Coward v. Robinson (276 F. Supp. 3d 544, 2017)

MEMORANDUM OPINION

Leonie M, Brinkema, United States District Judge

Plaintiff Kalvin Donnell Coward (“Coward” or “plaintiff’), an inmate of the Virginia Department of Corrections, alleges that the defendants, A; David Robinson, Chief of Corrections Operations, and Harold W. Clarke, Director, in their capacities as employees of the Department (the defendants will be referred to collectively as “VDOC” or “the Department”), unlawfully impeded his religious exercise as an adherent of the Nation's of Gods and Earths (“NGE” or “the Nation”), in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment by refusing to recognize the NGE as a religion and instead designating it a gang subject to the Department’s zero tolerance policy. Specifically, plaintiff alleges four violations of RLUIPA based on the VDOC’s 1) refusal to recognize the NGE as a religion pursuant to his December 15, 2008 request for recognition and failure to follow proper procedures when reviewing that request; 2) failure to recognize the NGE or follow proper-procedures in response to plaintiffs March 1, 2009 request for recognition; 3) confiscation of religious material entitled “The Harlem Six” from his mail on June 25, 2009; and 4) confiscation of “Five Per-center literature” from his mail on July 16, 2009. Plaintiff also asserts a fifth claim for theological discrimination in violation of the Free Exercise Clause of the First Amendment. [Dkt. No. 7-1]. Plaintiff asks the Court to enjoin the VDOC from enforcing policies that prevent him from practicing the activities that are central to his beliefs as a member of the NGE and order that the NGE be afforded the privileges enjoyed by other religions recognized by the Department. Id. at 30. For the reasons that follow, the Court finds that the VDOC’s policies violate Coward’s rights under both RLUIPA and the Free Exercise Clause of the First Amendment.

1. PROCEDURAL HISTORY

Plaintiff filed his initial complaint pro se and .litigated the case pro se for several years during which the complaint was amended, multiple motions were filed, and several dispositive motions were granted. Plaintiff successfully appealed the disposi-tive rulings, resulting in three remands. After the third .remand, the Court vacated its previous order granting defendants’ Motion for Summary Judgment and ordered defendants to file a renewed Motion for Summary Judgment within thirty days. [Dkt. No. 130], Defendants were granted multiple extensions of time based on the representation that the parties were attempting to settle this litigation. [Dkt. Nos. 138, 140, 149, and 151]. During his third appeal, plaintiff secured pro bono counsel who have continued to represent him before this Court. Ultimately the parties were unable to reach a resolution, and on January 3, 2017 the Court issued a scheduling order giving the parties four months to complete any additional discovery. [Dkt. No. 154], Following the close of discovery, neither party sought summary judgment and the Court held a bench trial on July 13 and 14, 2017. At trial, plaintiff offered testimony from the following witnesses: himself; Rick Panayoty, a twenty-two-year adherent of the NGE and former inmate who was a party in a RLUIPA lawsuit against the New York Department of Corrections regarding recognition of the NGE and who has since been released and is now a senior in college with plans to attend law school; Donald Palmer, a managing editor of the Five Percenter newspaper and cofounder of the National Office of Cultural Affairs for the NGE; Michael Muhammad Knight, Ph.D., a professor of religious studies who has written two books about the NGE; defendant Clarke, the most senior official at the VDOC; and Martin Horn, the former head of the Pennsylvania and New York City departments of correction. Defendants called Reverend John Randall Myers, a religious consultant and private chaplaincy services provider for the Department; Christopher M. Burke, the Central Regional Coordinator for the Operations and Logistics Unit of the VDOC; and defendant. Robinson, the second-in-command at the VDOC.

II. FINDINGS OF FACT

A. Background on the NGE

Through the testimony of the plaintiff, NGE adhérents Panayoty and’ Palmer, plaintiffs expert Professor Knight, and plaintiffs exhibits, the following facts about plaintiffs beliefs and the NGE were established:

Plaintiff, who has been incarcerated for twenty-three years, has been an adherent of the NGE, also known as the Five Percent Nation, since 1985. Tr. at 7:21-25, 47:19-48:5. The NGE originated within the Nation of Islam (“NOI”) and ultimately became a distinct tradition. PX 157 at 7. The NOI was founded by Fard Muhammad in Detroit, Michigan in the 1980s and teaches that Muhammad was god incarnate. Tr. at 106:2-20. The NGE’s founder, Clarence 13X, originally was an NOI adherent, but, in the 1960s, he “challenged’ the core [NOI] tenet that God had been manifested in Fard Muhammad,” and he began teaching the NOI’s catechism, known as the 120 Degrees or the Supreme Wisdom Lessons to youths on street corners and basketball courts in New York. Tr. at 220:19-24; PX 157 at 8. He ultimately founded the Allah Youth Center in Harlem (“Mecca,” in NGE parlance),' which remains operational to this day. Id. One of Clarence 13X’s core beliefs was that “if you want to change anything then you should teach children” because they do not know anything about hate and racism unless they are exposed to it by adults. Tr. at 107:7-24; PX 157 at 8.

Today, NGE adherents come from all walks of life and include law enforcement officers, business people, teachers, professors,'and people in the medical field. Tr.' at 86:11-18. These adherents believe that every black man is his own god, PX 157 at 9, and should learn to live righteously through study and self-mastery, Tr. at 11:2-7. In the NGE community, black men are referred to as “Allah” or “God” and women are referred to as “Earth.” PX 157 at 9. As one scholar described it, a black man “is a God in the sense of being a Creator of his own destiny.” Id. By characterizing black men as gods, NGE adherents argue that they, like members of other religions, “have a picture of God that reflects their identity.” PX 73 at 3.

- The 120 Degrees, which is central to both the NGE and the NOI, teaches that “five percent of society [is] enlightened and reject[s] the belief'in a false, unseen deity, instead recognizing the truth of God as the Black Man.” PX 157 at 8. Ten percent of people are “the rich[,] the slave makers of the poor, who teach lies to the' poor—to believe that the almighty, true, and living god is a spook and cannot be seen by the physical eye.” PX 9 at 27. The ten percent are often referred to as devils and the 120 Degrees teaches that a devil “make[s] slaves out of the 85% by keeping them worshiping something he knows they cannot see (invisible) and he lives and makes himself rich from their labor.” PX 9 at 25. By contrast, the five percent are tasked with teaching “freedom, justice, and equality to all the human family of the planet earth,” also known as “civilizing” people and making them “righteous.” Id. at 27. Based on these -shared teachings, members of both the NOI and the NGE may identify as Five Percenters, although the label is more commonly associated with NGE adherents. Tr. at 261:13-25.

