Remmers v. Brewer

• Citation: 361 F. Supp. 537
• Decision Date: 24 July 1973
• Docket Number: Civ. No. 72-177-2.
• Parties: Michael D. REMMERS and Robert Loney, Plaintiffs, v. Lou V. BREWER, Warden, et al., of the Iowa State Penitentiary at Fort Madison, Iowa, Defendants.
• Court: U.S. District Court — Southern District of Iowa

361 F. Supp. 537

Michael D. REMMERS and Robert Loney, Plaintiffs, v. Lou V. BREWER, Warden, et al., of the Iowa State Penitentiary at Fort Madison, Iowa, Defendants.

Civ. No. 72-177-2.

United States District Court, S. D. Iowa, C. D.

July 24, 1973.

Robert Bartels, Iowa City, Iowa, Barry A. Lindahl and Robert N. Clinton, College of Law, U. of Iowa, Iowa City, Iowa, for plaintiffs.

Thomas R. Hronek and Lorna L. Williams, Asst. Attys. Gen., De Moines, Iowa, for defendants.

MEMORANDUM AND ORDER.

HANSEN, Chief Judge.

This is an action brought under 42 U. S.C., Section 1983 by two inmates of the Iowa State Penitentiary at Fort Madison, Iowa, against the Warden and other prison officials. Petitioners aver that as members of the Church of the New Song they are being denied the right to practice their religion in violation of the First Amendment. They furthermore claim that certain practices of the prison's Diagnostic Committee, which makes recommendations to the Parole Board, violate the Establishment Clause of the Constitution.

FINDINGS OF FACT

There is no substantial dispute between the parties concerning the facts which gave rise to this controversy. Plaintiffs Michael Remmers and Robert Loney are both presently incarcerated at the Iowa State Penitentiary, a maximum security institution operated by the State of Iowa. Defendant Brewer is the warden at the prison. Defendant Ray is the Protestant chaplain at Fort Madison and defendant Hoenig is the Catholic chaplain. The two chaplains have primary responsibility for conducting religious programs at the prison, subject to review by the warden. Both chaplains are also members of the prison's Diagnostic Committee, which is composed of seven members of the prison supervisory staff. The Diagnostic Committee meets in rotating groups of three to meet with and interview prisoners prior to their appearance before the Parole Board. Following these interviews, the Diagnostic Committee submits reports to the Parole Board with recommendations as to the prisoner's suitability for parole. It is this participation by the chaplains in the parole process which petitioners claim violates the First Amendment.

In late 1971 or early 1972, plaintiff Remmers was involved in the founding of a group known as T.R.U.T.H., an acronym for To Religious Understanding Through Hope. This organization, in which plaintiff Loney was also involved, apparently functioned as an informal discussion group with religious overtones. Shortly after the founding of T.R.U.T.H., Remmers approached Reverend Ray on behalf of the group and requested permission to hold formal meetings and use prison facilities. This request was denied by Reverend Ray because he felt that T.R.U.T.H. was not a "recognized" religion and had no established counterpart or sponsor outside the prison.

Sometime after this encounter, Remmers and other T.R.U.T.H. members became acquainted with an order known as the Church of the New Song and the teachings of its founder, one Harry Theriault. Following this acquaintanceship, Remmers, Loney, and a number of other inmates became members of the Church of the New Song and carried on correspondence with Bishop Harry Theriault and other Church of the New Song functionaries. Remmers and Loney then again approached Reverend Ray and Father Hoenig. They expressed their belief in the Church of the New Song and indicated to both chaplains that a sizeable number of inmates were interested in the new faith. Their request for meeting facilities and formal scheduling of Church of the New Song activities was denied by the chaplains with the explanation that the church was not a recognized religion. Plaintiffs then pressed their cause directly to Warden Brewer, presenting to him a petition with some 102 signatures of inmates purportedly interested in possibly attending Church of the New Song services. Their request was again denied on the grounds that the Church of the New Song was not a recognized or genuine religion. Plaintiffs claim that the failure of prison authorities to accommodate their beliefs by granting them facilities and time to practice their religion violates rights guaranteed to them under the First Amendment.

