Appendix — Theriault v. Silber

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.

48-1106

DR. HARRY W. THERIAULT,

Petitioner,

-~against~

FREDERICK SILBER, Director, United

States Chaplain Service, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

JONATHAN A. WEISS

Counsel for Petitioner

2095 Broadway,

Room 304

New York, NY 10023

(212) 595-1340

January 12, 1979.

TABLE OF CONTENTS

TITLE PAGE

Theriault v. Silber . . . « « « « « A-1

5th Circuit (August 16, 1978)

(Dismissing Appeal)

Theriault v. Silber,- - « »« « « « e« A-5

Sth Circuit (May 16, 1978)

(Order)

Theriault v. Silber, «© «© «© «© «© ec © c« AMG

Western District of Texas

(February 10, 1978) (Decision)

Order Extending Time to File... A-38

Petition for Writ of Certiorari ;

Theriault Ve Carlson, . 6 2 & ©@.6@ ® A-39

Northern District Georgia

(February 25, 1972)

(Decision)

: THERIAULT v. SILBER

Dr. Harry W. THERIAULT,

Plaintiff-Appellant,

v.

Frederick SILBER, Director, United

States Chaplain Service, et al.,

Defendants-Appellees.

No. 78-1506.

United States Court of Appeals,

Fifth Circuit.

Aug. 16, 1978.

On appeal from a judgment of the

United States District Court for the

Western District of Texas, at El Paso,

John H. Wood, Jr., J., appellee moved to

strike appellant’s notice of appeal on

ground that it contained vile and insult-

ing references to trial judge. The Court

of Appeals, 574 F.2d 197, struck appel-

lant’s notice of appeal and gave appel-

lant ten days in which to file proper

notice of appeal. Following the filing of

second notice of appeal, the Court of Ap-

peals held that where appellant’s original

notice of appeal was stricken because of

vile and insulting references to trial

judge contained therein, appellant was

given ten days in which to file a proper

notice of appeal, but appellant then filed

1. The appellant, Theriault, purports to appeal

both for himself and one Jerry Dorrough.

Since Theriault is not a member of the bar of

this court his notice of appeal is effective only

for himself. Scarrella v. Midwest Savings and

Loan, 536 F.2d 1207 (8 Cir. 1976), cert. denied,

429 U.S. 885, 97 S.Ct. 237, 50 L.Ed.2d 166

(1976); McKinney v. DeBord, 507 F.2d 501 (9

Cir. 1974).

2. We did not include a copy of the notice of

appeal in our original order because we had

hdped that we could avoid publishing the ca-

lumnious document. Now that a comparison

between the original notice of appeal and the

second notice of appeal becomes necessary to

6752

an equally abusive document, appellant’s

appeal would be’ dismissed with preju-

dice.

Appeal dismissed with prejudice.

Federal Courts 666

Where appellant’s original notice of

appeal was stricken because of vile and

insulting references to trial judge con-

tained therein, appellant was given ten

days in which to file a proper notice of

appeal, but appellant then filed an equal-

ly abusive document, appellant’s appeal

would be dismissed with prejudice.

Appeal from the United States Dis-

trict Court for the Western District of

Texas.

Before THORNBERRY, GODBOLD,

and RUBIN, Circuit Judges.

BY THE COURT:

Upon the appellee’s motion, this court

struck the appeilant’s! notice of appeal

and appeal because the appellant’s notice

of appeal contained vile and insulting

references to the trial judge? This

court’s order is reported at 574 F.2d 197

the decision of the case, we feel compelled to

publish the two notices of appeal. The origi-

nal notice of appeal reads:

Notice is hereby given by the Plaintiffs-Peti-

tioners that they appeal the lying “Memo-

randim [sic] Opinion, Findings of Fact and

Conclusions of Law” so hatefully and unAm-

ericanly entered by the Dishonorable

“Judge” John H. Wood, Jr., at El Paso, Tex-

as, February 10, 1978, filed February 13,

1978, to the United States Court of Appeals

for the Fifth Circuit, this February 14, 1978,

so that a true decision can be entered as law

and justice require.

