Theriault v. Carlson

• Decision Date: 25 February 1972
• Docket Number: Civ. A. No. 13872.
• Parties: Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, and Rector, The Fountainhead Seminary, Rev. Jerry M. Dorrough, Vice-Rector, The Fountainhead Seminary, and Minister, Church of the New Song of Universal Life, et al. v. Norman A. CARLSON, Director, Bureau of Prisons; Rev. Frederick Silber, Director of Chaplaincy Services, Bureau of Prisons; J. D. Henderson, Warden, United States Penitentiary, Atlanta, Georgia; Rev. Jack A. Hanberry, Protestant Chaplain, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta; Fr. Raymond A. Beane, O.M.F., Catholic Priest, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta.
• Court: U.S. District Court — Northern District of Georgia

339 F. Supp. 375

Dr. Harry W. THERIAULT, Bishop, Church of the New Song of Universal Life, and Rector, The Fountainhead Seminary, Rev. Jerry M. Dorrough, Vice-Rector, The Fountainhead Seminary, and Minister, Church of the New Song of Universal Life, et al. v. Norman A. CARLSON, Director, Bureau of Prisons; Rev. Frederick Silber, Director of Chaplaincy Services, Bureau of Prisons; J. D. Henderson, Warden, United States Penitentiary, Atlanta, Georgia; Rev. Jack A. Hanberry, Protestant Chaplain, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta; Fr. Raymond A. Beane, O.M.F., Catholic Priest, United States Department of Justice, Bureau of Prisons, United States Penitentiary, Atlanta.

Civ. A. No. 13872.

United States District Court, N. D. Georgia, Atlanta Division.

February 25, 1972.

COPYRIGHT MATERIAL OMITTED

Harry W. Theriault, pro se (Glenn Zell, Atlanta, Ga., of counsel), for plaintiffs.

John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for defendants.

OPINION AND ORDER OPINION

EDENFIELD, District Judge.

Harry William Theriault, self-styled Bishop of Tellus¹ and self-proclaimed leader of a group designated by petitioners as the Church of the New Song,² is also a federal prisoner incarcerated presently in the Atlanta federal penitentiary on "holdover" status from the Marion (Illinois) federal penitentiary. For a year and a half he has sought to compel prison officials in Atlanta and Marion to grant him the right to hold religious services in prison for those who shared his belief in the Eclatarian faith,³ a faith of which he is the supreme exponent. The prison authorities denied his requests and his appeals to respondent Silber, Director of Chaplaincy Services for the Bureau of Prisons, and respondent Carlson, Director of the Bureau of Prisons, were unsuccessful. Petitioners then filed this class action here and the court, predicating its jurisdiction upon 28 U.S.C. § 1361 (1970), held four full days of hearings on the matter. Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966). ("Walker I".) The court has concluded that petitioners and the class they represent have been denied First Amendment rights, and it will order relief.

A full recitation of the history of this case is unnecessary. Briefly, Theriault and co-petitioner Dorrough founded the Church of the New Song and the Fountainhead Seminary in 1970 while incarcerated in Atlanta. They had obtained "doctor of divinity" certificates from a mail-order organization and, as a "game", they decided to challenge the chaplaincy program in the federal prisons and, at the same time, to develop a new religion of their own. The petition filed in this court alleged that the Government had established religion in the Atlanta penitentiary and was also prohibiting its free exercise by those prisoners who belonged to the Church of the New Song. Petitioners claimed that a "pall of establishment orthodoxy" had been cast over their lives because respondents Hanberry and Beane, the Protestant and Catholic chaplains, respectively, who were members of the prison staff and federal employees, regularly submitted reports on the religious activities of the prisoners which had a direct bearing on the grant or denial of parole. They also contended that the chaplains were promoting the majority faiths at the expense of minority faiths by failing to grant religious standing to the Church of the New Song. The petition was supported by the signatures of 165 prisoners.