Although the 120 Degrees includes some problematic statements, such as, “the colored man or the Caucasian is the devil” and “all Muslims will murder the devil, because they know he is a snake and, also, if he be allowed to live, he would sting someone else. Each Muslim is required to bring four devils,” id. at 18, 22, plaintiff addressed this potentially incendiary language by offering evidence that, according to NGE teachings, the four devils that NGE adherents -strive to “kill” are lust, greed, envy, and hate, Tr. at 20:5-9. More broadly, the 120 Degrees represents “a project in self-mastery” in which devils simply “represent negative personality traits.” Tr. at 256:14-23. The devil is usually personified as a white man because during the Atlantic slave trade and the history of the United States, white men worked to “keep the black man down or keep the black man subjugated,” Tr. at 24:3-17; however, a black person can also be a devil and Clarence 13X emphasized that “[t]he worst devil is a black devil.” PX 75 at 11: Thus, being a devil is ultimately “more about the mentality than it is about the skin color,” Tr, at 26:2-8. In keeping with this belief, white people can be members of the Nation. M, Indeed, although Elijah Muhammad, an early leader of the NOI, taught that white people could know righteousness but could not be righteous, Clarence 13X adopted a white disciple and pronounced him a “righteous man.” Id. at 252:20-253:2.

Plaintiff explained that, for NGE adherents, their belief about the pursuit of righteousness and self-mastery through the destruction of negative personality traits speaks to “the ultimate questions of human existence” and their cosmology “teaches a continued existence beyond this dense physical world, a continued existence that most religions refer to as the afterlife,” Coward Aff., [Dkt. No. 100-2] ¶ 8. As is taught in the Bible and the Qur’an, many NGE adherents, including plaintiff, believe that “after creating the planet earth, the Supreme Creator formed the primordial waters and dust (black mud) of the earth, the physical structure (body) of the first (original) human beings to exist on earth, and animated these physical structures into existence as sentient beings.” Id. ¶ 16. The NGE also teaches that death is “a continuation within the infinite cycle of life. There is no end to life itself, and that which is of life only transforms from one stage of life to another.” Id. ¶ 22.

In addition to the 120 Degrees, the NGE’s central texts include the Supreme Mathematics, which attaches a value such as “wisdom” or “understanding” to each number; the Supreme Alphabets, which gives a meaning such as “Allah” or “justice” to each letter of the alphabet; and the 12 Jewel§, which are the values of knowledge, wisdom, understanding, freedom, justice, equality, food, clothing, shelter, love, peace, and happiness. Tr. at 81:14-22; PX 9 at 6; PX 157 at 8-10. NGE adherents use the Supreme Mathematics and Supreme Alphabets to discern meaning, particularly in words and dates. For example, as plaintiff explained, for the date July 13th, the one and the three in 13 stand for knowledge and understanding and when one is added to three it sums to four, which stands for cultural freedom. Tr. at 15:22-16:6. Using the Supreme Alphabets, a word such as “Allah” can be translated to “Arm, Leg, Leg, Arm, Head,” which represents man and man as Allah. PX 157 at 12. The Supreme Mathematics, the Supreme Alphabets, and the 12 Jewels are creations of Clarence 13X and make no mention of white devils or violence. Tr. at 100:9-13; PX 157 at 8-9.

The Bible and the Qur’an are also .texts that NGE adherents study, although they are not considered central texts. Tr. at 10:6-17. Other relevant literature includes periodicals, such as the Five Percenter newspaper, which “plays ah important role in connecting Nation communities around the country.” PX 157 at 14. The Five Per-center includes content ranging from reflections on NGE beliefs to letters from adherents, such as the incarcerated man who wrote on November 3, 2009 to share that since joining the NGE he had “achieve[d] many great things” including acquiring his G.E.D. and enrolling in college, which he claimed he “would never have received” “if it wasn’t for these life teachings.” PX 71 at 10.

NGE adherents are required to engage in daily study of their foundational texts to gain a déeper understanding of their “divine nature and ... relationship with life and the universe.” Coward Aff., [Dkt. No. 100-2] ¶ 23’. Individual NGE adherents often compile their personal 'interpretations of the foundational texts in a collection referred to as the “Book of Life.” Tr. at 246:11-18. Collectively, NGE adherents practice their beliefs by attending civilization classes and group meetings called ciphers or parliaments, as well as by observing honor (holy) days. Coward Aff;, [Dkt. No. 100-2] ¶ 23. Civilization classes involve adherents coming together to discuss their beliefs and broaden their knowledge by studying topics such as economics and health. Tr. at 21:11-17. At ciphers or-parliaments, NGE adherents stand in a circle and build on the day’s degree and talk about advancing the . Nation. Id. at 21:2-10, 21:18-22:3. “Enlightenment for a Nation adherent is not obtained by private devotion, hut through dialogue with other members of the Nation.” PX 157 at 13.

NGE adherents observe four honor days. "Allah’s (Clarence 13X’s) Birthday, which the NGE calls Father’s Day. is celebrated on February 22 and is marked by fasting and communal Reflection on Allah’s legacy. PX 152 at 10. Show and Prove Day, which is celebrated on or around June 13, is an opportunity for NGE adherents to show and prove that Allah lives on through them" by showcasing their gifts and talents at a community picnic. Id. at 10-12. On the third honor day, the Annual Family Day Event/Allah Social, which is celebrated on the last Saturday in August, NGE adherents gather and invite friends and family members to join in their festivities. Id. at 12. The last honor .day, called Day One, is celebrated on October 10 when NGE adherents commemorate the birth of the NGE by reflecting on the history of the NGE and dressing in their traditional colors of black and gold with men wearing Kufis and women wearing head wraps or Galas. Id. at 13.

Like Jews and Muslims, NGE adherents do not eat pork or pork by products. Tr. at 18:21-16:2; PX 9 at 12. They also do not eat scavenger animals such as crab and catfish. Id. A Kosher, Halal, or Vegan diet generally conforms to their dietary strictures. Id.; PX 152 at 14. The NGE’s symbol is the Universal Flag, which consists of the number 7, the sun, the moon, and a star. PX 152 at 15. NGE adherents display the flag during events and honor days. Id.

