Church of the New Song and Religious Liberty

The Church of the New Song (CNS) is an entity created within the federal correctional system. It has engaged in significant litigation in the federal courts over the past thirty years to gain recognition as a ‘‘religion’’ for purposes of establishing the right of its adherents to practice their religion while incarcerated. Interestingly, the federal courts have split in their response to arguments advanced by CNS. The Eighth Circuit recognized the sect as a religious entity entitled to First Amendment protection in Remmers v. Brewer, 494 F.2d 1277 (8th Circuit 1974). In contrast, CNS failed to gain recognition in the Fifth Circuit, which dismissed the CNS appeal from adverse findings by the trial court in Theriault v. Silber, 453 F.Supp. 254, 260 (W.D. Tex. 1978), appeal dismissed, 579 F.2d 302 (5th Cir. 1978). The district court concluded:

The Church of the New Song appears not to be a religion, but rather as a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful and/or reasonably disallowed by the various prison authorities but for the attempts which have been and are being made to classify them as ‘religious’ and, therefore, presumably protected by the First Amendment.

The conflicting findings concerning the legitimacy of CNS’s claim to First Amendment protection lie, in part, in the tactics of the entity’s founder and leader, Dr. Harry Theriault, a federal inmate with a record of prison escape, violence, and threatened violence. Theriault admittedly created the entity’s underlying doctrine, the ‘‘Eclatarian faith’’ while incarcerated and a critical finding of some courts has been that a central tenet of the faith is rebellion against the prison system, judiciary, and government, in general. Theriault v. Carlson, 494 F.2d 390, 394 (5th Cir. 1974).

The difficulty in assessing the legitimacy of CNS’s claim to constitutional protection is complicated by the recognition of many other nontraditional or non- Western sects whose theological precepts or practices have been accorded protection under the Free Exercise Clause. As the Supreme Court observed in United States v. Ballard:

It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences that are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. 322 U.S. 78, 87 (1944) (defendant accused of fraud claimed religious leadership of the ‘‘I Am’’ movement).

Federal courts have routinely permitted practitioners of minority sects to assert claims for constitutional protection, typically in actions brought by inmates. See for example, Cruz v. Beto, 405 U.S. 319, 322 (1972) (Buddhist inmate); Cooper v. Pate, 378 U.S. 546 (1964) (Black Muslim inmate); Teterud v. Gillman, 385 F.Supp. 153, 160 (S.D. Iowa 1974) (Native American hair length protected against claim of institutional disruption); and Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976) (remanding for evidentiary hearing on claims of professed Satanists). The proper resolution of such claims requires conscientious analysis of the purported system of belief and, typically, in the context of inmate litigation, its potential burden or disruption for the institution, as demonstrated by the excellent analysis in Childs v. Duckworth, 509 F.Supp. 1254 (D. Ind. 1982). There, the court rejected the claim of a practitioner of the Church of Satan/Fraternity of the Goat that his need to burn incense and candles in his cell was entitled to First Amendment protection.

A similarly thorough analysis was applied by the Iowa court in reviewing the status of CNS as a recognized religion in the Eighth Circuit, with the conclusion being drawn that CNS functioned much as many other religious sects, had a body of beliefs or theology, and did not exist as a sham or to disrupt the institution. Loney v. Scurr, 474 F.Supp. 1186, 1193- 94 (S.D. Iowa 1979). These findings contrast sharply with those entered by the district court in Texas that contributed to a rather hostile view of the CNS and its founder in the Fifth Circuit, evidenced by its explanation for dismissal of the appeal in Theriault v. Silber.

The CNS litigation demonstrates the difficulty in determining when a particular claim of faith is sufficiently well grounded to be accorded protection under the First Amendment. Even when the claim of faith is recognized, that recognition does not necessarily lead to unfettered practice, particular in the context of penal institutions. As the court observed in Loney v. Scurr, 474 F.Supp. at 1196: ‘‘. . . the free exercise of religion has two aspects the freedom to believe, which is absolute, and the freedom to practice, which is not.’’

J. THOMAS SULLIVAN

Cases and Statutes Cited

• Childs v. Duckworth, 509 F.Supp. 1254 (D. Ind. 1982)
• Cooper v. Pate, 378 U.S. 546 (1964) (Black Muslim inmate)
• Cruz v. Beto, 405 U.S. 319, 322 (1972)
• Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976)
• Loney v. Scurr, 474 F.Supp. 1186, 1193-94 (S.D. Iowa 1979)
• Remmers v. Brewer, 494 F.2d 1277 (8th Circuit 1974)
• Teterud v. Gillman, 385 F.Supp. 153, 160 (S.D. Iowa 1974)
• Theriault v. Carlson, 494 F.2d 390, 394 (5th Cir. 1974)
• Theriault v. Silber, 453 F.Supp. 254, 260 (W.D. Tex. 1978)
• United States v. Ballard