Lipp v. Procunier, C-73-247.

• Decision Date: 21 May 1975
• Docket Number: No. C-73-247.,C-73-247.
• Citation: 395 F. Supp. 871
• Parties: Herbert L. LIPP et al., Plaintiffs, v. Raymond PROCUNIER, Director, California Department of Corrections, et al., Defendants.
• Court: U.S. District Court — Northern District of California

395 F. Supp. 871

Herbert L. LIPP et al., Plaintiffs, v. Raymond PROCUNIER, Director, California Department of Corrections, et al., Defendants.

No. C-73-247.

United States District Court, N. D. California.

May 21, 1975.

John Eshleman Wahl, San Francisco, Cal., for plaintiffs.

Evelle J. Younger, Atty. Gen. of Cal., Sanford Svetcov, Deputy Atty. Gen., San Francisco, Cal., for defendants.

Before SNEED, Circuit Judge, and CARTER and EAST, District Judges^*.

DECISION

EAST, Senior District Judge:

At the time of the institution of these proceedings, the plaintiffs Herbert L. Lipp (Lipp), Ronald J. Kintner (Kintner) and Melvin C. Hull (Hull) were prisoners in penal institutions within the State of California; however, they are presently on parole status. Twenty-five additionally named inmates of a California penal institution have been joined as party plaintiffs.¹ Lipp, Kintner and Hull did not and the additional plaintiffs do not specifically allege that they are homosexual in sexual orientation. However, the record amply supports the fact that Lipp and Kintner displayed homosexual proclivities and acts in prison and required segregated facilities.

The remaining plaintiffs are: (a) ministers and a member of Universal Fellowship of Metropolitan Community Churches (Ministers) and (b) various Metropolitan Community Churches and Fellowships and Conferences of the Metropolitan Community Churches (Church). The Church is designed and organized to minister primarily to the spiritual and religious needs of people who are homosexual in sexual orientation.

Lipp, Kintner and Hull did and the additional plaintiffs do desire the in prison congregated ministry of the Church, and the Church, its ministers and members, desire to provide such in prison congregated services and ministry.

The defendant, Raymond Procunier (Procunier), is the duly appointed and acting Director of the California Department of Correction, charged with the lawful management of the penal institutions of that state. The remaining defendants are Superintendents of various penal institutions within California charged with the lawful management of his respective institution.

PLAINTIFFS' CLAIM

Concisely, the plaintiffs claim that the individual defendants, acting separately or in concert, have deprived the plaintiffs of their federal constitutional rights to equal treatment under the law, to be free of cruel and unusual punishment and to freely exercise their religion by directing, ordering and commanding that religious services and ministry, as conducted by the Church, its ministers and members, intended primarily for individuals of homosexual sexual orientation, be prohibited in the penal institutions of California and specifically as set forth in the letters of Procunier dated July 21, 1972 (Ban), and of defendant, Louis S. Nelson, as Superintendent, dated February 5, 1973.² The plaintiffs seek injunctive relief from the Ban.

DEFENDANTS' RETURN

Primarily, the defendants contend:

First, that the doctrines, beliefs, teachings and ministries of the Church do not constitute a bona fide religion but rather a self-proclaimed religious and social group seeking to provide in prison services in social counseling; accordingly, the named plaintiffs and the Church are without standing to assert a denial of constitutional freedom of religion.

Secondly, the Ban prohibits only in prison group or congregated religious service or social counseling conducted by Church's ministers and members for homosexually oriented inmates, and individual ministry under local prison visitation rules and procedures is not prohibited.

The Ban of in prison congregated or group religious or social services conducted by the Church's ministers or members for homosexually oriented inmates is justified by legitimate penological objectives for the welfare and safety of the inmates and the security and objectives of the institutions.

JURISDICTION

We note the jurisdiction of this three-judge district court under 42 U.S. C. § 1983, 28 U.S.C. § 1343(3) and (4), and § 2284.

The defendants suggest that this court abstain from adjudicating the constitutional issues raised herein and refer the cause to the courts of California for adjudication under state law. We decline.

MOTIONS

The plaintiffs have moved for a temporary injunction against the enforcement of the Ban.

The defendants have moved for a dismissal of the complaint on the grounds that the same fails to state a claim upon which relief may be granted.

Following oral argument, the parties plaintiffs and defendants each and all moved for an order of summary judgment in their favor, respectively, whereupon the cause was submitted.

The defendants' motion for a dismissal of the complaint must be denied. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972).

THE EVIDENCE

The plaintiffs have produced in evidence herein various items of documentary evidence and affidavit averments in support of and supplementing the allegations of the complaint and the exhibits attached thereto.

The defendants have produced various documentary evidence and affidavit averments in support of their contentions.

DISCUSSION

The counter-contentions of the parties present to us a two-pronged federal constitutional question, namely:

(a) Whether the Church teaches and preaches a bona fide religion within the concept of the establishment clause of the First Amendment (freedom of belief);

(b) If so, whether the in-prison ban on the congregated practice and participation therein by the inmates and ministers of the Church unconstitutionally prohibits the free exercise of such religious belief (freedom to act).

We accept as our guide in reaching an appropriate disposition of those questions the principles delineated in Sharp v. Sigler, 408 F.2d 966, at 970 (8th Cir. 1969), and specifically as expressed by Mr. Justice Roberts in Cantwell v. Connecticut, 310 U.S. 296 at 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940):

"The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment. . . . The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the First Amendment's proscription of any law `respecting an establishment of religion, or prohibiting the free exercise thereof' embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places . . . of holding meetings italics supplied upon its streets; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment."

These principles or precepts safeguarding freedom of religion were formulated generally for individual liberty versus governmental regulation in open society; nevertheless, such follow and abide with an inmate of a penal institution but subject to necessary and reasonable institutional regulation.

"`Freedom of religion can never mean freedom to interfere with the peaceful rights of others, or freedom to flagrantly disregard reasonable rules of conduct in or out of prison.'" Sharp, supra, at page 970, citing Evans v. Ciccone, 377 F.2d 4, at 6 (8th Cir. 1967); Sostre v. McGinnis, 334 F.2d 906, at 908 (2nd Cir. 1964), cert. denied, 379 U.S. 892, 85 S.Ct. 168, 13 L. Ed.2d 96.

Freedom of Belief:

For some persons, the disturbing feature of the Church and its ministry is the unconventional purpose of administering "primarily to the spiritual and religious needs of people who are homosexual in sexual orientation." We hold no office to delve into a discussion of the theology involved; however, we do comment that while most Christian ministries believe and consider individuals of homosexual sexual orientation to be abominations and undesirable in the eyes of God, the Church's ministers homilize well that under the Scriptures Christ considered such an individual among His brotherhood of man.

In any event, it is manifest that the mere fact of one having homosexual proclivities does not per se deprive him of legal entitlements and constitutional immunities. Mindel v. United States Civil Service Commission, 312 F.Supp. 485 (N.D.Cal.1970), citing Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1163-64 (1969).

It is only the act or acts committed in the manifestations of an individual's homosexual orientation and proclivities that are forbidden under the law. Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 238-39 (1969); Wentworth v. Schlesinger, 160 U.S.App.D.C. 172, 490 F.2d 740 (1973). Cal.Pen.Code §§ 286, 288a.

"The only appropriate and relevant inquiry is whether or not the Church and its ministry are a religion and whether the inmates possess a sincere and good faith belief in that creed. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944); United States v. Seeger, supra 380 U.S. 163, 177, 85 S....