Although NGE adherents self-identify as a “God Centered Culture,” they explicitly do not identify with the word “religion,” emphasizing that historically religion has been a tool of oppression and fosters dependence on external forces. PX 157 at 12; PX 152 at 8. Citing the Crusades and other “so-called Holy Wars,” the Five Percenter newspaper argues that “[m]ore wars have been fought and more blood has been shed in the name of religion than any other cause, perhaps all other causes.” PX 74 at 3. “All religions say in one way or another that man does not and cannot stand alone. He is vitally related with and even dependent on powers in Nature and Society external to himself.” Id. at 8. Despite discomfort with labeling the NGE a “religion,” Coward states that the Nation “occupies a place in [his] heart, mind and life parallel to that filled by the orthodox belief in God/a Supreme Being in more mainstream religions which are widely accepted in the United States.” Coward Aff., [Dkt. Nor 100-2] ¶ 6.

Despite developing predominantly in urban, inner city areas where gang activity is present, the NGE has “vehemently renounced gang activity, and the Nation does not view gang members as part of the [NGE].” PX 157 at 14. Clarence 13X disavowed violence, encouraged his community to pursue education, and worked closely with established political figures, including the former New York City mayor, John Lindsay. Id. In a speech entitled “We are Not a Gang,” delivered at Brookdale College in 1998, one NGE adherent explained that the group had been mislabeled as a gang because it consisted primarily of young men with checkered pasts who were just coming into knowledge of themselves. PX 43 at 13. He explained:

We cannot be a gang, because we are a people. who are civilized.... Every member of our Nation has a responsibility—has a duty—to teach those who are uncivilized; those who have no knowledge and wisdom of themselves, nor understanding of their culture, or respect for government. It is their duty to show these people how they must be. This is why we teach that we are not anti-white or anti-establishment.... The only initiation one must have is the true dedication to reforming one’s self.

Id. at 14. Plaintiff testified credibly that in prison NGE adherents work with young men to help them break away from-gangs. Tr. at 15:5-9. “I actually be around a lot of gang members,” he said, “Bloods, Crips, you know, Gangster Disciples, MS-13, and a lot of them young guys, you know, and I get the opportunity to deal with them, to talk with them, you know, and try to move them away from their mindset.” Id. at 14:18-25. Similarly, an issue of the Five Percenter newspaper advocates converting gang members, specifically Bloods, to become Gods, observing that, “many a great God and Earth had gang origins [before] they got the knowledge. We must teach them!” PX 86 at 1.

B. The YDOC’s Policies Regarding Religious Activities

The VDOC regülates the recognition of religious groups in accordance with a policy entitled Offender Religious Programs. DX 28. Under tips policy, offenders sign up to participate in religious services through a pass list, which is used to control access to communal worship. Id. at IV.A.2(b)(i). An offender who wishes to attend a religious service must fill out a form designating the service the offender wants to attend. Id. Inmates are generally not permitted to attend services for more than one religion. Id. All religious services are visually observed by correctional officers, with the level , of supervision varying based on the security level of the facility, and group worship is normally conducted by an approved external spiritual leader or volunteer, not an inmate. Id. at IV.A.7. Inmates.may possess individual faith objects that have been approved by the Faith Review Committee, which is comprised of VDOC employees appointed by the Chief of Corrections Operations. Id. at IV.A.11; IV.D.l. All such objects must be purchased from the facility commissary and all religious literature must comply with the operating procedure for incoming publications. Id. at IV.F.6-7; see also DX 27. To request recognition for a religious group, an inmate must submit a “complete and well documented request” to the Facility Unit Head, who “will refer the request and supporting documentation to the Faith Review Committee for 'recommendation to the Chief of Corrections Operations,” who makes the final determination whether to approve a proposed religious group. DX 28 at IV.E.3-4. Under the VDOC’s policies, the Department may limit participation in religious activities based on “documentation showing a threat to the safety of persons involved in such activity or that the activity itself disrupts order in -the facility.” Id. at IV.F.1. In addition, -“religious activities may be limited, restricted, discontinued, or denied by the Facility Unit Head based upon legitimate concerns regarding security, safety, facility order, space, or resources ” Id.

. Only those groups that are formally recognized by the Department are “allowed to meet in [VDOC] facilities.” DX 28 at III, “Recognition of Religious- Groups.” The Department’s policies require it to “give no preference to the activities of one religious denomination, faith, or-sect over another.” Id. át I. The list of “Religions Approved to Operate in [VDOC] Facilities” enumerates 39 “approved” religious groups. PX 114. Many of these groups are mainstream religions such as Islam, Judaism, and various Christian denominations. Id. Others are less widespread, such as Asatru, Eckan-kar, Integral Yoga, NOI, Santería, and Wicca. Id. The list also includes two “sects” that are “not approved”: Five Percent Nation (Five Percenters/NGE) and Lost and Found Nation of Islam. Id The Five Percenters/NGE has been designated a security threat group (“STG”) or gang. PX 7 at 9.

In 2007, four inmates at Southampton Correctional Center petitioned the warden for recognition of the NGE and for the right to hold civilization classes. DX 9 at 00701. Warden J.V. Beale disapproved these requests and forwarded them to the then-Eastern Regional Director, A. David Robinson, who also disapproved the requests and forwarded them to the Faith Review Committee. Id. The Faith Review Committee referred them to J. Randy Myers, the Committee’s religious adviser, who testified, during the bench trial. Id. Myers is a Baptist minister with.an undergraduate degree in religious studies and a Master of Divinity degree from Southeastern Baptist Theological Seminary. Tr. at 436:22-25.. Unlike plaintiffs expert Professor Knight, Myers has not published any books about the NGE or conducted the same kind of fieldwork. Instead, he based his conclusions on review of a’Wikipedia page, three websites, and two news articles, as well as consulting with a member of the VDOC Gang Unit. Id. at 00700-03. Using that information, Myers wrote a two and a half page report summarizing his understanding of NGE beliefs and recommending that based on the VDOC’s classification of the NGE as an STG “and on the racist teachings of the group and the extensive record of dangerous, gang-related, violent acts committed by its adherents in prisons and society,” the Committee should deny the request for recognition. Id. In support of his finding that the NGE was dangerous, Myers wrote, “Most state prison systems consider Five Percenters to be a gang or a security threat group, refusing to recognize them as a religion, refusing to allow adherents to congregate, and banning their publications.” Id at 007002.

