Furqan v. Ga. State Bd. of Offender Rehabilitation, Civ. A. No. C81-685A.

• Citation: 554 F. Supp. 873
• Decision Date: 30 December 1982
• Docket Number: Civ. A. No. C81-685A.
• Parties: Agin Hameen FURQAN, a/k/a Willie X. Ross, Plaintiff, v. GEORGIA STATE BOARD OF OFFENDER REHABILITATION, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

554 F. Supp. 873

Agin Hameen FURQAN, a/k/a Willie X. Ross, Plaintiff, v. GEORGIA STATE BOARD OF OFFENDER REHABILITATION, et al., Defendants.

Civ. A. No. C81-685A.

United States District Court, N.D. Georgia, Atlanta Division.

December 30, 1982.

Ralph Goldberg, Atlanta, Ga., for plaintiff.

Harrison Kohler, Charles E. Brown, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

Before the court is plaintiff's motion for a preliminary injunction to enjoin defendants from enforcing a prison regulation which would require plaintiff to shave his beard. A hearing was held on this matter on September 30, 1982, where this court announced that the hearing on the preliminary injunction shall be consolidated with the trial on the merits pursuant to Fed.R. Civ.P. 65(a)(2). This opinion contains certain relevant findings of fact pursuant to Fed.R.Civ.P. 52(a). These supplement or restate findings announced orally at the conclusion of the trial and should be read in conjunction with the oral findings.

I. FACTUAL BACKGROUND AND CONTENTIONS

Department of Offender Rehabilitation Regulation 125-2-8-.04(6) requires inmates to have periodic haircuts and disallows inmates from having long hair or any beards. Plaintiff is incarcerated at the Georgia Diagnostic and Classification Center in Jackson, Georgia, and is on death row. He was convicted for murder, armed robbery, and kidnapping. Plaintiff presently has a beard of about one-quarter of an inch, which is being allowed solely to prevent aggravation of his medical condition, entitled pseudo folliculitis barbe. Plaintiff has a hair length of about three inches and wears his hair in an Afro style.

Plaintiff alleges that he is a Sunni Muslim¹ and desires to grow a beard of about two or three inches. He contends that the growing of the beard is a practice of his Islamic faith. This belief is derived from his interpretation of three passages from the Koran and from the footnotes to an annotated edition of the Koran.² He represents that his present beard is not sufficiently free flowing to satisfy his religious beliefs.

Plaintiff, in support of his claim that the regulation violates his constitutional rights, provides a three-prong argument. First, he asserts that judicial deference has its limits in a first amendment context such that legitimate custodial objectives must be articulated in support of the regulation. Further, plaintiff states that judicial inquiry is required to determine whether these objectives could be achieved by reasonably narrower means and contends that no evidence was presented that forbidding beards is the least restrictive means. Second, plaintiff argues that the determination of when a beard is a beard has to be left to the individual. As plaintiff states, "it's up to plaintiff to draw the line and it is not for this Court to say that the line he would draw is an unreasonable one." Post Hearing Brief, at 3. Plaintiff illustrates by pointing to the policy statement of the Federal Bureau of Prisons.³ He further submits that what he now wears cannot be described as a full beard for purposes of his expression of his religious beliefs. Third, plaintiff maintains that first amendment protection is warranted to an individual's sincere religious belief irrespective of whether that belief is a tenet of the religious sect. He argues that "the fact that plaintiff might not be a most learned adherent of Islam, hardly affects his sincerity. If so, religious freedom would belong only to the adequately educated." Id.

In response, defendants argue that plaintiff has failed to show by a preponderance of the evidence that his desire to wear a beard is based on a sincere religious belief. Defendants argue that since plaintiff's desire is based on an interpretation from passages of the Koran and not on a Sunni tradition, plaintiff has failed to carry his burden of proving sincerity. In addition, defendants contend that the proper standard for evaluating the justifications for the regulation in question is a "reasonable basis" test and not a "least restrictive means" test. Further, they suggest that a balancing test, whether particular or general, is inappropriate. Finally, defendants argue that the state regulation is rationally related to three legitimate and central state interests: (i) The security of Georgia's penal institutions, inasmuch as beards and long hair can be used to conceal contraband as well as to alter appearance, (ii) discipline, and (iii) the health of inmates.

