PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY DAVID MORRISON, JR., 

Plaintiff-Appellee,

v.

DAVID A. GARRAGHTY, Chief

Warden; M. C. MILLARD, Associate

Warden,

Defendants-Appellants,  No. 00-6540

and

RONALD J. ANGELONE, Director,

Virginia Department of Corrections,

Defendant.

UNITED STATES OF AMERICA,

Movant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CA-97-681-3)

Argued: October 31, 2000

Decided: February 7, 2001

Before TRAXLER and KING, Circuit Judges, and

Alexander WILLIAMS, Jr., United States District Judge

for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Traxler wrote the opinion, in

which Judge King and Judge Williams joined. 
COUNSEL

ARGUED: Pamela Anne Sergeant, Assistant Attorney General,

Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for Appellants. Rebecca Kim Glenberg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION,

INC., Richmond, Virginia, for Appellee. ON BRIEF: Mark L. Earley, Attorney General, Criminal Law Division, OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellants. Richard W. Ferris, Lydia L. King, Third-year Law Student, AMERICAN

CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.,

Richmond, Virginia, for Appellee. 

OPINION

TRAXLER, Circuit Judge: 

Gary David Morrison, Jr., an inmate incarcerated at Greensville

Correctional Center ("GCC") in Virginia, filed this action under 42

U.S.C.A. § 1983 (West Supp. 2000), claiming that defendants David

A. Garraghty, warden of GCC, and M.C. Millard, assistant warden of

GCC, violated his rights under the Equal Protection Clause of the

United States Constitution by treating him differently from other

inmates based solely upon a racial classification. Specifically, Morrison alleged that defendants refused to consider his request to obtain

Native American religious items because he is not of Native American heritage. The district court enjoined defendants from refusing to

consider Morrison’s request for a religious exemption from the personal property restrictions normally applicable to all inmates solely

on the basis of Morrison’s race. We affirm. 

I.

In order to maintain prison security and order, the Virginia Department of Corrections strictly limits the possession of personal property

by prison inmates in accordance with Department Operating Procedure ("DOP") 856. However, prison administrators may grant exemptions, on a case-by-case basis, from the personal property restrictions

2 MORRISON v. GARRAGHTY
for religious personal property not specifically authorized by DOP

856. In order to evaluate a request for religious personal property,

inmates are required to specify their claimed religion, the specific

items needed, the purpose for which each item is used, why each item

is necessary, and whether each item is mandated by their religion. A

religious leader of the professed faith is contacted to verify the relevance of and need for the item, and prison officials take into account

the sincerity of the inmate’s professed beliefs and the security concerns of the prison in evaluating the specific request for an exemption.

Morrison is not a Native American Indian by birth, nor has he been

adopted by a Native American tribe. He is, however, a member of a

prisoner group known as HEART - "Heritage Examined Around Redman Traditions." HEART is not a religion. The majority of its members at GCC are not Native Americans and, consequently, do not

practice any particular tribal-based religion. Nor do HEART members

demand to participate in Native American religious ceremonies.

Rather, Morrison, like other HEART members, claims to hold beliefs

similar to those held by Native Americans practicing a tribal-based

Native American religion. For example, Morrison, like many Native

American inmates, professes belief in "the creator, mother earth, the

sacredness of all living things, that everything has a spirit and is connected." J.A. 92, 100. In other words, Morrison claims not to practice

any specific Native American tribal religion, but rather to practice

what he terms "Native American Spirituality." 

Because Morrison’s professed religious beliefs are similar to

Native American beliefs, Morrison also wishes to practice rituals similar to those practiced by Native American inmates. To do so, Morrison wishes to possess a number of Native American sacred items

which he asserts are as equally necessary for him to practice his religion as they are for Native Americans to practice their own tribalbased religions. These items include sage, cedar, sweetgrass, kinnikkinnik (sacred tobacco), other sacred herbs, shells, smoking pipes,

feathers, beads, animal parts/hides (leather), and dream catchers. 