In his testimony, Myers added that the NGE did not satisfy the four-factor test-he used to assess a potential religion—although this test is .not discussed in his recommendation to the - Committee—and that “a real determining factor for [him] was in so much of what [he] found in the literature it refers to a deity or God of any sort as a mystery spook, as a human construct created by other world religions, be they Islam, Judaism, Christianity, whatever.” Tr. at 445:ll-446:22.-He also concluded that the NGE’s beliefs were not pro-social. Id at 448:18-449:1, Based on- his limited research, Myers testified that “the focus of the Five Percenters is not actually on a Supreme Being or a higher power but on the preservation and glorification of one race over all others.” Id at 452:16-18. On October 31, 2007, after reviewing Myers’s recommendation, the Faith Review Committee did not approve the petition, concluding that the NGE “is not a recognized religion in the VDOC.” DX 9 at 00699. The Court finds that Myers’s opinion about the NGE and his report to the Committee were not reliable because he based his conclusions on insufficient information.

Moreover, to the extent the Department was concerned about “the glorification of one race over all others,” it -has acted inconsistently by granting recognition to Asatru (also referred to as Odinism), a group associated with white supremacists, at the same meeting at which it denied recognition to the NGE. DX 9 at 00698. Asatru is “the ancestral folk religion- of Northern Europe -and a polytheistic, nature-based faith that worships, a variety of gods and goddesses.” Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 602 (5th Cir. 2008). It is well documented that “Asatru has ties to white supremacist gangs in' many prisons,” Karow v. Fuchs, No. 16-3049, 695 Fed.Appx. 966, 968, 2017 WL 2623106, at *2 (7th Cir. June 16, 2017), and it has been designated as .a gang by the VDOC, PX 7 at 2; PX 29.at 31. Despite clear evidence of violence directly connected to religious activity-,—in 2000, two VDOC inmates who practiced Asatru had violently murdered another inmate with 68 stab wounds on an “altar” during an “Asatru ceremony,” Lenz v. Commonwealth, 261 Va. 451, 544 S.E.2d 299, 301-02 (2001)—Asatru was approved by the Faith Review Committee. DX 10 at 00,0710. Myers, who recognized that Asatru has a white supremacist element that teaches racial violence, supported this decision based on his conclusion that Asatru was “legitimate” because it “tries to preserve a pre-Christian religion in [its] deities” and has pro-social values of “family life, raising children, [and] being patriotic.” Tr. at 449:9-451:10.

On July 7, 2011, the Faith Review Committee reviewed a second request to recognize the NGE. DX 10. The Faith Review Committee did not ask Myers to prepare a new report or update his old recommendation. In the absence of a request for additional work, Myers repeated his recommendation that the Committee disapprove recognition, which they did. Tr. at 457:20— 458:7; DX 10 at 00710. As the Committee explained in its minutes, “This group is viewed as a gang, not a religion.” DX 10 at 00710.

At the same meeting, the Committee considered whether to approve Asatru adherents possessing the Asatru Credo, a two-page document that was confiscated from an inmate based on “security concerns over the content.” PX 83 at 7. Myers recommended that the Committee approve the document, observing that “[t]hese teachings are in line with mainstream Asa-tru/Odinism teachings, and this is a faith group that has been recognized by [the VDOC].” Id. He continued,

The credo asserts racial separation (i.e. the “purity” of the races), not racial hatred or supremacy or violence. I.see -nothing in this credo that constitutes a security threat within [VDOC] facilities. (I would note that the teachings of- the Nation of Islam—NOI—are more potentially volatile, with the emphasis on Caucasians as the “white devils.” I do not see anything that rises to that level in these statements.)

Id. The Committee ultimately took no action on the matter, finding that “[t]his item was not referred by any institution, nor was there a request to approve or disapproved [sic] this document” DX -10 at 00710.

While incarcerated at Greenville Correctional Center, plaintiff twice applied for recognition of NGE as a religion.' PX 45A. There is no indication that either of these requests were ever forwarded to the Faith Review Committee, as required by Department policy. Id. Plaintiff also filed multiple administrative complaints challenging the confiscation of NGE literature from his mail. Id. at 31. These actions form the bases for his' four RLUIPA claims. Although the VDOC previously raised failure to exhaust as an affirmative defense, at trial the Department conceded that plaintiff had fully exhausted his administrative remedies and the Court made a finding to that effect. Tr. at 28:17-20, 35:19-36:4.

The VDOC can and does use the controls established in its Offender Religious Program policy to limit religious privileges as necessary for security and orderly, operations. According.-to Robinson, now the Chief of Corrections Operations, the Department has previously had security concerns with the NOI and its 3,000 adherents in VDOC facilities and it has been able to address those concerns by monitoring NOI activity through informants. Tr. at 508:1-21.- When there is information about a potential threat to the security or operation of a facility, the Department restricts the frequency or duration of the NOI’s meetings, subdivides adherents into smaller groups, and may even put the instigators into restrictive housing. Id. at 508:22-509:6. Robinson testified that during his thirty-five year career with the VDOC there have been some violent acts .by NOI members but none “specifically related to that religion.” Id. at 510:2-8.

Similarly, Burke, the Central Region Coordinator for what is effectively the Department’s gang unit, testified that a large number of white supremacists attend Asa-tru .-meetings and “they are closely monitored, and ... security staff is always present. There have been instances where that group has stepped out beyond what is the Asatru. religion, and they have been suspended or even shut down at certain localities for abusing the religion itself to cover what they were doing.” Id at 429:22-430:6. But, despite the group’s history of violent incidents within the VDOC, Asatru is still recognized as a religion because if a group is “recognized as a religion, [the Department] tend[s] to not track them and focus solely on them as much as [they] do the security groups.” Id. at 428:4-7. (Burke was unaware that Asatru is also designated as a gang. Id. at 419:9-23.)

C. The Nation’s Designation as a Security Threat Group

For purposes of this litigation, the VDOC uses the terms “STG” and “gang” interchangeably. PX 155 at 3. It defines a gang as: “A group of individuals who: (a) possess common characteristics that distinguish them from other offenders or groups of offenders and who, as an entity, pose a threat to the safety and security of staff, the facility, other offenders, or the community; (b) have a common distinctive goal, symbolism, or philosophy; [and] (c) possess identifiable skills or resources or engage in unauthorized/illegal activities.” DX 26 at 2.

In 1996, Gene Johnson, then the director of the VDOC, circulated a one-page memo advising regional directors .and wardens that “ ‘Five Percent’ groups should not be allowed to meet in any 'Department of Corrections facility.” DX 13. The memo did not identify any evidence of a security threat. Id. It simply observed that the Five Percent groups were “non-religious in nature, and that these groups consider their beliefs to be a ‘way of life’ rather than a religion.” Id. It added, without explanation, that “these groups may attempt to meet covertly” and that “some members may present a threat to the orderly and secure operation of the institution.” Id.

