State ex rel. Tate v. Cubbage

• Decision Date: 07 May 1965
• Citation: 58 Del. 430,210 A.2d 555
• Parties: , 58 Del. 430 The STATE of Delaware, on the relation of Walter H. TATE, John Weddington, David Sanders, Eron Davis and Pierce Johnson, Plaintiffs-Relators, v. I. Hammond CUBBAGE, Chairman, Sidney Balick, Karl K. Brown, George Ehinger, Thomas W. McKenna, Frank S. Parker, and C. Arthur Taylor, being and constituting the Delaware State Board of Corrections 1 , Harry W. Towers, Acting Director of Corrections and Raymond Anderson, Warden, New Castle Correctional Institution, and State of Delaware 2 , Defendants-Respondents.
• Court: Delaware Superior Court

Page 555

210 A.2d 555

8 Storey 430, 58 Del. 430

The STATE of Delaware, on the relation of Walter H. TATE John Weddington, David Sanders, Eron Davis and Pierce Johnson, Plaintiffs-Relators, v. I. Hammond CUBBAGE, Chairman, Sidney Balick, Karl K. Brown George Ehinger, Thomas W. McKenna, Frank S. Parker, and C Arthur Taylor, being and constituting the Delaware State Board of Corrections ¹, Harry W. Towers Acting Director of Corrections and Raymond Anderson, Warden, New Castle Correctional Institution, and State of Delaware², Defendants-Respondents.

Superior Court of Delaware, New Castle County.

May 7, 1965.

[58 Del. 433] Howard M. Handelman, Wilmington, for relators.

B. Wilson Redfearn, Deputy Atty. Gen., Wilmington, for respondents.

LYNCH, Judge.

Relators, inmates of the New Castle Correctional Institution ³ belonging to a group which is commonly known as the 'Black Muslims', filed an application for a Writ of Mandamus on June 19, 1964, naming as respondents those persons set forth above in the caption.

Basically, relators (1) claim that the Black Muslims are a religion, and that they have been denied their right to practice their religion at the N.C.C.I; and (2) that because of their particular religious beliefs they have been discriminated against as inmates of the N.C.C.I.

Respondents have waived all technical objections to the means by which the questions were brought before the court by relators. Respondents have further waived any objections which might exist because of a possible technical failure on the part of the relators to exhaust their administrative remedies before bringing this suit. Respondents' position is (1) that the teachings and beliefs of the Black Muslims is not a religion; (2) that they have not been deprived of any constitutional rights relating to their beliefs or the practice of their beliefs, if the court finds such beliefs are a religion, and (3) that relators have not been discriminated against because of their particular religious beliefs.

From the testimony adduced by both sides in the course of six days of hearings, I find that there are approximately 350 to 400 inmates at the main building of the N.C.C.I. The number of Black Muslim inmates at the main building of N.C.C.I. varies, but their number never exceeds 20.

For many years two religious services have been and still are regularly conducted on each Sunday at the N.C.C.I. One such service is for the Catholic inmates and the other is for the non-Catholic or Protestant inmates. These religious services have been held each Sunday in the recreation hall of the N.C.C.I., beginning at 8:15 A.M. and ending at 10:15 A.M. The rules and regulations of the State Board of Corrections provide that 'Inmate Bible Classes will be conducted under the leadership of Chaplains'. The Protestant Chaplain has conducted Bible classes for non-Catholic or Protestant inmates and the Catholic Chaplain has conducted such classes for the Catholic inmates.

Catholic and Protestant inmates receive religious literature, in accordance with the rules and regulations of the State Board of Corrections, which allow inmates to receive newspapers and magazines of a religious nature, which are on an approved list. The testimony was that the only list of approved literature in existence was for magazines; by implication seemingly there are no newspapers on any approved list. Relators have not been permitted to receive 'Muhammad Speaks', represented to be the 'official newspaper of the Black Muslims in America'. Relators made no showing that they ever applied to have this paper put on the approved list. ⁴ Copies were received in evidence. Relators have been permitted to receive and keep their Koran or Quran, which is their Bible.

Catholic and Protestant inmates have been permitted to have in their possession and wear religious symbols, such as crosses and medals; on the other hand, members of the Black Muslim group have not been permitted to have and wear 'crescents'--which they say is their religious symbol--nor have they been permitted to wear certain pieces of clothing which they claim have certain religious significances.