The present controversy centers on a May 14, 1997, memorandum

issued to all members of HEART, including Morrison, which reads

as follows:

MORRISON v. GARRAGHTY 3
Effective immediately, requests for acquiring or maintaining existing articles of Native American faith will only be

considered for those inmates who are bona fide Native

Americans. Inmates requesting Native American faith items

must be able to provide some type of supportive information

to substantiate their heritage. Examples of verification may

vary but should consist of one of at least the following:

• Inmate should be on the tribal roll of a Native American

tribe (specify tribe)

• Inmate should have a blood relative who is a Native

American (specify name and relation of blood relative to

you and their tribe)

• Inmate should have a BIA card 

* * *

[O]nce you have authenticated your Native American heritage, all requests for articles of faith must be accompanied

by a description of specifically how the items are essential

to your ability to practice your religion. All items will be

considered on an individual basis based on tribal requirements, DOP/IOP 856, and institutional security concerns. 

J.A. 179 (emphasis added). The GCC policy could hardly be more

plain: a DOP 856 request "for acquiring or maintaining existing articles of Native American faith will only be considered for those

inmates who are bona fide Native Americans." J.A. 179. Once an

inmate satisfies the threshold requirement of authenticating his Native

American heritage, the request will then be considered under the typical, and universally applied, criteria for evaluating a religious exemption request. Consequently, although Morrison and other non-Native

American practitioners of Native American religious practices have

been allowed to possess at least some Native American religious

items in the past, requests for such items are now only considered if

the requesting inmate can satisfy the threshold requirement of proving

Native American heritage. 

4 MORRISON v. GARRAGHTY
Because Morrison could not prove that he is a "bona fide" Native

American, his most recent request for Native American religious

items was refused. The lack of the appropriate racial lineage was the

only reason given for the denial of Morrison’s request for a religious

exemption from the personal property restrictions; neither security

concerns nor a lack of sincerity on the part of Morrison was ever

given as a reason. Indeed, in response to his grievance, Morrison was

specifically informed that his "preference does not substitute for valid

lineage even if it is noted in your inmate record. I applaud your sincerity but I still need documentation of your heritage." J.A. 189. And,

defendant Millard admitted that sincerity of religious belief was a factor to be weighed only after Native American heritage had been

proven. 

After implementation of the GCC policy, and defendants’ denial of

Morrison’s request for a religious exemption for various Native

American spiritual items under the policy, Morrison filed suit pro se

against Ronald Angelone, the Director of the Virginia Department of

Corrections, Warden Garraghty and Assistant Warden Millard pursuant to 42 U.S.C.A. § 1983, alleging that the GCC policy of limiting

the possession of Native American religious articles to inmates of

Native American descent violated the Free Exercise Clause of the

First Amendment and the Equal Protection Clause of the Fourteenth

Amendment. Among other things, Morrison sought injunctive relief

from further application of the race-based policy to him. 

The district court granted summary judgment to defendants in part,

dismissing all claims against Angelone and dismissing the First

Amendment claim and the claim for monetary damages against Garraghty and Millard. An evidentiary hearing was then held before a

magistrate judge on Morrison’s remaining equal protection claim

against Garraghty and Millard, after which the magistrate judge recommended that "Defendants be enjoined from prohibiting Morrison

from obtaining herbs and other religious items based solely upon his

lack of membership in the Native American race." J.A. 264. The district court agreed in large part with the magistrate judge’s report and

recommendation, ultimately concluding that Morrison had established

an equal protection violation and entering a narrow injunction prohibiting defendants "from refusing Morrison a religious exemption from

the existing property restrictions, available to other inmates, solely on

MORRISON v. GARRAGHTY 5
the basis of his lack of membership in the Native American race."

J.A. 300. Taking care to point out that this was not tantamount to

ordering defendants to allow Morrison to obtain the requested property, the district court emphasized that it was "simply enjoin[ing] the

Defendants from using race as the only factor in their initial determination of whether Morrison is entitled to a religious exemption from

the existing personal property restrictions." J.A. 300-01. Defendants

Garraghty and Millard now appeal. 

II.

The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.

The Clause "does not take from the States all power of classification,"

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 271 (1979), but

"keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike," Nordlinger v. Hahn, 505

U.S. 1, 10 (1992). See also City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432, 440 (1985) (holding that the Equal Protection

Clause "is essentially a direction that all persons similarly situated

should be treated alike"). To succeed on an equal protection claim, a

plaintiff must first demonstrate that he has been treated differently

from others with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful discrimination.

