Retired Supreme Court Justice Sandra Day O'Connor joined a panel of the Fourth Circuit Court of Appeals, by designation, in finding that a district court had erred in upholding a Virginia prison grooming policy that prohibited prisoners from wearing beards.

In 1999, the Virginia Department of Corrections (VDOC) adopted a grooming policy that forbid prisoners from wearing beards. The policy stated that "beards ... could conceal contraband; promote identification with gangs; create a health, hygiene, or sanitation hazard; or could significantly compromise the ability to identify an offender."

If a Virginia state prisoner grew a beard in violation of the policy, he was first ordered to shave. If he refused, he was placed in segregation and then transferred to a different facility where he suffered the loss of privileges, including "access to personal property, movement rights, the right to eat and associate with others, recreation time, and visitation time."

The only exception to the VDOC's beard ban was a medical exemption, which allowed prisoners with a physician's "No Shave Pass" to maintain a one-fourth-inch beard.

VDOC prisoner William R. Couch, a Sunni Muslim, claimed that "his religion requires that he grow a beard." Prior to 1999 when the grooming policy went into effect, "he continuously maintained a beard in compliance with his faith." However, Couch apparently complied with the beard ban between 1999 and 2009.

In December 2009, "Couch requested permission to grow a one-eighth-inch beard in order to comply with his religious obligations." He cited the one-fourth-inch medical exemption as evidence that a one-eighth-inch religious exemption would not cause any problems.

After VDOC officials denied Couch's requests and grievances, he filed suit in federal court, alleging that the beard ban violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment free exercise rights. The district court granted summary judgment to the defendants and Couch appealed.

Relying on Couch's testimony "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," the Fourth Circuit found "that maintaining a beard is a qualifying religious exercise under RLUIPA."

Although RLUIPA does not define the "substantial burden" that prison officials may not place on a prisoner's religious exercise, the appellate court determined that the consequences of non-compliance with the VDOC's beard ban "fit squarely within the accepted definition of 'substantial burden.' ... Therefore, Couch has satisfied his obligation of showing a substantial burden on his religious exercise."

As a result, the burden shifted to prison officials to "prove that the challenged policy is the least restrictive means of furthering a compelling governmental interest."

Giving deference to the "experience and expertise" of VDOC Deputy Director of Operations John M. Jabe, the Court of Appeals found "that the Policy, which prohibits Couch from growing a beard, is in furtherance of compelling governmental interests," citing DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011) (prison grooming policy furthered compelling interests based on security concerns such as easy identification of prisoners, gang affiliation and the ability to conceal contraband within a beard).

However, the Fourth Circuit noted that prison officials "must also establish that the Policy is the least restrictive means of furthering the compelling governmental interests that they identify," under 42 U.S.C. § 2000cc-2(a)(2). And citing its decision in Smith v. Ozmint, 578 F.3d 246 (4th Cir. 2009) [PLN, Feb. 2011, p.42], the appellate court observed it has "required that the government, consistent with the RLUIPA statutory scheme, acknowledge and give some consideration to less restrictive alternatives."

The Court of Appeals explained that in Smith, it had found an affidavit filed by prison officials "to be deficient, in part, because it was general and did not indicate consideration of less restrictive alternatives." It also "failed to explain how the prison could accommodate other exceptions to the grooming policy but could not accommodate a religious exception." In Couch's case, the Fourth Circuit found that the defendants' affidavits "suffer from many of the same deficiencies identified in Smith."

Ultimately, the appellate court held that the defendants "did not satisfy their burden of showing that the Policy was the least restrictive means of furthering the identified compelling interests." As such, the district court's grant of summary judgment to the defendants was reversed. See: Couch v. Jabe, 679 F.3d 197 (4th Cir. 2012).

Following remand, the case settled in September 2012 with the VDOC agreeing to make changes to its grooming policy. Couch was allowed to "grow and maintain a ¼ inch beard consistent with the provisions of [VDOC] Operating Procedure 864.1 effective October 1, 2012." The amended grooming policy allows all Virginia state prisoners to maintain a beard of ¼ inch maximum length, and "no prior approval or shave pass is required."

Further, the VDOC agreed to pay $28,562.97 in Couch's attorney fees and expenses. He was represented by Charlottesville, Virginia attorney Jeffrey E. Fogel. See: Couch v. Jabe, U.S.D.C. (W.D. Vir.), Case No. 5:10-cv-00072.

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