Theriault v. Silber

• Citation: 453 F. Supp. 254
• Decision Date: 13 February 1978
• Docket Number: No. EP-72-CA-212.,EP-72-CA-212.
• Parties: Harry THERIAULT, a/k/a Shiloh, a/k/a Bishop of Tellus v. Frederick SILBER et al.
• Court: U.S. District Court — Western District of Texas

453 F. Supp. 254

Harry THERIAULT, a/k/a Shiloh, a/k/a Bishop of Tellus v. Frederick SILBER et al.

No. EP-72-CA-212.

United States District Court, W. D. Texas, El Paso Division.

February 13, 1978.

Harry W. Theriault, pro se.

Jamie C. Boyd, U. S. Atty., by Michael T. Milligan, Asst. U. S. Atty., El Paso, Tex., for defendants.

MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN H. WOOD, Jr., District Judge.

The United States Court of Appeals for the Fifth Circuit has directed this Court to "conduct further proceedings on the present record and on such a supplemental record as it and the parties initially deem proper to make more explicit findings of fact and conclusions of law" on what basis the District Court concluded as a Finding of Fact that Theriault's beliefs do not constitute a religion. Also the Appellate Court instructed this Court to reconsider what constitutes a religion "by a thorough study of the existing case law as well as an appropriate evidentiary exploration of philosophical, theological and other related literature and resources on the issue", this being "just the sort of thing" that "should be ventilated first in the Trial Court".

Before proceeding to a consideration of the new material submitted by Mr. Harry W. Theriault, specifically that submitted on January 20, 1977, and before confronting the issue of what constitutes a religion, an examination of the record compiled during the seven months' period following the beginning of trial on August 20, 1974 would seem to be appropriate.

The El Paso case, EP-72-CA-212, commenced on August 17, 1972 and evidence was being received as late as March 18, 1975. During the period from commencement of trial on August 20, 1974 to the entry of Final Judgment on March 18, 1975 various extensive Open Court hearings were held as shown by a 311 page Transcript documenting the proceedings. This Court received the Atlanta case, No. CA 13872, which had been ordered consolidated with the El Paso case, on March 17, 1975. The El Paso file, together with the records received from the Atlanta case, comprise two legal size cabinet drawers and consist of approximately 21 Volumes plus from eight to ten inches of other unfiled, but received papers. The record is made up of seven volumes of pleadings; one volume of plaintiff's exhibits; two volumes of defendants' exhibits; eleven volumes of Transcripts, mostly from the Atlanta case, and eight to ten inches of additional unfiled documents. Judgment was entered on March 18, 1975 dismissing this suit on the merits. Notice of appeal was filed on April 8, 1975. While this Court found then and still believes the monumental record in all of these consolidated cases demonstrates adequate ventilation of this "sort of thing", the Court of Appeals on April 29, 1977, over two years later, vacated the Judgment of this Court and remanded the case back for further "ventilation".

Using the nomenclature established by Judge Ainsworth in this very case styled Harry W. Theriault v. Norman A. Carlson, 495 F.2d 390, 1974, this would be labeled Theriault IV. In his Opinion in Theriault v. Carlson, supra, Judge Ainsworth outlined the history and the background of Harry W. Theriault and the organization called the "Church of the New Song". On June 18, 1970, in Theriault I, "Dr. Harry W. Theriault" and a fellow inmate, Rev. Jerry M. Dorrough, filed a First Amendment Action against the Catholic and Protestant Chaplains at Atlanta alleging various deprivations of their constitutional right to freely practice their religion. Dr. Theriault acquired his Doctor of Divinity Certificate through a mail order application. Theriault then, as the self-appointed Bishop of Tellus or Bishop of the Earth, ordained Dorrough First Revelation Minister of the "Church of the New Song" and conferred upon him in the Courtroom on the date of trial in 1970 the Decrees of Doctor of Divinity, Doctor of Philosophy and Bachelor of Philosophy. See Theriault v. Carlson, 495 F.2d 392 at Footnote 2.