Once this showing is made, the court proceeds to determine whether

the disparity in treatment can be justified under the requisite level of

scrutiny. See e.g., City of Cleburne, 473 U.S. at 439-40; In re Long

Term Admin. Segregation of Inmates Designated as Five Percenters,

174 F.3d 464, 471 (4th Cir.), cert. denied Mickle v. Moore, 528 U.S.

874 (1999); Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 818-19

(4th Cir. 1995). 

Ordinarily, a state regulation or policy will be presumed to be valid

and will be sustained if the classification is rationally related to a

legitimate state interest. See City of Cleburne, 473 U.S. at 440. When

the state classifies by race, alienage, or national origin, however, special concerns are implicated. See id. Such factors are "seldom relevant

to the achievement of any legitimate state interest" and, therefore,

"are deemed to reflect prejudice and antipathy — a view that those

6 MORRISON v. GARRAGHTY
in the burdened class are not as worthy or deserving as others." Id.;

see Hirabayashi v. United States, 320 U.S. 81, 100 (1943)

("Distinctions between citizens solely because of their ancestry are by

their very nature odious to a free people whose institutions are

founded upon the doctrine of equality."). Thus, outside of the prison

environment, classifications which are based upon these factors, or

which impinge upon fundamental rights protected by the Constitution,

are subjected to stricter scrutiny, sustained only if they are narrowly

tailored to serve a compelling state interest. See City of Cleburne, 473

U.S. at 440; see also Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 227 (1995) (declining to make an exception for so-called "benign" racial classifications; "all racial classifications, imposed by

whatever federal, state, or local governmental actor, must be analyzed

by a reviewing court under strict scrutiny"). 

Morrison contends that we must also apply strict scrutiny review

to defendants’ race-based prison policy. However, it has long been

recognized that, within the prison environment, courts grapple with

yet another set of special considerations — those dictated by the

needs and problems inherent in a penitentiary. The Equal Protection

Clause indisputably protects prisoners from arbitrary racial discrimination, see Turner v. Safley, 482 U.S. 78, 84 (1987) (holding that

"[p]rison walls do not form a barrier separating prison inmates from

the protections of the Constitution"), but our review of prison policies

and actions is tempered by the recognition that "[l]awful incarceration

brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying

our penal system," O’Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (internal quotation marks omitted) (alteration in original).

Because "courts are ill equipped to deal with the increasingly urgent

problems of prison administration and reform," Turner, 482 U.S. at

84 (internal quotation marks omitted), the Supreme Court has held a

"prison regulation [that] impinges on inmates’ constitutional rights

. . . is valid if it is reasonably related to legitimate penological interests" and not an exaggerated response to a particular concern, id. at

89. This lesser standard of scrutiny, the Court held, is necessary to

ensure that prison administrators and not courts make difficult decisions concerning institutional operations: 

Subjecting the day-to-day judgments of prison officials to an

inflexible strict scrutiny analysis would seriously hamper

MORRISON v. GARRAGHTY 7
their ability to anticipate security problems and to adopt

innovative solutions to the intractable problems of prison

administration. The rule would also distort the decisionmaking process, for every administrative judgment would be

subject to the possibility that some court somewhere would

conclude that it had a less restrictive way of solving the

problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every

administrative problem, thereby unnecessarily perpetuat[-

ing] the involvement of the federal courts in affairs of prison

administration. 

Id. at 89 (internal quotation marks omitted). This more deferential

standard applies even when the alleged infringed constitutional right

would otherwise warrant higher scrutiny, cf. Washington v. Harper,

494 U.S. 210, 223 (1990); O’Lone, 482 U.S. at 349, such as when an

inmate claims that his constitutional right to equal protection of the

laws has been violated by the prison’s implementation of a racial classification. 

