court's conclusion at bench trial that grooming policy furthered compelling interests within a prison based on security concerns such as easy identification, gang affiliation, and the ability to conceal contraband within a beard).
The Prison Officials must also establish that the Policy is the least restrictive means of furthering the compelling governmental interests that they identify. See 42 U.S.C. § 2000cc-1(a)(2). Couch proposed a less restrictive alternative to the Policy: a religious exemption from the Policy, which would permit him to grow and maintain a one-eighth-inch beard.
"RLUIPA adopts a ... strict scrutiny" standard. Lovelace, 472 F.3d at 198 n. 8; see also Vision Church v. Vill. of Long Grove, 468 F.3d 975, 996 (7th Cir.2006) ("RLUIPA provide[s] that, if a facially-neutral law ... imposes a substantial burden on religion, it is subject to strict scrutiny."); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 661 (10th Cir.2006) ("RLUIPA sets up a strict scrutiny standard...."). In strict scrutiny contexts other than RLUIPA, "the Supreme Court has suggested that the Government must consider and reject other means before it can conclude that the policy chosen is the least restrictive means." Washington, 497 F.3d at 284. Requiring the same consideration in the RLUIPA context is sensible in light of the statute's plain language. See id. ("[T]he phrase `least restrictive means' is, by definition, a relative term. It necessarily implies a comparison with other means."). Consistent with this reasoning, several circuits have held that the government, in the RLUIPA context, "cannot meet its burden to prove least restrictive means unless it demonstrates that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice." Warsoldier, 418 F.3d at 999; accord Washington, 497 F.3d at 284; Spratt v. Rhode Island Dep't of Corr., 482 F.3d 33, 41 (1st Cir.2007).
Although we have not explicitly set out that requirement, we have required that the government, consistent with the RLUIPA statutory scheme, acknowledge and give some consideration to less restrictive alternatives. For instance, in Smith, we vacated a grant of summary judgment in favor of several prison officials on the ground that the affidavit they relied upon was insufficient to show that forcibly shaving inmates was the least restrictive means of furthering the identified compelling governmental interest. See 578 F.3d at 253-54. We found the Smith affidavit to be deficient, in part, because it was general and did not indicate consideration of less restrictive alternatives. See id. at 253 (noting that affidavit "makes the conclusory argument that uniform application of the forced grooming policy is necessary"); id. at 253-54 (explaining that the affidavit "makes no attempt whatsoever to explain that hygiene and security concerns ... cannot be accommodated without forcibly shaving the heads of prisoners who wear long hair due to religious belief"). The Smith affidavit was also deficient because it failed to explain how the prison could accommodate other exceptions to the grooming policy but could not accommodate a religious exception. See id. at 254 (noting that the affidavit "does not explain why the [department of corrections] is able to deal with hygiene and security concerns with respect to female inmates who must keep their hair at least one (1) inch long"
The affidavits relied upon by the Prison Officials in this case suffer from many of the same deficiencies identified in the Smith affidavit. For instance, the affidavits of Jabe and Bass set forth the prison's general rules and procedures as they relate to the Policy. Apart from merely reiterating Couch's request, neither affidavit addresses the feasibility of implementing a religious exemption or discusses whether a one-eighth-inch beard would in fact implicate the identified health and security concerns in the Policy. The affidavits are also similar to the Smith affidavit insofar as they fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.
In sum, the Prison Officials failed to indicate any consideration of whether Couch's proposed alternative might be equally as successful as the Policy in furthering the identified compelling interests, and they failed to provide any acknowledgment that a religious exemption for a one-eighth-inch beard would implicate the identified compelling interests. The Prison Officials, therefore, did not satisfy their burden of showing that the Policy was the least restrictive means of furthering the identified compelling interests.
We note in conclusion that this result is not inconsistent with our obligation to defer to the wisdom and judgment of prison officials on matters of security. See Cutter, 544 U.S. at 723, 125 S.Ct. 2113. In this case, the Prison Officials simply failed to provide any explanation to which this court could defer. "That explanation, when it comes, will be afforded due deference." Lovelace, 472 F.3d at 190.
For the foregoing reasons, we vacate the district court's grant of summary judgment and remand for further proceedings consistent with this opinion. On remand, the Prison Officials may, if appropriate, renew their motion for summary judgment.
VACATED AND REMANDED