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1978, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-

cation constitute no part of the opinion of the court.

A-1

6753

(5 Cir. 1978).2 We gave the appellant

ten days in which to file a proper notice

', of appeal and directed him to the appen-

dix of forms in the Rules of Appellate

Procedure for a suggested notice of ap-

peal. Within the time allowed, the ap-

pellant filed a second notice of appeal;

however, the appellant apparently has

not taken this court seriously and has

filed an equally abusive document.

For failure to comply with the order

of this court, we therefore direct that

the appellant’s appeal be dismissed with

prejudice.

One of the most significant changes in

our judicial system has been the recogni-

tion that the law and the resolution of

conflict in the court should not turn on

the nicety of pleadings and the triumph

of form over substance. The modern

view is that courts decide cases based on

the merits of the issues and not from the

* pages of a writ book. This change is

nowhere more evident than in the Rules

3. The complete citation to the instant case is

Theriault v. Carlson, 339 F.Supp. 375 (N.D.Ga.

14721975), vacated and remanded, 495 F.2d 390,

5 (5 Cir. 1974), rehearing denied, 498 F.2d

e 1402, cert. denied sub nom. Theriault v. Silber,

419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279

(1974), on remand, 391 F.Supp. 578 (W.D.Tex.

8 1975), vacated and remanded, 547 F.2d 1279

(1977), rehearing denied, 551 F.2d 863, cert.

denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d

150 (1977), rehearing denied, 434 U.S. 943, 98

S.Ct. 441, 54 L.Ed.2d 396, appeal dismissed

pending proper notice of appeal, 574 F.2d 197

(5 Cir. 1978).

4. The second notice of appeal reads:

” By “Order” of this Court of Thornberry,

Godbold and Rubin, Circuit Judges, May 16,

1978, the plaintiffs-appellants were told to

re-give notice of appeal, because the fact

4 that District Judge John H. Wood, Jr., lied

pointblankly in the decision appealed, when

plaintiff Shiloh mentioned that fact as the

basis of this appeal, plaintiff Shiloh’s refer-

ence thereto is somehow “beneath the digni-

A-2

THERIAULT v. SILBER

of Civil Procedure which direct, “All

pleadings shall be so construed as to do

substantial justice.”5 Fed.Rules Civ.

Proc. Rule &(f). Moreover, this court

and others have recognized that those

unskilled in the law should not be held

to strict standards of pleading. Hence,

courts have developed the practice of lib-

erally construing pro se petitions and

pleadings.

Neither the modern view of civil

pleading nor the liberal pro se practice

of this court has done away with the

time honored notion that the law and

the courts of the United States are im-

portant parts of American society wor-

thy of respect. This court simply will

not allow liberal pleading rules and pro

se practice to be a vehicle for abusive

documents. Our pro se practice is a

shield against the technical requirements

of a past age; it is not a sword with

which to insult a trial judge. Any com-

plaint the appellant has about the con-

duct of the trial judge can be adequately

ty of this court,” according to the above

mentioned three judges, who so ruled to re-

inforce the cat and mouse game the govern-

ment is playing with plaintiffs at the ex-

pense of their human rights.

Using their right to freedom of speech to tell

the truth against the lying judge, who has no

right to lie like that in the name of the court

or law, etc., plaintiffs hereby again give no-

tice that they appeal to the 5th Circuit Court

of Appeals the lying decision of John H.

Wood, Jr., entered February 13, 1978, in this

case and purporting to overrule the Consti-

tution thereby. The grounds for this appeal

are that the said final decision and judgment

are based on the pointblank lies of John H.

Wood, Jr., and not on the Record herein and

the Constitution.

Today is May 23, 1978, and plaintiff request

that this court not lie, too.

5. See Cobb v. Lewis, 488 F.2d 41 (5 Cir. 1974)

for an example of our commitment to disre-

gard irregularities in the notice of appeal in

order to do substantive justice.

THERIAULT v. SILBER 6754

addressed in a civil manner in the appel-

lant’s brief. It is totally unnecessary to

make any reference to the trial judge or

the grounds of appeal in the notice of

appeal. See Form 1, Fed.Rules App.