Accordingly, while a prisoner does not forfeit his constitutional

right to equal protection by the fact he has been convicted of a crime

and imprisoned, prisoner claims under the equal protection clause,

including those based upon a racial classification, must still be analyzed in light of the special security and management concerns in the

prison system. See e.g., Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 136 (1977) ("There is nothing in the Constitution which requires prison officials to treat all inmate groups alike

where differentiation is necessary to avoid an imminent threat of institutional disruption or violence."); In re Long Term, 174 F.3d at 471

(same); see also Cruz v. Beto, 405 U.S. 319, 321 (1972) ("[R]acial

segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for the necessities of prison security and

discipline." (internal quotation marks omitted)); Lee v. Washington,

390 U.S. 333, 334 (1968) (Black, J., concurring) ("[P]rison authorities

have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security,

discipline, and good order in prisons and jails."). An inmate’s constitutional right to be protected from racial discrimination may be subject to restrictions that are reasonably related to a legitimate

8 MORRISON v. GARRAGHTY
penological interest. See In re Long Term, 174 F.3d at 468 ("Even

assuming that analogous action outside the prison context would violate the Constitution, ‘when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related

to legitimate penological interests.’") (quoting Turner, 482 U.S. at

89). 

In determining whether a prison policy passes constitutional muster, we consider four factors: (1) whether there is a valid, rational connection between the policy and the penological interest; (2) whether

an alternative means of exercising the right remains open to prison

inmates; (3) the impact accommodation of the asserted right will have

on guards, other inmates, and the allocation of prison resources; and

(4) the absence of ready alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. See

Turner, 482 U.S. at 89-90. A policy will not be sustained "where the

logical connection between the [policy] and the asserted goal is so

remote as to render the policy arbitrary or irrational." Id. Nor do we

abandon our regard for the inherent concerns which surround a racebased classification. The perniciousness of a race-based classification

is not lessened simply because we afford more leeway to prison officials in the operation of their facilities, and legitimate penological

interests which will be served by race-based classifications will surely

be few. 

III.

At the outset, we address defendants’ assertion that because the

district court granted summary judgment to them on Morrison’s Free

Exercise claim brought under the First Amendment, they should necessarily prevail on Morrison’s Equal Protection claim brought under

the Fourteenth Amendment. We disagree. 

The Free Exercise Clause of the First Amendment forbids the

adoption of laws designed to suppress religious beliefs or practices.

See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 523 (1993). Its protections, including its directive that no

law shall prohibit the free exercise of religion, extends to the prison

environment. See O’Lone, 482 U.S. at 348; Hines v. South Carolina

Dep’t of Corrections, 148 F.3d 353, 357 (4th Cir. 1998); Ali v. Dixon,

MORRISON v. GARRAGHTY 9
912 F.2d 86, 88-89 (4th Cir. 1990). At the summary judgment stage,

the district court found that Morrison had sufficiently alleged that

"Native American Spirituality" was a religion protected by the First

Amendment and that he had come forward with sufficient evidence

to preclude summary judgment on the issue of whether his beliefs

were sincerely held. However, the district court dismissed Morrison’s

free exercise claim because Morrison failed to identify a particular

rite or practice which was foreclosed, or substantially burdened by,

defendants’ denial of his request for Native American religious items.

Morrison has not appealed this adverse ruling. 

Morrison’s equal protection claim, in contrast, centers not on

whether Morrison’s religious exercise rights were violated by defendants’ denial of his request. Rather, Morrison’s equal protection claim

rests upon defendants’ decision to condition the mere consideration

of his request for Native American religious items upon proof that he

is of Native American race, without regard to whether he is sincere

in his religious beliefs or whether the requested items pose a security

risk for the prison. In other words, Morrison pursues not a constitutional right to obtain the religious items, but a constitutional right to

be treated the same as Native American inmates requesting the same

religious articles. The district court’s injunction recognizes this distinction and narrowly tailors the injunction to the race-based conduct.

Defendants are not required to allow Morrison to obtain the religious

articles he has requested or which he may request in the future.

Rather, the district court only enjoined the defendants from using race

as the sole factor in their determination of whether Morrison would

be granted an exemption from the personal property restrictions. 

Also, Morrison need not prove that he would ultimately receive the

items in order to obtain an injunction from further application of the

race-based aspect of the policy to him. See Texas v. Lesage, 120 S. Ct.