The State Board of Corrections had no rules or regulations governing the wearing of clothing or religious symbols at the time the difficulties arose which provide the background of this litigation. On May 26, 1964 regulations were adopted which prescribed a uniform for inmates of the N.C.C.I. These regulations did not apply or relate to the possession and wearing of religious symbols. Since the hearings have been completed pertinent regulations have been adopted by the Department, relating to possession and wearing of such medals, crosses and religious symbols.

Minister Carl X. Hardin, the Black Muslim Minister in Wilmington, testified for relators. He stated that the Black Muslim religion encompasses the same religious belief as practiced and blieved in by over 315 million people throughout the world known as Mohammedans. As such they believe in the Holy Koran 100%. They claim belief in Mohammedism and in its principles, including its concept of God or the Supreme Being. This witness conceded the Black Muslims teach a type of black supremacy or black superiority based on teachings of one 'Honorable Elijha Muhammad'; that it is one of his teachings that an injustice has been committed upon the black man in America and that those persons who have been and are guilty will have to pay for what they have done; that the black race was more righteous than the white race and thus that they were a superior race; that because of such superiority there will be a separation of the races in the near future.

Minister Hardin testified further that the religious and economic aspirations of the Black Muslims are as may be found in 'Muhammad Speaks', copies of which are in evidence; that while 'Muhammad Speaks' contained many other matters, it was basically a religious pamphlet. This witness likewise identified a copy of a book entitled 'The Supreme Wisdom', which contains the religious teachings of the Honorable Elijha Huhammad, and he testified that the book 'The Supreme Wisdom' is an explanation of the Scripture and contains God's own teachings; the teachings of the Black Muslims are that white men are all bad and are all liars, and that the white people have gone to the limit in doing evil, and thus there will be a general insurrection of the black people before the year 1970. He further testified that the Nation of Islam, as identified and practiced by the Black Muslims in America, was the same as the historic religions of Islamism, practiced by the other Mohammedans throughout the world.

Respondents, on the other hand, contend that these various documents, many of which are in record, and the book 'The Supreme Wisdom' speak for themselves and that they are highly inflammatory and I so find.

Dr. Schacht, Department Head from Columbia University, and a notable authority in the field of Oriental Religions, testified for respondents. He stated there are extensive and basic differences between the teachings of the two groups, i. e. the Mohammedans and Black Muslims. I find, therefore, that such religion as taught by the Black Muslims is not the same as has been and is taught by Mohammendans generally. I find that these two religions are incompatible, except for a given acceptance by the Black Muslims of what is taught in the Koran or Quran. It clearly appears to me that the teachings of those who are Black Muslims is heretical insofar as the Mohammedan faith is concerned.

Petitioners sought permission on June 7 and 8, 1964 to worship separately in the manner followed by their teachings and apart from other faiths. The request was made through the Institution's Chaplain. The Chaplain testified that all religious exercises are held on Sundays in the recreation hall, described by him as 'the only place that we have for religious services'. He further testified:

'For years we have had ministers, even before my time as chaplain, they have had ministers coming from various groups, as I said, the Methodists and the Baptists, and the Pentecostal, and the Lutherans, and the Assembly of God, and several denominations, some of them coming for years, and the Salvation Army comes the first Sunday of every month, and we have arranged it so. I have taken it on myself to try to get groups of men that we have in there; that is, we have a Baptist, we want a Baptist there, a Baptist minister there; and the Pentecostals, and whatever denomination, we try to arrange to have a minister there to hear them, or on two Sundays or maybe three Sundays a year.'

He also testified:

'Q I understand that you say that you turned him down because your list had already been made up for the year. Is that correct?

'A That is right.

'Q I understand also that you say that you had turned down other people from the outside for the same reason. Is that correct?

'A That is right.'

I, therefore, find that the decision of the Chaplain, accepted by the respondents, was based on prior practice and his conception of available facilities at the N.C.C.I. I am convinced that it was not discriminatory in nature or made because relators are Black Muslims. Nonetheless, as noted hereafter, principles of the Equal Protection clause are pertinent and must be considered in the determination of this case.

Relators professed to not believe in violence; they further professed to believe in submission to prison authority. I find against relators on these points.

While the Black Muslim group, and specifically the relators, claimed to be a nonviolent group, one witness was in a fight with one of the Muslims when he mentioned that there was only one Savior and that was Jesus Christ and I am convinced that some or all relators engaged in their Black Muslim activities in a course of conduct which made threats of violence in certain instances and under certain circumstances. Although...