Fifth Circuit: Texas May Not Enforce Rule Prohibiting Religious Beards

By Matt Clarke

On April 2, 2013, the Fifth Circuit Court of Appeals held that the Texas Department of Criminal Justice could not continue to enforce a rule prohibiting prisoners from growing beards for religious reasons, in a case involving a Muslim prisoner.

Willie Lee Garner, a Texas state prisoner, filed a federal civil rights action against TDCJ officials pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (RLUIPA), alleging TDCJ's policy prohibiting him from wearing a quarter-inch beard imposed a substantial burden on his religious exercise. The district court denied Garner’s request for appointed counsel and granted defendants’ motion for summary judgment. Garner appealed and the Fifth Circuit Court of Appeals reversed the judgment on his RLUIPA claim in March 2009.

On remand, the district court appointed counsel and held a bench trial. It noted that it was not seriously contested that the TDCJ policy imposed a substantial burden on Garner's religious exercise. In light of the fact that TDCJ allowed some prisoners to wear a quarter-inch beard for medical purposes, TDCJ had failed to prove that the beard prohibition in its grooming policy was the least restrictive means of furthering a compelling government interest and thus the policy violates RLUIPA. The court enjoined defendants from enforcing the no-beard policy against Garner in 2011. The defendants appealed.

The Fifth Circuit Court of Appeals first held that determining whether a policy was the least restrictive means of furthering a compelling government interest, as required by RLUIPA when the policy creates a substantial burden on religious exercise, is a mixed question of law and fact requiring a de novo review an appeal. The Fifth Circuit held that TDCJf’s evidence regarding the increased expense of a policy allowing a quarter-inch beards for religious purposes was vague and the district court did not err in failing to include an analysis of increased expenses in its opinion.

The Fifth Circuit acknowledge two previous cases, DeMoss v. Crain, 636 F.3d 145 (5th Cir. 2011) and Gooden v. Crain, 353 Fed. Appx. 885 (5th Cir. 2009) where it upheld TDCJ’s beard prohibition policy in per curiam opinions. However, the DeMoss and Gooden cases were pro se in which the prisoners failed to extensively develop the record. In light of the better-developed record and high-quality representation, the Fifth Circuit held that neither DeMoss nor Gooden were controlling.

"In this case, we are presented with a substantially different record. Garner disputed TDCJf’s evidence, he was represented by counsel, thoroughly cross-examined all TDCJ witnesses, proposed different alternatives to the no-beard policy than have been previously offered, and presented expert testimony from a long-time prison administrator."

"Garner established through exhibits and testimony that the TDCJ had made no studies concerning the costs of allowing inmates to grow beards." His attorney also "elicited testimony that the security issue with allowing all inmates or some inmates to wear beards is not as serious as TDCJ asserts." His highly-qualified expert testified that decades of practice in numerous other prison systems have shown no security issues with allowing quarter-inch beards. Therefore, TDCJ failed to meet its burden of showing the no-beard policy was the least-restrictive means of furthering a compelling governmental interest. The judgment of the district court was affirmed, and the defendants paid $87,376.67 to Garner in attorney fees and costs in August 2013. See: Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013).

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