Plaintiff's claims for injunctive relief raise two issues: (a) Whether plaintiff is sincere in his religious beliefs, and (b) whether the state regulation against beards can be justified under constitutional standards. In Shabazz v. Barnauskas, 598 F.2d 345 (5th Cir.1979), in which a prison inmate claimed that a Florida prison regulation against beards infringed his right to practice his Islamic religious faith, the Fifth Circuit remanded for "a hearing inquiring into plaintiff's alleged sincerely held religious beliefs and into the state's justifications for its regulations." Id. at 347. The court distinguished earlier cases "involving religious claims so facially idiosyncratic that neither a hearing nor justification by the state for its rule was required." Id. Defendants here do not contend that plaintiff's claims that he is a Sunni Muslim and that he is required by his faith to wear a beard are facially idiosyncratic within the meaning of Shabazz.

II. SINCERITY

In order to determine whether plaintiff was sincere for the purposes of pursuing his claim that this regulation is constitutionally invalid, plaintiff must initially demonstrate that the practice of wearing a beard is deeply rooted in the religious belief of the Sunni Muslims. Although proof is not required that the growing of a beard is an absolute tenet of the Sunni Muslims, see Teterud v. Burns, 522 F.2d 357, 360 (8th Cir.1975), some quantum of proof is required to show that the practice of growing a beard is a practice protected from governmental regulation by the free exercise clause. See Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972); Welsh v. United States, 398 U.S. 333, 343, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970). Here, such a demonstration has been provided. Iman Abdul Sabree, a minister of the American Muslim Mission, testified that the growing of a beard is not an absolute requirement of the Sunni sect, but is strongly recommended. Furthermore, he testified that a believer can reasonably conclude that there may be spiritual benefits from growing a beard, thus emulating the Prophet Mohammed. Accordingly, this court finds that the growing of a beard is deeply rooted in the religious tradition of plaintiff's faith.

Furthermore, plaintiff must affirmatively establish that he was sincere in his religious beliefs. Shabazz v. Barnauskas, supra. Plaintiff testified that he reads the Koran daily, follows fundamental tenets of fasting, prayer, and chastity, and prays five times per day. Defendants argue that plaintiff is insincere since his desire to have a beard is not based on a Sunni tradition, but rather on three passages from the Koran and on footnotes to an annotated edition of the Koran. Post Hearing Brief of Defendants, at 8-9. This record, however, is void of any extrinsic evidence of patterns of inconsistent statements or actions.⁴ Furthermore, it is not the function of the court to determine religious orthodoxy. Fowler v. Rhode Island, 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953). Assuming arguendo that an objective criteria can be delineated to evaluate the reasonableness of plaintiff's interpretations of the Koran, this record fails to indicate that plaintiff's desire to grow a beard was not derived from a genuine motivation to express symbolically his "ultimate concern".⁵ Accordingly, this court finds that plaintiff is sincere in his adherence to the Sunni Muslim faith.

In summary, this court concludes that this plaintiff is sincere in his religious beliefs so as to have a personal stake in the outcome of the controversy. See Moskowitz v. Wilkinson, 432 F.Supp. 947, 949-50 (D.Conn.1977).

III. STANDARD OF REVIEW

Several courts have adopted a "least restrictive means" standard of review for evaluating prison regulations. In utilizing this standard, the central inquiry becomes whether the regulation is overly broad.⁶ For example, in Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir.1982), the Fourth Circuit held that a prison haircut regulation was unconstitutional because it restricted an inmate's right to exercise freely his sincere religious beliefs. The court determined that the proffered justifications for the regulation were either overly broad or lacking in substance, and even if the justifications were legitimate, they were not warranted because less restrictive alternatives were available. For instance, the court suggested that the prison authorities could make the inmate wear his hair in a pony tail to prevent him from using it as a mask. In addition, the court suggested that the authorities are not enjoined from searching his hair for contraband or requiring him to keep it neat and clean. Similarly, in Teterud v. Burns, supra, the Eighth Circuit affirmed the decision of a district court which held that justifications regarding an absolute prohibition against wearing long hair were either without substance or overly broad in their sweep since: (1) The interests in sanitation and safety could be adequately served by requiring those with long hair to wear hair nets; (2) those inmates whose appearance changes by growing long hair could be rephotographed for easy identification; (3) any contraband secreted in the longer hair would be found by the normal body searches; and (4) there was no reason to believe that an inmate could not keep long hair clean. Id. at 361. Again, in Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976), where a complaint by...