467, 468 (1999). "[A] plaintiff who challenges an ongoing raceconscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race

were not considered." Id. Rather, the relevant inquiry is whether there

has been an "‘inability to compete on an equal footing.’" Id. (quoting

Northeastern Fla. Chapter of the Associated Gen. Contractors v. City

of Jacksonville, 508 U.S. 656, 666 (1993)); see also Price v. City of

Charlotte, 93 F.3d 1241, 1247-48 (4th Cir. 1996). Thus, while Morri10 MORRISON v. GARRAGHTY
son can no longer pursue the claim that he is entitled to possess the

requested religious items under the free exercise clause of the First

Amendment, his equal protection claim, seeking to have his request

for religious items considered under the same criteria applied to the

requests of Native American inmates, survives. 

IV.

We now turn to the question of whether the GCC policy, which

conditions consideration of Morrison’s receipt of Native American

spiritual articles upon proof that he is of Native American race, violates Morrison’s right to equal protection of the laws under the United

States Constitution. We conclude that it does. 

A.

Our first inquiry is whether Morrison is being treated differently

from others similarly situated to him; i.e., whether he is being intentionally or purposefully discriminated against on the basis of his race

or national origin. If so, we must then determine whether the disparity

in treatment based upon Morrison’s race is justified by legitimate

penological interests. See e.g., City of Cleburne, 473 U.S. at 439-40;

In re Long Term, 174 F.3d at 471. 

1.

We agree with the district court’s conclusion that Morrison has

demonstrated that, under the GCC policy, he is treated differently

from others with whom he is similarly situated and that this unequal

treatment is the result of intentional or purposeful discrimination on

the basis of his race. The language of the May 14, 1997 policy

adopted by the GCC administrators draws a rather explicit racial distinction. GCC inmates seeking an exemption from the personal property restrictions to possess Native American spiritual items must be

"bona fide Native Americans," able to document their "heritage." J.A.

179. The requirement is a necessary predicate to further consideration

of the request for an exemption; no requests will be considered until

the inmate "ha[s] authenticated [his] Native American heritage." J.A.

179. 

MORRISON v. GARRAGHTY 11
And, it seems the policy was just so applied in Morrison’s case.

Morrison was not refused a religious exemption because he failed to

meet the requirements applicable to all inmates requesting a religious

exemption to the personal property restrictions. Rather, Morrison was

denied an exemption, and was told that he was being denied an

exemption, because he did not prove Native American heritage. The

district court’s findings in this regard enjoy overwhelming support in

the record. See Pullman-Standard v. Swint, 456 U.S. 273, 287-88

(1982) (holding that "intent to discriminate on account of race . . . is

a pure question of fact, subject to Rule 52(a)’s clearly-erroneous standard"). Defendant Millard told Morrison that he could not obtain the

spiritual items due to his failure to prove his Native American heritage. Indeed, in response to Morrison’s grievance following the denial

of his request, Morrison was advised that:

Documentation of your Indian heritage was requested via

memorandum in May but you have not submitted any info

to me as of today’s date. Your preference does not substitute

for valid lineage even if it is noted in your inmate record.

I applaud your sincerity but I still need documentation of

your heritage. 

J.A. 189. 

Assuming that Morrison is a sincere practitioner of a Native American Spirituality religion, which in turn calls for similar religious personal property as tribal-based Native American religions, Morrison is

similarly situated to Native American inmates who also request an

exemption from the personal property restrictions for non-conforming

Native American religious items. Because Morrison is not of Native

American heritage, however, the GCC policy prohibits equal consideration of his request for a religious exemption. Morrison was denied

the right to have his request considered on an equal footing with that

of his Native American counterparts, and this differential treatment is

the product of intentional and purposeful discrimination based on

race. 

2.

Defendants assert, in a rather circular fashion, that Morrison was

not discriminated against on the basis of his race because DOP 856

12 MORRISON v. GARRAGHTY
is a neutral, legitimate policy designed to serve safety and security

concerns and that Morrison’s request was denied not because he is a

non-Native American but because he failed to prove that he sincerely

practices a Native American religion. 

