by Matt Clarke

On February 1, 2022, the U.S. Court of Appeals for the Fourth Circuit ruled that the Virginia Department of Corrections (DOC) did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., by requiring a Muslim prisoner to purchase prayer oil though the prison commissary’s sole vendor, a firm which also sold pork products and religious items for practitioners of other religions.

The prisoner, Brad Faver, was held at Augusta Correctional Center, where he alleged that his religious practice was unduly burdened by DOC’s refusal to allow him to “grow a beard at least a fist’s length” or to provide him “a diet containing meat that is ‘ritually slaughtered in the name of Allah,’” according to a complaint he later filed. Moreover, while DOC allowed him to “apply perfumed oils for prayer,” the prison’s sole commissary vendor, Keefe Commissary, also sold items for other religions that he considered “idols” as well as food that Muslims shun, leaving the firm’s prayer oils “tainted in the eyes of Allah,” he said.

In 2016, Faver filed suit pro se in federal court for the Western District of Virginia against DOC Director Harold Clarke, who accepted the sincerity of Faver’s religious beliefs and agreed that requiring him to buy prayer oil from Keefe was a substantial burden on the exercise of his religion. However, DOC maintained this was the least-restrictive means to further a compelling governmental interest in preventing the introduction of contraband into the prison.

During trial, Clarke explained that before instituting the single-vendor commissary policy in 2013, DOC had permitted prisoners to order directly from any of multiple vendors, resulting in multiple instances of contraband smuggled with the items or their packing materials, requiring additional staff and expense to inspect the orders. Clarke also said that some of the prayer oil ordered under the old policy was tested and found to be “extremely flammable,” posing a safety hazard and potential for use as a weapon. There was also concern that liquids such as prayer oils “could be caustic or poisonous or could be drugs.”

The district court agreed with DOC, ruling on September 29, 2017, that Faver’s RLUIPA rights had not been violated except possibly on his diet claim, though it allowed his beard and prayer oil claims also to proceed. See: Faver v. Clarke, 2017 U.S. Dist. LEXIS 160857 (W.D. Va.). Nearly two years later, on September 30, 2019, the district court satisfied itself “that Clarke did not violate Faver’s rights under RLUIPA and that Faver is not entitled to relief.” See: Faver v. Clarke, 2019 U.S. Dist. LEXIS 169353 (W.D. Va.).

Aided by attorneys Dallas S. LePierre and Mario B. Williams of HDR LLC in Atlanta, Faver appealed. At the Fourth Circuit, the prisoner did not dispute that the single-vendor policy furthered a compelling governmental interest. But he insisted it was not the least restrictive means of doing so. Instead he proposed two alternatives: The first would involve creating a list of pre-approved religious items that prisoners could order from pre-approved vendors. Or DOC could simply add a new vendor acceptable to Faver’s Islamic beliefs.

The Court wasn’t buying this, though, saying that the addition of an Islamic vendor would open the door for VDOC to face a similar requirement from prisoners practicing any of 40 faiths it currently recognized. Thus, either proposed alternative “would again force [DOC] to work with multiple vendors, resurrecting at least some of the problems [DOC] experienced before its single-vendor policy, such as burdensome searches of commissary orders and increased risk of introduction of contraband into the facilities.”

In her dissent, Judge Diana Gribbon Motz said that after admitting it was burdening Faver’s religious exercise, DOC was required to show it had considered less burdensome alternatives, but had failed to do more than present an argument that the U.S. Supreme Court expressly rejected in Holt v. Hobbs, 574 U.S. 352 (2015), which Motz called “but another formulation of the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.’”See: Faver v. Clarke, 24 F.4th 954 (4th Cir. 2022).

Plaintiffs then asked the full Fourth Circuit for a rehearing en banc, but that request was denied on March 1, 2022. See: Faver v. Clarke, 2022 U.S. App. LEXIS 5406 (4th Cir.).

They then filed a petition with the U.S. Supreme Court on June 30, 2022, for a writ of certiorari to hear the case. PLN will update details of that petition as they are available. See: Faver v. Clarke, U.S., Docket No. 22-14. 

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