After the Trial Court in Theriault I announced his intention to allow Theriault a "trial run" in holding his religious services at a final hearing in Atlanta held in January, 1972, several correctional officers and other prison officials from Marion, Illinois Penitentiary testified about various threats by Theriault of mass violence, veiled threats of murder, actual physical assault and battery of prison officers and destruction by Theriault of prison property. Theriault v. Carlson, supra, at page 392. One such incident occurred on April 1, 1971 following a request by Theriault to use the Chapel or Auditorium for the purpose of holding an organizational meeting:

"Theriault, an escape artist by his own admission, having several times broken away from Federal custody, was considered by prison officials to be a high escape risk. Moreover, he and his followers were known trouble makers. Theriault was told of the prison policy requiring permission from the Chaplain to secure a meeting place, and it was the Chaplain's duty to coordinate religious activities. Theriault declined to follow instructions and announced his intention to hold a meeting, warning prison authorities that if they used violence to break it up there would be bloodshed. Because of his threats, Theriault was placed in solitary confinement, to which he reacted by kicking the correctional supervisor. He later broke the bed from the cell wall, destroyed the toilet with a piece of angle iron, shoved the bed against the cell door and warned that he would kill anyone who attempted to enter." (Emphasis supplied) Theriault v. Carlson, supra, at page 393.

Theriault II, this case, was filed subsequent to the Atlanta hearing after Theriault was transferred to the Federal Penitentiary at La Tuna, Texas. The Complaint filed by Theriault was dismissed forthwith by the District Court for the Western District of Texas by the Hon. Judge Ernest Guinn and Theriault appealed. Theriault III was filed in the District Court at Atlanta wherein Theriault alleged a failure to comply with Judge Edenfield's ruling. A four day hearing was held in Atlanta resulting in a finding of contempt against Directors Carlson and Silber. See Theriault v. Carlson (Northern District of Georgia, 1973) 353 F.Supp. 1061. The Government appealed. On appeal Theriault III was overturned and the contempt finding was held to be an abuse of discretion and was reversed, annulled and set aside. See Theriault v. Carlson, 495 F.2d 390 (1974) at page 395. Theriault III was also vacated and remanded for a full evidentiary hearing and was consolidated with this case, Theriault II. After the hearings and compilation of the record as outlined above pursuant to the Order of the United States Court of Appeals for the Fifth Circuit in Theriault v. Carlson,¹ this Court, having inherited the case from the Hon. Judge Ernest A. Guinn at his death, dismissed the case with extensive and comprehensive accompanying Findings of Fact and Conclusions of Law. Approximately two years and one month later the case was vacated and remanded for "further ventilation . . . of appropriate evidentiary exploration of philosophical, theological and other related literature and resources", specifically referring to the materials submitted by Theriault to the Court of Appeals on January 20, 1977 which were filed in the District Court on July 8, 1977 as well as a copy of:

"The Living Gospel Of The New Song for the People of the Light" "In Fulfillment of the Prophecy `They sang a new song . . . for the healing of the nations.'" "(Book of Revelation, 5:9 and 14:3 and 22:2)" "An Inspired Text" "THE PARATESTAMENT in the New Language of the Church" "CHURCH OF THE NEW SONG Iowa City, Iowa 52240"

The Court has now considered these additional submissions of Harry W. Theriault as well as a number of religious encyclopedias such as the Encyclopedia of Religion and Ethics, James Hastings' edition, Volume 10 (Scrivener's Sons, 1951), the Universal Jewish Encyclopedia, the new Catholic Encyclopedia (Catholic University of America, 1967, the Encyclopedia of Islam, Lewis, et al. edition, E. J. Brill, 1965, as well as the King James version of the Holy Bible.

EXPLORATION OF PHILOSOPHICAL, THEOLOGICAL, AND OTHER RELATED LITERATURE AND RESOURCES

Before proceeding to an examination of the works of Harry W. Theriault, the Court will first examine the aforementioned resources and other materials with respect to the definition of religion. Implicit in such an examination is a study of what the religions say of themselves. Thus, each of the religious texts will, of course, take on the bias of its faith. The Judeo-Christian tradition, with which we are most familiar, recognizes the existence of a superior supernatural and all-powerful diety with a commensurate attitude of submission to that diety on the part of the practitioner or believer. Thus, a leading Protestant work, the Encyclopedia of Religion and Ethics, James Hastings Ed., Vol. 10, at page 675, states:

"It is true that there is in religion a characteristic submission (not necessarily an attitude of pacifity) to the supreme of the divine will—`Thy will be done.'"

This also refers to "dependence, prayer, sacrifice, necessity of moral behavior, etc" as important religious concepts. Ibid at page 678.

The Universal Jewish Encyclopedia, Volume 9, page 124, also points out this Supreme Being-creature relationship "of a creature overwhelmed by his nothingness in contrast to the overpowering, mysterious and supreme, Being". The text goes on to examine the origins of the term "religion" which originally was a latin word which Cicero explained as being derived from the latin verb "re-legre" which means to "care or practice", being the opposite of "neg-ligere" meaning "to neglect" and would thus entail "conscientiousness, scrupulousness, respect for what is sacred . . . devotion to the gods". Ibid at page 125. Other possible derivations are...