“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects. Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit judge Elizabeth Branch, joined by Trump judge Kevin Newsom, effectively reversed a district court ruling that a state prison policy violated a Muslim man’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by prohibiting him from growing his beard as his religion demands. The September 2021 decision was in Smith v Owens.
Lester Smith is incarcerated in a state prison in Georgia. He strongly believes that a state prison policy that requires that beards be no longer than one-half inch imposed a “substantial burden on his religious exercise” because he believes that his Muslim religion requires that he grow a longer, preferably untrimmed beard. He has been subject to disciplinary action for not following the policy, and “has been held down and forcibly shaved on more than one occasion.”
After exhausting administrative remedies, Smith filed suit under RLUIPA, which seeks to protect the free exercise rights of institutionalized persons. After a two-day trial, a Georgia federal district court issued comprehensive factual and legal conclusions, and determined that the policy violated Smith’s religious rights and that the state failed to demonstrate that it could not make a religious exception to its policy for safety or other reasons. As a partial accommodation to the state’s objections, the court ruled that the state could prohibit completely untrimmed beards but had to allow Smith to grow at least a three-inch beard as a “less restrictive alternative” to its strict rule. Both sides appealed.
Trump Eleventh Circuit judge Branch, joined by Trump judge Newsom, reversed all but a narrow portion of the district court decision. They agreed with what they claimed was a district court determination that it was “reasonable” to prohibit Smith from growing a completely untrimmed beard because it could be “unmanageable.” But they vacated the remainder of the court’s decision that ruled that the state’s strict policy violated RLUIPA and that Smith should be allowed to grow at least a three-inch beard. According to Branch, the district court ruling was “contrary” to a Supreme Court’s ruling in another prison beard policy case, because courts “should consider only” a plaintiff’s “proposed alternatives” in such RLUIPA litigation, and Smith had “never asked” for a three-inch beard policy.
Judge Beverly Martin strongly dissented from the majority’s “all-out victory” for the state. She carefully reviewed the district court’s actual findings and the record in the case, and explained that the majority had clearly mischaracterized the trial court’s determinations. Contrary to the majority’s claim that the court had found that an untrimmed beard policy would be “unmanageable”, she went on, it had actually not made “any such finding,” but simply suggested that the state’s arguments were “plausible” when it formulated the three-inch compromise. Descriptions of “what might or might not be plausible,” Martin pointedly noted, “do not constitute findings of fact.”
Instead, Martin continued, the findings and record in the case strongly support the conclusion that Smith should be able to grow an untrimmed beard as he believes his religion requires. For example, the district court found that “37 states and the federal government allow full-length beards” without experiencing the alleged problems that Georgia complained about. Even though it had every opportunity to do so, Martin wrote, the state “utterly failed” to make the “required showing” under RLUIPA that “forbidding” Smith from growing an untrimmed beard was the “least restrictive means” of furthering a “compelling governmental interest.”
Although she maintained that Smith should thus have received the full relief he requested, Martin also explained that the Trump judge majority was wrong to reject the lower court’s “compromise” three-inch alternative. There was no requirement that the district court limit itself only to a plaintiff’s “proposed alternative,” she noted, so long as it was clear to all parties, as it was in this case, that the three-inch policy was an “available alternative remedy” that was “less restrictive” than the state’s harsh edict. In fact, she pointed out, Smith had stated in a deposition that if he had to cut his beard at all, it should be no shorter than “a fistful in length” i.e. approximately three inches. “Just because neither party is happy” with the compromise, she wrote, “doesn’t necessarily mean it’s wrong.”
In ordering a return to the restrictive state policy, however, Martin concluded that Trump judges Branch and Newsom had reached a “profoundly flawed outcome” that relies on “little more than speculation offered by his jailers” about the “problems untrimmed beards could cause.” If Smith were in “almost any other facility in our country” as opposed to being “incarcerated within our Circuit,” Martin stated, Smith could comply with his religious beliefs. Instead, he has “no relief for this egregious violation of his religious rights.” The case is yet another example, as part of our fight for our courts, of the importance of the Senate confirming Biden nominees who will respect the religious and other rights of all.