Proc.

6. This is not the first time the appellant has

come to grief as a result of his behavior in the

United States courts. Theriault has been held

in contempt for calling a witness a “liar” and

for personal abuse of a trial judge in open

court. Theriault v. United States, 481 F.2d

1193 (5 Cir. 1973), cert. denied, 414 U.S. 1115,

94 S.Ct. 847, 38 L.Ed.2d 742 (1973); United

States v. Theriault, 474 F.2d 359 (5 Cir. 1973),

cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36

L.Ed.2d 960 (1973). At another trial, the trial

judge ordered that Theriault be shackled dur-

ing the trial. We upheld the trial court’s ac-

tion in United States v. Theriault, 531 F.2d 28)

(5 Cir. 1976), cert. denied, 429 U.S. 898, 97

S.Ct. 262, 50 L.Ed.2d 182 (1976), dist. ct. affd,

555 F.2d 460 (1977), cert. denied, 434 U.S. 870,

98 S.Ct. 212, 54 L.Ed.2d 148 (1977).

7. Theriault v. United States Court of Appeals

for the Seventh Circuit, 434 U.S. 953, 98 S.Ct.

493, 54 L.Ed.2d 321 (1977); Theriault v. Carl-

son, 339 F.Supp. 375 (N.D.Ga.1975), vacated

and remanded, 495 F.2d 390, 395 (5 Cir. 1974),

rehearing denied, 498 F.2d 1402, cert. denied

sub nom. Theriault v. Silber, 419 U.S. 1003, 95

S.Ct. 323, 42 L.Ed.2d 279 (1974), on remand,

391 F.Supp. 578 (W.D.Tex.1975), vacated and

remanded, 547 F.2d 1279 (5 Cir. 1977), rehear-

ing denied, 55) F.2d 863, cert. denied, 434 U.S.

871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977),

rehearing denied, 434 U.S. 943, 98 S.Ct. 441,

54 L.Ed.2d 306 (1977), appeal dismissed, 574

F.2d 197 (5 Cir. 1978); United States v. Ther-

jault, dist. ct. aff'd in part, vacated and re-

manded in part, 526 F.2d 698 (5 Cir. 1976),

after remand dist. ct. aff'd in part and remand-

ed in part, 531 F.2d 281, rehearing denied, 534

F.2d 1407, cert. denied, 429 U.S. 898, 97 S.Ct.

262, 50 L.Ed.2d 182 (1976), dist. ct. aff'd, 555

F.2d 460 (1977), cert. denied, 434 U.S. 870, 98

S.Ct. 212, 54 L.Ed.2d 148 (1977); Theriault v.

Pittman, 423 U.S. 818, 96 S.Ct. 155, 46 L.Ed.2d

114 (1975); Theriault v. Pittman, 423 U.S. 854,

96 S.Ct. 101, 46 L.Ed.2d 78 (1975); Theriault v.

Pittman, 420 U.S. 989, 95 S.Ct. 1437, 43

L.Ed.2d 650 (1975); Theriault v. Carlson, 353

F.Supp. 1061 (N.D.Ga.1973), reversed, 495

F.2d 390, 395 (5 Cir. 1974), cert. denied sub

nom. Theriault v. Silber, 419 U.S. 1003, 95

By failing to file a proper notice of

appeal after this court directed that one

be filed, the appellant has demonstrated

his utter contempt for this court and the

law.6 This appellant has been involved

in numerous other lawsuits’ and there

S.Ct. 323, 42 L.Ed.2d 279 (1974); Theriault v.

United States Court of Appeals for the Sev-

enth Circuit, 416 U.S. 980, 94 S.Ct. 2414, 40

L.Ed.2d 777 (1974); Theriault v. Bartels, 415

U.S. 979, 94 S.Ct. 1567, 39 L.Ed.2d 875 (1974);

Theriault v. United States, 481 F.2d 1193 (5

Cir. 1973), cert. denied, 414 U.S. 1114, 94 S.Ct.