We have little doubt that DOP 856, which limits the possession of

personal property by prison inmates, is designed to serve legitimate

safety and security concerns of the Virginia prison system. But,

defendants’ argument obviously misses the point. Morrison does not

dispute that DOP 856 applies to all inmates equally or that it serves

such worthy goals; neither DOP 856, nor the typical procedure

employed by prison administrators for evaluating inmate requests for

religious items, is challenged in this appeal. Morrison challenges only

the GCC prison administrators’ policy of conditioning consideration

of a request for permission to possess Native American spiritual items

upon the inmate’s proof of Native American heritage. It is this

facially discriminatory policy adopted by the GCC administrators and

its application to Morrison’s request for Native American religious

items in this case, not DOP 856 itself, that is the subject of Morrison’s

challenge under the Equal Protection Clause. 

We are equally unpersuaded by defendants’ claim that proof of heritage was merely a "useful tool" to assist the prison administrators to

determine, as part of the DOP 856 exemption inquiry, the sincerity of

Morrison’s religious beliefs. Morrison’s request was not denied

because he lacked a sincere belief in the tenets of Native American

theology, but because he was of the wrong, racial "lineage." J.A. 189.

Indeed, the sincerity of Morrison’s beliefs in the tenets of Native

American spirituality was at least ignored or presumed, if not truly

"applaud[ed]" as indicated in the response to Morrison’s grievance.

J.A. 189. In truth, defendants never evaluated the sincerity of Morrison’s beliefs because he failed to satisfy the threshold, racial requirement imposed by the defendants upon such a consideration. 

Nor are we persuaded by the similar claim that Morrison’s request

was not denied because he was of the wrong race, but rather because

he failed to satisfy the requirement, imposed upon all, that the inmate

specify his claimed religion, what items he needed, and why the items

were needed. This assertion rests upon the position that there is no

"Native American" religion per se, or Native American beliefs or rituMORRISON v. GARRAGHTY 13
als beyond those controlled by individual Native American tribes.

Because only persons of Native American heritage, race, or tribal

membership can embrace a Native American theology, so the argument goes, proof of one’s tribal membership or possession of a BIA

card is merely the means by which to specify or prove one’s religion

and the sincerity of one’s belief in that religion. 

Like the district court, we cannot endorse the proposition that an

inmate’s sincerity of religious beliefs in Native American spirituality

can be defined solely by his race or heritage. In determining whether

a particular professed faith is a religion, for First Amendment purposes, courts are to consider whether the faith "occupies a place in the

lives of its members ‘parallel to that filled by the orthodox belief in

God’ in religions more widely accepted in the United States." Dettmer

v. Landon, 799 F.2d 929, 931 (4th Cir. 1986) (quoting United States

v. Seeger, 380 U.S. 163, 166 (1964)). "[R]eligious beliefs need not be

acceptable, logical, consistent, or comprehensible to others in order to

merit First Amendment protection." Thomas v. Review Bd., 450 U.S.

707, 714 (1981) (holding that state could not deny unemployment

compensation benefits to a Jehovah’s Witness who terminated his

employment because he believed his work in the production of a

weapons-related product violated the principles of his religion); Dettmer, 799 F.2d at 932 (holding that prison officials could not deny religious articles to Wiccans based on the officials’ conception of what

constitutes a religion). Nor must religious observances be uniform to

merit First Amendment protection. See Dettmer, 799 F.2d at 932. Differing beliefs and practices are not uncommon among followers of a

particular creed, see Thomas, 450 U.S. at 715, and "it is not within

the judicial function and judicial competence to inquire whether the

petitioner or [another practitioner] more correctly perceive[s] the

commands of their common faith," id. at 716. In sum, "[c]ourts are

not arbiters of scriptural interpretation." Id.; see also Dettmer, 799

F.2d at 932. 

The district court correctly recognized that defendants had "failed

to present any convincing evidence for the broad proposition that race

is a prerequisite for a sincere belief in Native American theology."

J.A. 290. Native Americans themselves practice a diverse set of

beliefs and practices depending upon their individual beliefs and

tribal affiliations, but there has been no claim that the tribal-based

14 MORRISON v. GARRAGHTY
religions practiced by "bona fide" Native Americans are not recognized religions. While Morrison admittedly does not practice a specific tribe-based Native American religion and does not seek

membership into any particular Native American tribe, he does profess to practice a Native American spirituality that combines religious

elements from a variety of tribal practices. His beliefs, and religious

practices, have no race-based requirement. 