At a June 2001 evidentiary hearing in a First Amendment case brought by an inmate challenging the Department’s policies regarding the NGE, Director Johnson testified that the VDOC had not experienced any substantial problems with the NGE before the 1996 ban and that no security-related incidents had occurred since 1996 that reaffirmed the decision to ban the NGE. PL Findings [Dkt. No, 226] ¶ 17. He stated that the memo and the ensuing ban on NGE activities was based in part on a 1995 phone call with the South Carolina Department of Corrections, id., which began advocating for other correctional institutions to ban the NGE after five inmates in a South Carolina correctional institution led an uprising in April 1995, PX 157 at 15. The inmates ultimately surrendered in exchange for five minutes of time with an Associated Press reporter to air their grievance's about a new policy requiring that inmates be clean shaven and have short hair. Id. at 15-16. According to press reports, the inmates involved self-identified as Muslim or Rastafarian. Id. at-15. The subsequent criminal investigation concluded that one member of the uprising was a member of the NGE. PL Findings [Dkt. No, 226] ¶ 11. The South Carolina Department of Corrections responded to the incident by banning the NGE and placing all suspected members in administrative segregation. PX 157 at 16. At least one such adherent was held in “solitary confinement for 20 years, despite not having committed a single disciplinary infraction during that time.” Incumaa v. Stirling, 791 F.3d 517, 519 (4th Cir. 2015).

Johnson’s 1996 memo merely precluded Five Percent groups from meeting and did not discuss any specific security issues associated with the NGE, but it was the basis for the NGE being designated an STG and since that time the Department has been “monitoring their activities and attempting to track their membership.” PX 155; Tr. at 376:7-11, 388-.3-5. Although Burke, whom the Department designated as an expert in gang investigations, explained that “[assessing each group, individually, prior to designating them as a STG minimizes—and in [his] assessment, eliminates—the risk that a relatively innocuous organization will be erroneously designated as an STG,” PX 156 at 3, the Department offered no evidence of a comprehensive individual assessment being conducted of the NGE before imposing the STG designation.

Under VDOC Operating Procedure 427.1, offenders are “prohibited from joining, recruiting, associating with, participating in, or acting in concert with any individual or group of individuals who may constitute a gang.” DX 11 at 3. They are also “prohibited from owning, creating,, possessing, or passing to other individuals any correspondence, documents, photographs, drawings, jewelry, symbols, or property of any type that contains or indicates gang identifiers,'language, or information.” Id. “Any behavior” that “indicates such participation may lead to disciplinary, administrative, and/or criminal action against” the offender. Id In accordance with this policy, STG members aré not permitted to meet with other members of the group and they receive additional scrutiny from correctional officers.' Tr. at 421:2-422:14. In addition, an STG designation may affect an inmate’s eligibility for parole and precludes parolees from meeting with other members of the group or possessing the group’s symbols or literature while on parole. Id.

Burke filed an expert report and offered testimony explaining why the Department' considers the NGE to be an STG. A major factor in his analysis was the number of NGE adherents he believed to be in VDOC facilities. In his report, Burke, who like others in the Department uses the term “Five Percenters” to refer to NGE adherents, stated that “Five Percenters are the second-largest STG within the [Department],” PX 155 at 8, and claims that the VDOC’s NGE adherent population “far eclipses the number of Five Percenters housed in correctional facilities in other states,” Id. at 10. Burke testified that the Department identifies suspected gang members by assigning them points for “self-admission, for tattoos, for affiliation with other known members, possession of documents, things of that nature.” Tr. at 371:18-24. Once an inmate either has ten points or self-identifies as a gang member, the inmate is considered a “known” or validated gang member. Id.

Burke’s report identified “1200 [VDOC] offenders currently classified as either known or suspected Five Percenters” out of a total inmate population of 30,000, PX 155 at 10; however, during his testimony, Burke reduced that estimate of 1200 known or suspected NGE inmates by admitting that only about 700 were still “active” in the VDOC’s data system. Tr. at 372:9-18. Moreover, of these 700, several hundred were on probation or parole, reducing the number of known or suspected NGE adherents actually being housed within VDOC correctional facilities to .no more than the high 400s. Id. at 400:9-16. In addition, Burke did not and could not identify what subset of these inmates were validated NGE members. Based on these admissions, Burke conceded that the percentage of Virginia’s inmate population affiliated with the NGE is similar to that of New York, which has 724 NGE adherents (out of 53,000 offenders). Id. at 407:17-408:14.

The VDOC records also indicate that Five Percenters may be assigned more than one gang affiliation, with the Department designating inmates as either “Five Percenter,” - “Five Percenter/Blood,” or. “Five Percenter/Crip,” PX 25 at 31; PX 149 at 2; DX 21 at 02268. The Five Per-centers appears to be the only gang for which the VDOC-lists cross-affiliations. PX 25 at 81.

Another factor Burke identified as supporting NGE’s designation as- an STG is five specific incidents of violence involving NGE adherents. PX 155. These incidents occurred over the twenty-one-year period from 1996 to 2017. Id, First, relying on an affidavit submitted in a previous lawsuit by then-Director Johnson, Burke’s report stated that “Five Percenters assaulted a correctional officer at the Keen Mountain Correctional Center[, a level 4 facility,] in January 1996,” PX 155 at 8; however, Director Johnson’s original affidavit provided no additional details about the number of inmates involved, the inmates’ motivation, or the nature of the assault, Johnson Aff. ¶ 4(f), Versatile v. Johnson, No. 3:09-cv-00120 (E.D. Va. 2010), ECF No. 27-1, and neither party has introduced the records documenting the incident.