Plaintiffs filed a pro se complaint in this Court on August 3, 1972, seeking the following relief: (1) That Warden Brewer be ordered to allow the Church on the New Song membership to fully practice their religion by (a) gathering together for religious meetings and services, (b) receiving and possessing religious literature, (c) being allowed to study and discuss Church of the New Song precepts, (d) being allowed to correspond with other members of their faith; (2) That Warden Brewer be ordered to direct all prison personnel to grant the above rights to Church of the New Song members; (3) That the prison chaplains be enjoined from participating in any manner in Diagnostic Committee interviews or reports which may affect parole eligibility; (4) That the two chaplains be enjoined from submitting oral or written reports to the Diagnostic Committee concerning the religious activities of inmates.

Petitioner's cause was tried to the Court on February 22, 1973 and February 23, 1973. Besides the plaintiffs themselves, three other Church of the New Song members testified on their behalf: Coadjutor Richard Tanner, International Ambassador Becky Hensley, and Dr. Stephen Fox, a professor of Psychology for the University of Iowa. The defense presented as witnesses Warden Lou Brewer, the defendant Reverend Ray, and James Riggsby, a program director at the U.S. Federal Penitentiary in Atlanta, Georgia, where the Church of the New Song was apparently founded.

IS THE CHURCH OF THE NEW SONG A RELIGION?

The threshold determination to be made in this case concerns whether or not the Church of the New Song is a religion so as to come under the protection of the First Amendment. This question has previously been considered by a federal court in Theriault v. Carlson, D.C., 339 F.Supp. 375 (1972). Theriault involved constitutional claims and issues substantially similar to the present case. Inmates at the Atlanta federal pentitentiary claimed that as Church of the New Song members they were being denied the right to freely and meaningfully practice their religion in violation of the First Amendment. The prison authorities defended their actions by asserting that the Church of the New Song was merely a sham and a front to disguise disruptive or revolutionary activities. Since the Church of the New Song had been founded by an inmate at the Atlanta penitentiary, Bishop Harry Theriault, the court in Theriault v. Carlson was in a unique position to review at first hand the foundations and activities of this new faith. The court there concluded that the Church of the New Song was a religion and as such was entitled to the full protections of the First Amendment. After a careful review of the evidence presented at the trial of this cause, this Court agrees with the conclusion of Judge Edenfield in Theriault v. Carlson.

In the first instance, the Court notes that the preferred position of religious freedoms in our constitutional plan demands that a federal court view religious claims with great solicitude lest these vital freedoms be extinguished. Nor is the Court lightly disposed to overturn the finding of a sister court, particularly where that court had the advantage of perspective enjoyed by the court in Theriault v. Carlson, supra.

The term "religion" is not defined in the Constitution. Indeed, a succinct and comprehensive definition of that concept would appear to be a judicial impossibility. The relatively few cases dealing with the subject indicate, however, that the concept is to be given a wide latitude in order to insure that state approval may never become a prerequisite to the practice of one's faith. See Fulwood v. Clemmer, D.C., 206 F. Supp. 370 (1962); Theriault v. Carlson, supra. See also United States v. Seeger, 380 U.S. 163, 177, 85 S.Ct. 850, 13 L.Ed. 2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).

The testimony at the trial of this cause adduced a great deal of information concerning the foundations and precepts of the Church of the New Song, much of which is contained in Theriault v. Carlson, supra, and need not be reiterated here. What the testimony did show, however, is that the Church of the New Song qualifies as a religion even under a narrow construction of that term.

The primary bond between Church of the New Song members appears to be their belief in an inanimate and supreme force or spirit called Eclat, which they believe pervades all things. The Eclatarians apparently believe that Eclat is a unifying and harmonizing spirit which unites all men in brotherhood. Thus Eclat may be seen to occupy roughly the same relative position in the Eclatarian faith as the Christian God or Hinduism's Brahma. Eclatarians view Jesus and other Christian figures as great teachers and spiritual leaders who are nonetheless subordinate to Eclat. Thus plaintiffs do not feel that they are a Christian sect or that their religious needs can be fulfilled under the existing opportunities for Protestant or Catholic services. Important writings in the Eclatarian faith include the Bible and a series of "Demandates" and "Exegetic Missives" issued by the spiritual leader of the faith, Bishop Harry Theriault. These latter writings have been included in a volume or Eclatarian Bible which serves as the primary source of Eclatarian teachings.

The testimony of Richard Tanner and Becky Hensley showed that the Eclatarian movement is no longer confined only to the inmates of two federal penitentiaries, as was the case when the Theriault opinion was written. Rather, the Church of the New Song appears to have spread both within and without penal institutions across the country. According to the testimony of Miss Becky Hensley, International Ambassador of the Church of...