In sum, we agree with the district court’s conclusion that prison

officials cannot measure the sincerity of Morrison’s religious belief

in Native American Spirituality solely by his racial make-up or the

lack of his tribal membership. See Combs v. Corrections Corp. of

America, 977 F. Supp. 799, 802 (W.D. La. 1997) (enjoining prison

officials from restricting the practice of the Native American Religion

to those prisoners of Native American ancestry as violative of the

First Amendment: "[t]he policy is akin to a requirement that practicing Catholics prove an Italian ancestry, or that Muslims trace their

roots to Mohammed"). To the extent Morrison was deprived of the

right to obtain Native American religious items because he failed to

explain his religion, Morrison’s failure was caused by a policy which

equates sincere belief in traditionally Native American religious

beliefs with Native American blood. And, despite defendants’

attempts to characterize the denial of Morrison’s request as one

grounded upon a lack of sincere belief in Native American tenets, the

district court correctly recognized that defendants did not deny his

request on this basis. Consequently, we are not presented with the

issue of whether Morrison is a sincere practitioner of a Native American faith. Assuming, as we must for present purposes, that Morrison

is sincere in his beliefs, he has been purposefully and intentionally

treated differently from Native American inmates who sincerely possess beliefs virtually identical to those held by Morrison. 

B.

Having determined that Morrison was subjected to intentional discrimination, we turn to the issue of whether the disparity in treatment

based upon Morrison’s race was justified by a legitimate penological

interest. We conclude that it was not. 

Defendants’ primary contention is that the district court erred in

enjoining them from implementing the policy because the items

MORRISON v. GARRAGHTY 15
requested by Morrison and the other HEART members are per se

dangerous in the prison environment and, therefore, that the prohibition of these items is rationally related to the legitimate penological

interests of prison safety and security. The district court found that the

items requested were indeed dangerous in nature. By way of example,

sacred herbs have a pungent odor which can mask the smell of burning marijuana; marijuana can be hidden within the sacred herbs making it difficult to detect; security keys can be hidden in medicine

pouches; abalone shells, animal claws, and deer hooves can be broken

or sharpened and used as a weapon or to facilitate an escape; leather

and furry backpacks can harbor vermin and be a health hazard; deer

hide can be put over razor wire to facilitate an escape; dream catchers,

medicine bags, and furry backpacks can be used to hide contraband

and weapons; and feathers can be used to jam locking devices on

doors, burned to mask other odors, and fashioned into blow darts.

Defendants successfully pointed to some such instances of inmate

abuse of religious items and argued that the potential dangers were

compounded by the HEART members’ refusal to allow security

searches of their items; by the limited time, space and staffing available to deal with non-Native American requests to practice rituals

with these items; and by the fact that the items are susceptible to

being stolen by other inmates who can misuse them. Defendants also

asserted a concern that some inmates have pretended to be Native

American as a guise to strong-arm and rob inmates and that Native

American inmates have been offended by the pretension of Native

American status, engendering resentment and the potential for conflict and disruption. 

Without question, prison safety and security is a legitimate, indeed

compelling, penological interest. Cf. In re Long Term, 174 F.3d at

469; Hines, 148 F.3d at 358. Such matters of security are precisely the

type of day-to-day considerations that require prison authorities to

take actions which call for the lesser standard of scrutiny applicable

to regulations and policies implemented in the prison environment.

See Turner, 482 U.S. at 89-90. And, defendants have made a striking

case for prohibiting inmate use of the requested Native American religious items due to safety and security concerns. Defendants have

failed, however, to demonstrate that the race-based GCC policy is reasonably related to this legitimate penological interest. See Turner, 482

U.S. at 89-90 ("[A] regulation cannot be sustained where the logical

16 MORRISON v. GARRAGHTY
connection between the regulation and the asserted goal is so remote

as to render the policy arbitrary or irrational."). 

As an initial premise, we note that while defendants perhaps could

have prohibited inmate possession of the requested items because

they threaten prison safety and security, they have chosen not to do

so. Instead, defendants have adopted a policy which allows consideration of requests for religious exemptions from the personal property

restrictions submitted by Native American inmates for such items, but

which unequivocally denies non-Native Americans, such as Morrison,

the same consideration solely on the basis of their lack of membership

in the Native American race. Consequently, the issue before us is not

whether all inmates, or any particular inmate, can be denied possession of these potentially dangerous items based upon safety and security concerns. Rather, the issue before us is whether defendants’ racebased policy of denying possession of these items is rationally related

to the goal of prison safety and security. Like the district court, we

are satisfied that it is not. 