Immediately after the petition was allowed filed in this court, Theriault was transferred to Marion which houses the most severe security risks in the federal system. Theriault now began to take his own religious claims seriously and attempted to explain them to the prisoners and staff at Marion. The Chief of Classification and Parole at Marion testified in this court that, at this point, Theriault's activities were truly religious in nature. Theriault approached the Protestant chaplain at Marion for permission to hold religious services for himself and his followers, but the request was denied because the chaplain felt the Church of the New Song was not "recognized." Theriault attempted to meet this objection by assuring the chaplain he would obtain an official church charter from the Universal Life Church, Inc., the mail-order organization which supplied Theriault with his "doctor of divinity" degree. The chaplain brought the matter to the attention of respondent Silber,⁴ and Rev. Silber testified in court that he upheld the decision of the Marion chaplain because the Church of the New Song and the Eclatarian faith were not "recognized." Theriault also wrote to respondent Carlson but received only a form response directing him to the institutional staff.

As Theriault continued his activities among the Marion prisoners, the staff began to suspect that he was actually organizing a radical political movement. One staff member filed a memorandum on the subject and urged that something be done to control Theriault's activities.⁵ Three days after the memorandum was filed, Theriault was placed in punitive segregation ("H-Unit") for failing to obey the order of a security officer to move. He was subsequently released and later cited for a minor violation and for threatening a security officer. On April 1, 1971 Theriault approached Mr. J. Culley, a correctional supervisor, and demanded a place to hold religious services. Culley discussed the matter with Theriault but refused to accede to his demand. Then, "as a preventive measure," Culley had Theriault placed in punitive segregation ("H-Unit").⁶ Theriault remained in H-Unit from that night until he was transferred to Atlanta for the hearings before this court.⁷ The day Theriault was received back in Atlanta he was immediately placed in the segregation unit and he is still there today.⁸ The court finds as fact that the sole basis for the punitive segregation of Theriault was his demand to hold religious services.

A. The "Establishment" Claim

The "establishment" claim raised by petitioners is, for the most part, without merit. The Bureau of Prisons is statutorily charged with the responsibility of providing for the care, subsistence, protection, instruction and discipline of federal prisoners. 18 U.S.C. § 4042 (1970). The Bureau has carried out this responsibility by creating programs to meet the needs of the inmates — be they physical, mental, or spiritual needs. In order to effectuate these programs the Bureau, of course, must hire professional staff — doctors, social workers, teachers, and clergymen. The Bureau cannot maintain a full complement of medical, educational, or religious professionals on the prison staffs, and a representative selection must necessarily suffice. The ordained clergymen on the federal payroll who serve as chaplains in the federal prison system are hired to provide for the spiritual needs of all prisoners, whatever their religious denomination, and they are not merely the emissaries of their respective churches. As Mr. Justice Brennan has written:

"There are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment. Provisions for churches and chaplains at military establishments for those in the armed services may afford one such example. The like provision by state and federal governments for chaplains in penal institutions may afford another example. It is argued that such provisions may be assumed to contravene the Establishment Clause, yet be sustained on constitutional grounds as necessary to secure to the members of the Armed Forces and prisoners those rights of worship guaranteed under the Free Exercise Clause. Since government has deprived such persons of the opportunity to practice their faith at places of their choice, the argument runs, government may, in order to avoid infringing the free exercise guarantees, provide substitutes where it requires such persons to be....

"Such activities and practices seem distinguishable from the sponsorship of daily Bible reading and prayer recital. For one thing, there is no element of coercion present in the appointment of military or prison chaplains; the soldier or convict who declines the opportunities for worship would not ordinarily subject himself to the suspicion or obloquy of his peers. Of special significance to this distinction is the fact that we are here usually dealing with adults, not with impressionable children as in the public schools. Moreover, the school exercises are not designed to provide the pupils with general opportunities for worship denied them by the legal obligation to attend school. The student's compelled presence in school for five days a week in no way renders the regular religious facilities of the community less accessible to him than they are to others. The situation of the school child is therefore plainly unlike that of the isolated soldier or the prisoner.

"The State must be steadfastly neutral in all matters of faith, and neither favor nor inhibit religion. In my view, government cannot sponsor religious exercises in the public schools without jeopardizing that neutrality. On the other hand, hostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion, the withholding of draft exemptions for ministers and conscientious objectors, or the denial of the temporary use of an empty public building to a congregation whose place of worship has been destroyed by fire or flood. ..." Abington School District v. Schempp, 374 U.S. 203, 296-299, 83 S.Ct. 1560, 1610, 10 L.Ed.2d 844 (1963) (concurring opinion).

The court concludes that the maintenance by the Bureau of Prisons of chaplains at the Atlanta federal...