In a somewhat surprising prisoner free exercise decision this week, a Virginia federal district court held that the Virginia Department of Corrections violated RLUIPA and the First Amendment when it refused to recognize the Nations of Gods and Earths (NGE) as a religion and instead designated it a gang or "Security Threat Group." In Coward v. Robinson, (ED VA, Aug. 28, 2017), the court in a 47-page opinion citing what was clearly an extensive evidentiary record concluded that "there is insufficient evidence in this record to conclude that the NGE is a violent, racially supremacist gang." It went on: "Even if the Department could show that designating the NGE as a gang subject to a zero
tolerance policy serves a compelling interest, it cannot demonstrate that its policies are the least restrictive means of furthering that interest."
A number of things make this case interesting. It was initially filed in 2010. Appeals in the case (sub. nom. Coward v. Jabe) wound their way up to the 4th Circuit three separate times. In one of its opinions, the 4th Circuit held that even though it had held NGE is not a religion in an unrelated 2012 case, that decision was based on the evidence at trial, and did not mean that NGE would not found to be a religion in other cases. Finally, unlike the vast majority of prisoner cases which are argued pro se, here plaintiff in the proceedings leading to this week's decision had high power counsel. Plaintiff was represented by two lawyers from Kirkland & Ellis, one of whom had previously been a law clerk for Supreme Court Chief Justice John Roberts.