First, as found by the district court, defendants have failed to demonstrate that the requested spiritual items are any less dangerous in

the hands of a Native American inmate, as opposed to a non-Native

American inmate who sincerely wishes to practice Native American

spirituality. In fact, at least one Native American inmate, who was

also a member of HEART, was allowed to possess these dangerous

items in the past despite an extensive history of institutional infractions, whereas Morrison was denied the right to possess them despite

the fact that he had not previously abused the privilege of doing so.

Nor was there any evidence that one group, but not the other, has

abused or misused such items in the past. 

Second, defendants have failed to substantiate the claim that the

policy promotes security because it appeases Native Americans who

take offense to white inmates practicing their faith. As found by the

district court, there was no evidence that any Native American

inmates at GCC objected to the religious practices of HEART members and, on the contrary, the only Native American prisoner who testified stated that Native Americans at GCC encourage white inmates

in their spiritual pursuits and are not offended by non-Native Americans who hold a sincere belief in Native American theology. At best,

MORRISON v. GARRAGHTY 17
the evidence demonstrated that only a few Native Americans at

another institution were offended by white inmates practicing Native

American rituals.*

Finally, we appreciate defendants’ desire to accommodate the religious requests of Native American inmates who are sincerely practicing their respective tribal religions, despite the dangerous nature of

the items requested. And, we recognize that in light of the limited

time, space, and staffing available in the prison environment, the

GCC policy would serve to limit the total number of dangerous articles and, thereby, render their presence in the prison environment a

controllable factor. However, given defendants’ failure to substantiate

a claim that the sincerity of one’s belief in Native American theology

is determined by the color of his skin or the origin of his birth, and

concomitant failure to articulate a rational connection between an

inmate’s race and his propensity to misuse the items requested, it is

patently impermissible to control the number of dangerous items by

instituting a policy which arbitrarily makes race or heritage the

threshold requirement for according an individual inmate the privilege

of obtaining them. 

V.

In conclusion, we hold that the district court has appropriately

entered a narrow judgment, enjoining defendants "from refusing Morrison a religious exemption from existing property restrictions solely

on the basis of his lack of membership in the Native American race."

J.A. 283 (emphasis added); see 18 U.S.C.A. § 3626(a)(1)(A) (West

2000) ("Prospective relief in any civil action with respect to prison

conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs."). Like

*We need not consider defendants’ assertion that the district court

failed to properly consider the district court ruling in Hernandez v. Angelone, No. 97-1329 (E.D. Va. Aug. 14, 1999), which it characterizes as

contrary to the district court’s decision in this case. The Hernandez decision, and other similar district court cases, see e.g., Mitchell v. Angelone,

82 F.Supp.2d 485 (E.D. Va. 1999), are currently on appeal to this court.

We think it prudent to leave the ultimate determinations in those cases

to their respective appeals. 

18 MORRISON v. GARRAGHTY
the district court, we reiterate that defendants are not required by our

decision to allow Morrison or any other inmate to possess the

requested Native American items. We likewise offer no opinion as to

whether Morrison sincerely holds the beliefs he espouses; that is a

factual matter left for resolution by the prison administrators in the

first instance when exercising their discretion in evaluating such

requests. Cf. Thomas, 450 U.S. at 716 (noting, in First Amendment

context, we inquire as to whether there is an honest religious conviction at issue). 

If the number of inmates possessing a sincere, religious belief in

the Native American religious practices and requesting the items at

issue becomes so great as to render their presence in the prison environment uncontrollable or infeasible from a security standpoint, a different case may be presented. For present purposes, it is sufficient to

hold that defendants’ policy of measuring the sincerity of an inmate’s

belief in a Native American theology by whether he is of Native

American blood, and conditioning the receipt of a benefit on that

racial basis, runs afoul of the Equal Protection Clause of the Fourteenth Amendment. 

VI.

For the foregoing reasons, the decision of the district court is therefore affirmed.

AFFIRMED

MORRISON v. GARRAGHTY 19