Burke’s report also relied on an affidavit from a previous lawsuit to assert that “at Red Onion State Prison, an offender kicked an officer in the chest, and, in his cell, documents were found indicating that the offender wanted to hurt staff .members.” PX 155 at 7. According to the disciplinary offense report, the event, actually took place at Wallens Ridge State Prison, a level 5 facility, where, on September 18, 2005, a correctional officer , had just removed the leg shackles from an inmate when the inmate kicked the correctional officer in the chest. PX 23 at 1. A subsequent search of the inmate’s cell revealed Five Percenter léssons as well as Crip literature and a note saying “I’m trying not to let these devils trick me up but I hate these police. I want to do something dangerous to them.” Id. There is ho indication in the report that the officer was injured. Id. at 1-2. Because the' disciplinary hearing determined that the assault could not be tied to STG activity, the inmate was found guilty of simple assault and possession of STG related materials. Id. at 1-4

The third incident identified in Burke’s report occurred at Keen Mountain Correctional Center in March 2009 when an inmate described by Burke as a Five Per-center got into an argument with another inmate, described as Caucasian, and told him, “White people are the devil.” PX 155 at 9. According to Burke, a few-days after the argument, the Five Percenter assaulted the Caucasian inmate with his fists, resulting in the victim suffering multiple facial fractures. Id. During the bench trial, the only evidence the Department provided to corroborate Burke’s description of the incident was the VDOC’s eleven-page incident report, which makes no mention of the race of either of the inmates, includes no description of any words that were exchanged between them, and does not indicate that the assailant was a member of NGE or a Five Percenter. DX 20.

As to the fourth incident, Burke’s report states that “a Five Percenter stabbed two Gangster Disciples at Sussex II state prison[, a Level 4 facility,] in approximately 2013.” PX 155 at 9. The contemporaneous documentation from the Department indicates that inmate Pridgen, “a confirmed Five Percenter/Blood,” was involved in a fight with a member of the Gangster Disciple from his housing unit in May 2013. PX 149 at 2; -DX 21 at 02268. The Gangster Disciple was punished and transferred to a different housing unit. Id On July 9,,2013, a fight broke out, between Pridgen and two different Gangster Disciples in which Prid-gen stabbed one of his assailants. Id. Prison officials concluded, “This incident appears to be a retaliation from the Gangster Disciples against [Pridgen] based on the previous [housing] incident.” Id; DX 21 at 02234.

As a final example of the “serious incidents” involving the NGE, Burke’s report pointed to an April 2, 2015 assault in which “two-known members of the Five Percen-ters attacked- another inmate (unaffiliated with any STG) with homemade metal shanks.” PX 155 at 8. According to the VDOG’s Report of Investigation, the fight, which took place at August Correctional Center, a level 3 facility, involved four African American inmates, Allah, Howard, Fentress, and Young, the first three of whom were designated as “members of the Five Percenter gang.” PX 116 at 1, 3. Allah and Howard attacked Young with sharpened pieces of metal and then Fen-tress joined the fight' alongside Young, his cellmate. PX 112 at 1. Fentress hit Allah who then struck Fentress with a sharpened piece of metal. Id. at 2. Prison officials broke up the fight and separated the inmates. While Howard was being escorted to segregated housing, he yelled “pride walk.” Id. Young sustained several puncture wounds that were three millimeters deep but none of the inmates required outside medical treatment. PX 116 at 10. When officers asked' one of the inmates about the cause of the-fight, “he said he couldn’t say what [it] was about” and when he was asked if it was an altercation between the Bloods and the Five Percenters, the inmate said “he wouldn’t refute that either.” PX 109 at 8. The 72-page report offers no conclusions or theories about what caused the fight. PX 116.

Burke’s report also identified “disruptive” activity by NGE adherents, including officers at Greenville Correctional Center, a level 3 facility, performing “two cell extractions of Five Percenters for disruptive behavior in the segregation unit,” and “a group of Five Percenters, along with some identified Bloods, [taking] over the Rastafarian religious services at Sussex II State Prison, using those services as cover for conducting group meetings.” PX 155 at 8-9. According to the corresponding documentation, a letter from a correctional officer at Sussex II state prison to the warden, the inmates attending the Rastafarian Program meetings were “not participating in religious activities when they [were] meeting in the dining hall”.but were discussing the date, July 9, 2007. PX 28 at 1. The officer expressed concern that one inmate was overheard saying that “the 797 [le., 07-09-07] is going down like the 747” while others remarked on the “unfair treatment that they were receiving within the institution” and talked about assigning security positions within the facility. Id. The memo also stated that of the 65.in-mates enrolled to attend the program, 30 inmates had been validated as gang members with most being designated as Five Percenters and Bloods. Id.

Burke’s report also cited evidence of NGE adherents attempting to “recruit other, inmates to join the Five Percenters.” PX 155 at 9. For example, on January 6, 2010, a gang specialist at Powhatan Correctional Center, a level 3 facility, documented an interview he had with an inmate found in possession of. “several pages of 5% knowledge,” consisting of a homemade newsletter (The Enlightener Newsletter), which the inmate admitted was prepared by an inmate at Powhatan. PX 53 at 1. The inmate also admitted to participating in monthly “Ciphers (meetings)” where the newsletters were distributed. Id.

To buttress his conclusion that the NGE is a gang, Burke’s report referenced an open letter from the national chairman of the New Black Panther Party for Self Defense (“the Party”), which advocated for “unity between The New Black Panther Party and the progressive members of the Bloods who desire a better life for our people” and stated that the Party’s “unity efforts to date include unity with the Nation [of] Islam (NOI) and Minister Louis Farrakhan; 5% Nation of Gods and Earths; (NGE): Lost and Found Nation [of] Islam (LFNOI); ... various Islamic and Muslim formations; Moorish Science Temple of America (MSTA); the Black Hebrew Israelites;” and several other entities. PX 26 at 1-3. Although the NOI, the Moorish Science Temple of America, and the African (Black) Hebrew Israelites are all religions approved by the VDOC, PX 114 at 1, the Department characterizes the letter as “acknowledging] that the Five Percenters were also a gang and ask[ing] them to join their organization.” PX 155 at 10.

Burke’s report stated that the NGE’s designation as an STG is further supported “by the message of racial supremacy that is displayed in their literature and teachings” and that “the literature or lessons utilized by this group, if viewed by other white members of the offender population, or even staff, could generate a risk to the harmonious operation of [VDOC’s] facilities.” Id. at 13. When Burke was asked at trial why the Department does not monitor the NOI, which shares much of the same rhetoric and foundational texts with the NGE, Burke’s only explanation was that “one is looked at afe a recognized religion and the other is recognized as a gang.” Tr. at 429:1-2. Burke agreed that the Department regards incidents involving the NGE as gang activity because that group is classified as a gang, while the same conduct, if done by a member of the NOI, would not be considered gang activir ty. Id. at 429:3-14. When addressing why racially supremacist teachings by Asatru do not undermine prison security, Burke explained that the VDOC doesn’t “recognize [Asatru] as a gang because they’re recognized as a religion.” Tr. at 419:9-13. (As Burke ultimately acknowledged, according to the VDOC’s records, Asatru is both an approved religion and a designated gang. Id. at 419:14-23.)