847, 38 L.Ed.2d 742 (1973); Theriault v. United

States, 481 F.2d 1193 (5 Cir. 1973), cert. de-

nied, 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d

742 (1973); Theriault v. United States, dist. ct.

reversed and remanded, 440 F.2d 713 (5 Cir.

1971), dist. ct. aff'd, 474 F.2d 359 (5 Cir. 1973),

cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36

L.Ed.2d 960 (1973); Theriault v. United States,

sentence vacated and case remanded, 434 F.2d

212 (5 Cir. 1970), cert. denied, 404 U.S. 869, 92

S.Ct. 124, 30 L.Ed.2d 113 (1971), aff'd, 467

F.2d 486 (1972), cert. denied, 411 U.S. 984, 93

S.Ct. 2280, 36 L.Ed.2d 961 (1973); Theriault v.

Establishment of Religion on Taxpayers’ Mon-

ey in the Federal Bureau of Prisons, 411 U.S.

946, 93 S.Ct. 1937, 36 L.Ed.2d 418 (1973);

Theriault v. Silber, 405 U.S. 1048, 92 S.Ct.

1328, 31 L.Ed.2d 590 (1972); Theriault v. Unit-

ed States, 447 F.2d 1361 (5 Cir. 1971), cert.

denied, 404 U.S. 1064, 92 S.Ct. 750, 30 L.Ed.2d

752 (1972); Theriault v. United States Court of

Appeals for the Seventh Circuit, 404 U.S. 936,

30 L.Ed.2d 269 (1971); Theriault v. Pittman,

404 U.S. 952, 92 S.Ct. 156, 30 L.Ed.2d 269

(1971); Theriault v. Mississippi, 404 U.S. 818,

92 S.Ct. 156, 30 L.Ed.2d 119 (1971); Theriault

v. Harris, 404 U.S. 870, 92 S.Ct. 125, 30

L.Ed.2d 113 (1971), 403 U.S. 923, 91 S.Ct.

2238, 29 L.Ed.2d 702, rehearing denied, 404

U.S. 877, 92 S.Ct. 34, 30 L.Ed.2d 125 (1971);

Theriault v. Blackwell, 437 F.2d 76 (5 Cir.

1971), cert. denied, 402 U.S. 953, 91 S.Ct. 1637,

29 L.Ed.2d 122 (1971); Theriault v. Daggett,

401 U.S. 983, 91 S.Ct. 1205, 28 L.Ed.2d 335

(1971); Theriault v. United States, 401 U.S.

983, 91 S.Ct. 1205, 28 L.Ed.2d 335 (1971);

Theriault v. United States, 409 F.2d 1313 (5

Cir. 1969), cert. denied, 396 U.S. 933, 90 S.Ct.

274, 24 L.Ed.2d 231 (1969); Theriault v. United

States, 402 F.2d 792 (5 Cir. 1968), cert. denied,

395 U.S. 965, 89 S.Ct. 2110, 23 L.Ed.2d 75)

»

6755 THERIAULT v. SILBER

~can be no doubt that he is as familiar

with court practice as almost any lay-

man. It is therefore our conclusion that

«the appellant’s failure to file a proper

(1969), rehearing denied, 396 U.S. 870, 90 S.Ct.

42, 24 L.Ed.2d 128 (1969); Theriault v. Peek,

406 F.2d 117 (5 Cir. 1968), cert. denied, 394

U.S. 1021, 89 S.Ct. 1644, 23 L.Ed.2d 47 (1969);

Theriault v. United States, 268 F.Supp. 314

(W.D.Ark.1967), aff'd, 401 F.2d 79 (8 Cir.

notice of appeal must result in his appeal

being dismissed with prejudice.

APPEAL DISMISSED WITH PREJU-

DICE.

1968), cert. denied, 393 U.S. 1100, 21 L.Ed.2d

792 (1969), rehearing denied, 394 U.S. 939, 89

S.Ct. 1201, 22 L.Ed.2d 474 (1969); Thenault v.

Mississippi, 433 F.2d 990 (5 Cir. 1970); Ther-

jault v. Mississippi, 390 F.2d 657 (5 Cir. 1968).

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

Dr. Harry W. THERIAULT,

Plaintiff-Appellant,

Vv.

