Where a practicing Muslim detainee argued that he should not be forced to purchase his prayer oils from a commissary that sells swine and idols because Islam prohibits buying religious items from such vendors, the corrections department prevailed at trial on the Religious Land Use and Institutionalized Persons Act, or RLUIPA, claim because the single-vendor policy was the “least restrictive means” of furthering a compelling governmental interest.
Brad Faver, an inmate in the custody of the Virginia Department of Corrections, or VDOC, and a practicing Muslim, commenced this action alleging that the VDOC had denied him the ability to practice tenets of his religion in violation of the RLUIPA. Specifically, he alleged that, because of the VDOC’s single-vendor policy for its commissaries, he was required to purchase “his perfumed oils [for prayer] from Keefe Commissary,” which also happens to sell “swine and idols” to other inmates. He alleged that “Islam prohibits the acquisition of religious accoutrements from a company that sells swine and idols.”
Following a bench trial, the district court concluded that the VDOC did not violate Faver’s rights under RLUIPA. It concluded that the policy furthered the VDOC’s compelling interest of “preventing contraband, which promotes prison safety and security, and reducing the time prison personnel must devote to checking commissary shipments, which controls costs.” The court found further that the policy was “the least restrictive means to further its compelling interests.”
In this appeal, the VDOC does not dispute that its single-vendor policy substantially burdens Faver’s religious exercise, and Faver does not dispute that the policy furthers a compelling governmental interest. The parties disagree, however, on whether the policy is the “least restrictive means” of furthering the compelling governmental interest.
Faver has brought to the VDOC’s attention two alternatives to the single-vendor policy that would allow him to obtain prayer oil that complies with his religious beliefs. First, he has proposed a “centralized exception” that would create an approved list of various religious vendors from which inmates could purchase approved religious items. Second, he has proposed that the VDOC enter into a contract with an Islamic vendor, similar to the contract it entered into with its single commissary vendor Keefe.
However, as the district court found—a finding that Faver has not challenged as clear error—“a contract with another outside vendor would again force the VDOC to work with multiple vendors, resurrecting at least some of the problems the VDOC experienced before its single-vendor policy, such as burdensome searches of commissary orders and increased risk of introduction of contraband into the facilities.” VDOC testimony supports that finding.
Moreover, it is far from clear that the VDOC could simply add a single Islamic vendor. The VDOC has authorized more than 40 religious groups in its facilities, and members of each of these would be entitled to request an arrangement with another vendor should Faver prevail here.
There would also be practical problems in qualifying each vendor. The vendor would have to be willing to fulfill the requirements imposed on Keefe, including background checks, audits and specialized training. It would also have to be willing to use an ordering process for inmate purchases that would remain blind to the inmate. With each additional vendor, therefore, the VDOC would have to devote more staff time to administering the procurement of items, undermining an efficiency that the single-vendor policy provided. And with respect to adding a vendor specifically to provide prayer oil, the VDOC would face unique security and safety problems, as the district court found in a well- supported finding.
(Motz, J.): Under the RLUIPA, the government bears the burden of showing that a challenged prison policy “is the least restrictive means of furthering [a] compelling governmental interest.” To satisfy this burden, the government must “demonstrate that it considered and rejected” less restrictive alternatives proposed by the inmate. The VDOC has failed to demonstrate that it considered and rejected a less restrictive alternative to its single-vendor policy. Accordingly, I dissent from the majority’s contrary holding.
Faver v. Clarke (Lawyers Weekly No. 001-022-22, 21 pp.) (Paul V. Niemeyer, J.) (Diana Gribbon Motz, J., dissenting) Case No. 19-7634. Feb. 1, 2022. From W.D. Va. at Roanoke (Joel Christopher Hoppe, M.J.) Dallas S. LePierre for Appellant. Laura Haeberle Cahill for Appellee. 4th Cir.