Burke’s report emphasized that the list of violent and disruptive incidents was not exhaustive and that there have been 503 total incident reports “involving Five Per-centers in VDOC facilities since 2011,” PX 155 at 10; however, the Department offered no details about these incidents other than Burke’s representation that “they encompass multiple aggravated assaults, serious assaults, cell extractions, fights, situations requiring use of force and/or application of restraints, [and] possession of contraband.” PX 155 at 10. But, Horn, who reviewed the list of incident reports, testified that many were unrelated to gangs or violence, such as medical emergencies and attempts to destroy state property, which could' include anything from cutting prison pants short to writing on the wall of a cell. Tr. at 296:2-7.

D. Accommodations for the NGE

In response to- this lawsuit the VDOC conducted a survey of correctional institutions across. the country, asking about their policies regarding the NGE. The survey was distributed on the VDOC’s behalf by the Association of State Correctional Administrators (“ASCA”) and thirty-three states responded. According to the survey responses, the correctional departments of thirteen states with NGE adherents do not recognize the NGE as a religion. They include Arkansas, Delaware, Georgia, Kentucky, Minnesota, Nevada, New Hampshire, North Carolina, South Carolina, Tennessee, Texas, Washington, and West Virginia. PX 136 at 5-7, By comparison, fifteen states’ correctional departments do recognize the NGE as a religion. States that have voluntarily afforded recognition to the NGE include Alabama, Illinois, Indiana, Maryland, Montana, Ohio, and Pennsylvania. PI. Findings [Dkt. No. 226] ¶ 58. In addition, the NGE has obtained recognition as a religion in lawsuits filed in Connecticut, Iowa, Massachusetts, Michigan, New Jersey, New York, Oklahoma, and Rhode Island.' PX 122A; PX 122B; PX 122F; PX.122G; PX 1221; PX 122K; PX 122M; PX 152. Of particular significance to this litigation, Massachusetts agreed to recognize, the NGE in 2008 while defendant Clarke was the Commissioner of the Massachusetts Department of Corrections. Tr. at 144:4-7.

Although there is some variation in the privileges afforded to NGE adherents, most states that have recognized the NGE permit adherents to have access to their foundational texts, including the 120 Degrees, the Supreme Mathematics, and the Supreme Alphabets, PX 122F at 3; PX 101 at 27; permit observance of the NGE’s four honor days, PX 101 at 27; PX 152 at 4; authorize adherents to elect an alternative diet consistent with their religious beliefs, PX 122N at 1; PX 152 at 4; and allow corporate worship to the extent that NGE adherents can identify an outside volunteer faith representative,. PX 122N,at 1; PX 122M at 1-2.

Of great significance to this litigation is the VDOC’s failure to provide any evidence of increased violence or erosion of good order and discipline at any correctional facility following recognition of the NGE. To the contrary, defendant Clarke testified that he was not aware of any discipline problems with the NGE during the three years he headed the Massachusetts Department of Corrections after the NGE was- recognized as a religion. Tr. at 146:3-7. He also testified that he is in contact with his counterparts at other correctional facilities and is not aware of any problems with the NGE in the states that have recognized it as a religion. Id. at 188:20-189:4.

Although Burke believes that “allowing the Five Percenters to meet, organize, or possess their literature would pose an unacceptable risk to the safety and security of VDOC institutions,” PX 155 at 14, Clarke testified that based on what he had learned during the course of this lawsuit, the total ban on the NGE should be changed and he acknowledged that there are less restrictive means of achieving the Department’s goals. Tr. at 149:19-24, 209:11-18.

Shortly before trial, the Department offered an accommodation that would entail moving NGE adherents who want to practice their beliefs to a designated housing unit at Wallens Ridge State Prison, a level 5 facility, where the group would retain its STG designation but members would be allowed to practice them beliefs and possess their literature. Tr. at 539:13-20. (Wallens Ridge is an all-male facility; female adherents would be placed at Fluvan-na, a level 3 facility. Id. at 176:10—16.) This accommodation would be subject to review and reconsideration after one year. Id. at 162:10-14. Plaintiff is currently incarcerated at Deep Meadow Correctional Center, a level 2 facility. Id at 54:2-6. He has declined this accommodation stating, “To do that is to say something is wrong with the [NGE]. To do that is to say that, they still say that we are a gang or we’re STG. To separate [NGE adherents] and give'[them] privileges over here while everybody else got privileges everywhere else is not right.” Id. at 56:18-57:2.

III. CONCLUSIONS OF LAW

A, RLUIPA (Claims 1-4)

1. Section 3 of RLUIPA

RLUIPA requires that burdens on the free exercise rights of incarcerated persons must withstand strict scrutiny, the most stringent standard of judicial review. Madison v. Riter, 355 F.3d 310, 314 (4th Cir. 2003). Recognizing that inmates are subject to “a degree of [governmental] control unparalleled in civilian society and severely disabling to private religious exercise,” Cutter v. Wilkinson, 544 U.S. 709, 720-21, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), Congress “passed RLUIPA to afford this confined population greater protection of religious exercise than what the Constitution itself affords,” Lovelace v. Lee, 472 F.3d 174, 186 (4th Cir. 2006).

Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability,” unless the government demonstrates that the burden is “in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that ... interest.” RLUIPA, § 3(a), 42 U.S.C. § 2000cc-1(a). A plaintiff “shall bear the burden of persuasion” on the prima facie case, namely “whether [the challenged practice or law] substantially burdens the plaintiffs exercise of religion.” Id. § 2000cc-2(b). If a plaintiff establishes a prima facie case, the burden shifts to the government to prove that the burden in question is the least restrictive means of furthering a compelling governmental interest. Id. § 2000cc-1(a).

Determination of what constitutes a “religious” exercise is, as the Supreme Court has acknowledged, “a most delicate question,” Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and one that is “of course a difficult question for courts of law to decide,” Doswell v. Smith, 139 F.3d 888 (table), 1998 WL 110161, at *3 (4th Cir. 1998). “But the inquiry, however difficult, is necessary, for while ‘the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests,’ the Free Exercise Clause protects those beliefs that are ‘religious’ and sincerely held.” Doswell, at *3 (quoting Yoder, 406 U.S. at 215-16, 92 S.Ct. 1526).

