“And the earth has He appointed for His creatures. Wherein are fruit and scented palm-trees, husked grain and scented fragrances.”

The Quran

An incarcerated Muslim man in Nevada will now be permitted to use scented oils during his daily prayers. The Ninth Circuit has ruled that the prisoner’s religious freedom and a federal law prevailed over the prison’s argument that its ban on the oils was necessary to maintain security and control contraband.

Writing for a unanimous three-judge panel of the United States Court of Appeal for the Ninth District, Judge Patrick J. Bumatay affirmed the ruling of the United States District Court for the District of Nevada on January 26. The appeals court agreed with the findings of both a bench trial and the District Court that found the prisoner, “a devout Muslim,” is allowed to possess up to a half-ounce of scented oil for personal use during his five-times-daily Islamic prayer rituals.

The case began when Lausteveion Delano Johnson, who had been an inmate since 2003, sued Warden Renee Baker and a dozen other employees of the Nevada Department of Corrections for denying him the right to “purify and anoint” himself with scented oil during each of his five daily prayers. Defendants argue that there was no denial because Johnson was still allowed to use scented oil once a week. They also said that he could use baby oil for all other prayer sessions. The Court was not persuaded because “that’s not what Johnson’s faith or the law requires.”

The opinion went on to explain the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”) that governs the ruling. On its website, The Department of Justice, which has jurisdiction over the act, explains that RLUIPA protects “individuals, houses of worship and other religious institutions from discrimination” in zoning and landmarking laws.” Since the prison where Johnson is held is a government institution that receives federal funds, its ban on religious oil falls under RIULPA protection. Johnson argued the ban “burdens” his exercise of religious freedom and takes away his religious liberty. The District Court agreed.

Bumatay explained that the task of the appellate court is to determine whether “the use of scented oil is really necessary to Johnson’s faith.” He quickly concluded that the prison’s request for acceptable alternatives was “foreclosed because of RLUIPA’s text and extensive case law.” He also said the ban was not “the least restrictive means of furthering its interest in institutional security.”

The opinion then clarified Johnson’s reason for needing the scented oil. The judge explained that Johnson has been a devout Muslim since 2008 and as such, the Prophet Muhammed and the Quran require five prayers a day. These prayers must be preceded by purification consisting of washing hands, face and feet and putting on clean garments. Those who pray must then “dab their wrists, neck and hair with scented, purified oil” that has been blessed by an Imam, or prayer leader.

A 2017 administration regulation of the Nevada Department of Corrections specifically prohibits what the Quran orders. It says that inmates may purchase the oils, but that they “must be kept in the chapel” thus allowing Johnson to worship in his preferred, mandated manner just once a week when group prayer sessions are held. Bumatay noted that this rule “leaves him without access to prayer oil for 34 of his 35” weekly prayers. He also pointed out the hypocrisy of a regulation that allows prisoners to keep items such as unscented baby oil; cocoa butter lotion; scented soaps, laundry detergents, and dryer sheets; as well as deodorant and various cosmetics, in their cells.

The opinion then went on to interpret relevant law and precedents. He began by explaining that RUILPA provides “extensive protection for religious liberty.” It clearly explained the requirement that “ “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the government can show that the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.

He explained that plaintiff Johnson had the initial burden of showing how the oil ban interferes with his religious freedom, which he did. The burden then shifted to the Warden, who had to demonstrate that the ban furthered a compelling government interest. He failed to do so.

Bumatay wrote that “the plain language of RIULPA” forbids the court from “evaluating the centrality of a religious practice.” They could only “scrutinize the sincerity of the prisoner’s religious beliefs. Appellants did not question the sincerity of Johnson’s beliefs. Thus, the court found that sincere beliefs “fall within the protection of RLUIPA.”

Turning to the appellant’s burden, the opinion simply said that outright bans are substantial burdens and the “availability of alternative means of practice” has no bearing on that burden. Johnson’s ability to access scented oil once a week is “severely misguided,” the opinion said. The judge then reviewed the appellant’s arguments regarding whether it used the “least restrictive means” of meeting its purported government interest.

When Johnson’s appeal was initially heard, the prison claimed the ban was justified by their “genuine interest in prison security.” The new appeal focused on “minimizing contraband,” because scented oil could mask the smell of drugs and would also pose a safety hazard by covering up the smell of fire. These reasons were dismissed.

Citing precedent, the opinion noted case law that concluded the state’s burden is “exceptionally demanding” and “prison officials cannot “justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison.” Specific evidence must be provided for the oil ban to stand. None was offered here, nor was any presented to show scented oils mask smells more completely than other permissible cleaning or cosmetic products.

With its affirmation of the District Court’s ruling, Johnson may continue to pray as his religion commands.