The test for' determining whether an inmate’s beliefs are protected as a religion is “whether they are (1) sincerely held and (2) religious in nature under [the inmate’s] ‘scheme of things.’” Moore-King v. County of Chesterfield, 708 F.3d 560, 570-71 (4th Cir. 2013) (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)). In determining whether the belief is religious in nature, a court should consider whether the belief “occupies] a place in [the inmate’s] life parallel to that filled by the orthodox belief in God.” Id. at 571 (internal quotation marks omitted).

A system of religious beliefs “is distinct from a ‘way of life,’ even if that .way of life is inspired by philosophical beliefs or other secular concerns;” however, “[a] religion need not be based on a belief in the existence of a supreme being (or beings, for polytheistic faiths).” Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005) (citing Yoder, 406 U.S. at 215-16, 92 S.Ct. 1526). As the Supreme Court has recognized, there are many religions in this country that “do not teach what would generally be considered a belief in the existehce of God,” including “Buddhism, Taoism, Ethical Culture, Secular Humanism and others.” Torcaso v. Watkins, 367 U.S. 488, 495 n.11, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). Courts must also “take care to ‘avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded mere secular beliefs.’” Doswell, at *3 (quoting Africa, 662 F.2d at 1031). Similarly, adherents “may not.be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others.” United States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 88 L.Ed. 1148 (1944).

RLUIPA “defíne[s] ‘religious exercise’ capaciously to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief,’ ” Holt v. Hobbs, — U.S. -, 135 S.Ct. 853, 860, 190 L.Ed.2d 747 (2015) (quoting 42 U.S.C. § 2000cc-5(7)(A)), and Congress has mandated that RLÜIPA be construed “in favor of broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). Courts have interpreted this language as indicating that Congress “intended to provide as much protection as possible to prisoners’ religious rights” without overly encumbering prison operations. Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 987 (8th Cir. 2004). Congress has also recognized that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” § 2000cc-3(c).

2. The VDOC’s Designation of the NGE as an STG and Refusal of Recognition

Numerous courts in the Fourth Circuit have addressed RLUIPA claims by NGE adherents and found that the NGE is not a religion and/or that the VDOC’s policies toward the NGE represent the least restrictive means for addressing a compelling government interest. See, e.g., Allah v. Virginia, No. 2:12-cv33, 2014 WL 1669331, at *1 (W.D. Va. Apr. 28, 2014), aff'd, 601 Fed.Appx. 201 (4th Cir. 2015). Versatile, 2011 WL 5119259; Harrison, No. 1:06-cv-1061. Nevertheless, cases must be decided on the record presented by the parties and, on this record, the Court finds that plaintiff has carried his burden of proving that the NGE is a religion and that his belief is substantially burdened by the Department’s policies. The VDOC, in turn, has failed to demonstrate that its designation of the NGE as an STG, and by extension its zero tolerance policy for NGE activity, represents the least restrictive means of furthering a compelling government interest.

a. Prima Facie Case

The threshold question before this Court is whether plaintiffs beliefs are entitled to protection as a religion,. that is, whether they are 1) sincerely held and 2) religious in nature ' under Coward’s scheme • of things. Moore-King, 708 F.3d at 570-71. The Department does not challenge the sincerity of plaintiffs beliefs and, based on plaintiffs testimony and demonstrated expertise about the Nation, the Court finds that his beliefs are sincerely held.

The Department does dispute that the NGE is a' religion, arguing that its adherents “worship themselves, rather than a higher being or power,” and “are not engaged in a religious practice, as contemplated under RLUIPA.” Def. Findings [Dkt. No. 225] at 16. The facts in this record do not support-that position. The evidence before the Court, as discussed supra, amply demonstrates that the NGE’s belief system occupies a place in Coward’s life parallel to that filled by the orthodox belief in the god of Christianity, Judaism, or Islam. Moore-King, 708 F.3d at 571. That NGE adherents do not believe in a deity does not disqualify the group from RLUIPA protection, as many widely recognized religions, such as Buddhism, “do not teach what would generally be considered a belief in the existence of God.” Torcaso v. Watkins, 367 U.S. 488, 495 n.11, 81 S.Ct 1680, 6 L.Ed.2d 982 (1961); PX 137 at 12. Similarly, NGE adherents’ opposition to the label “religion” is not disposi-tive because neither the Free Exercise Clause nor RLUIPA “turn on mere semantic distinctions.” Marria v. Broaddus, No. 97 CIV.8297, 2003 WL 21782633, at *11 (S.D.N.Y. July 31, 2003); see also PX 157 at 12 (explaining that Japanese religions are no less worthy of the term simply because “the word ‘religion’ did not exist in Japanese until Western influences imposed the construct”). Rather, courts look to the belief system itself and here the evidence demonstrates that NGE beliefs fulfill a function in the lives of its adherents analogous to that of orthodox religions. According to plaintiffs religious expert Professor Knight, who has written two books on the NGE and was highly credible,

[The Nation] makes a claim to a transcendent reality, that is, the divinity of the black man. [NGE adherents] have resources such as the Supreme Wisdom Lessons, Supreme Mathematics, and Supreme Alphabets], for understanding and interpreting that transcendent truth or that reality. They have practices such as fasting or dietary restrictions that reflect an effort to apply that transcendent reality and the texts to their lives, and there’s a' community ’ that defines itself by this shared adherence to these transcendent truths and resources ahd practices.

Tr. at 243:12-244:2; see also Knight Rep, PX 157 at 12 (opining that “the Nation is every bit as much of a religion as Christianity, Judaism, Hinduism, and other forms of Islam” and representing that “this view of the Nation is shared by most scholars in the academic study of religion”). Accordingly, the Court finds that, under plaintiffs scheme of things, his beliefs are sufficiently religious in nature to be entitled to protection under both RLUIPA and the Free Exercise Clause.

The record is equally clear that the VDOC’s policies impose a substantial burden on plaintiffs religious exercise. Defendants do not seriously dispute this. Def. Findings [Dkt. No.-225] at 16-18; Tr. at 587:6-24. As previously discussed, under VDOC Operating Procedure 427.1, NGE adherents are “prohibited from” and may be disciplined or criminally prosecuted for “joining, recruiting, associating with, participating in, or acting in concert with any individual or group of individuals” who share their beliefs and for “owning, creating, possessing, or passing to other individuals any correspondence, documents, photographs, drawings, jewelry, symbols, or property of any type that” reference the NGE’s beliefs or its Universal Flag. DX 11 at 3.

A substantial burden exists “[w]here the state ... denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs. While the compuls