Frederick SILBER, Director, United

States Chaplain Service, et al.,

Defendants-Appellees.

No. 78-1506.

United States Court of Appeals,

Fifth Circuit

May 16, 1978

Dr. Harry W. Theriault, pro se.

Jamie C. Boyd, U. S. Atty., San Antonio,

Tex., Michael T. Milligan, Sp. Asst.

U.S. Atty., El Paso, Tex., for defendants-

appellees.

Joseph S. Blair vro se, amicus curiae.

Appeal from the United States District

Court for the Western District of Texas.

Before THORNBERRY, GODBOLD AND RUBIN,

Circuit Judges

ORDER

The appellee moves to strike the

appellant's notice of appeal and dismiss

the appellant's appeal in the instant case

because the appellant's notice of appeal

contains vile and insulting references

to the trial judge. We have examined

the notice of appeal and agree that it

contains disrespectful and impertinent

references to the trial judge. See

Rule 12(f), F.R. Civ. P. Such documents

are beneath the dignity of this court.

Nothing in our liberal pro se practice

dictates that this court receive

abusive documents. The appellee's

motions to strike the notice of appeal

and dismiss the appeal are therefore

GRANTED. Appellant has ten days from

the issuance of this Order to file a

proper notice of appeal. If he does so,

his appeal and motion to appoint counsel

will be reinstated. The appellant is

further directed to Rule 3(c). Rules

of Appellant Procedure and Form 1 in

the appendix of forms of the appellant

rules for a suggested form for notice

of appeal.

IT IS SO ORDERED

IN THE DISTRICT COUR? OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

HARRY THERIAULT, AKA SHILOH

AKA BISHOP OF TELLUS

EP-72-CA-212

V.

FREDERICK SILBER, ET AL.

MEMORANDUM OPINION, FINDINCS CF FACT AND

CONCLUSIONS OF LAW

The United States Court of Appeals

for the Fifth Circuit has directed

this Court to "conduct further proceed-

ings 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 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 weli as

an appropriate evidentiary exploration

of philosophical, theological and other

related literature anc 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 commence-

ment of triai on August 20, 1974 to

the entry of Final Judgement on March 18,

1975 various.extensive Open Court hearings

were held as shown by a 3ll page Transcript

documenting the proceedings. This Court

received the Atlanta case, No. CA 13872,

which had been ordered consolidateec with

the El Paso case, on March 17, 1975.

The El Paso file, together with the re-

cords received from the Atlanta case,

comprises two legal size cabinet drawers

and consist of approximately 21 Volume

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 con-

solidated 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. 2a 390, 1974, this would be laheled

Theriault IV. In his Opinion in Theriault

v. Carlson, supra. Judge Ainsworth out-

fined 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 Bi-

shop 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

A-10

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 reaquiring permission

from the Chaplain to secure a meeting place

and it was the Chaplain's duty to coordi-

nate religious activities. Theriault

declined to follow instructions and announ-

ced his intention to hold a meeting warnin

prison authorities that if they used vi-

Olence to break it up there would be blood-

shed. Because of his threats, Theriault was

placed in solitary confinement, to which

he reacted by kicking the correctional sup-

ervisor. 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 he would

kill anyone who attemvted to enter. =

caste 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 dis-

missed forthwith by the District Court

for the Western District of Texas by

the Hon. Judge Frnest Guinn and Theriault

appealed. Theriault III was filed in

the District Court at Atlanta wherein

Theriault alleged a failure to comniv

with Judge Edenfield's rulina. A four

A-11

day hearing was held in Atlanta resulting

in a finding of contempt against Direct-

ors Carlton and Silber. See Theriault

v. Carlson (Northern District of Georgia,

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 - 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!

this Court, having inherited the case

from the Hon. Judge Ernest A. Quinn at

his death, dismissed the case with exten-

sive and comprehensive accompanying Find-

ings of Fact and Conclusions of Law.

Approximately two years and one month

later, the case was vacated and remanded

for "further ventilation . .. of appro-

priate evdentiary exploration of philo-

sophical, theological and other related

literature and resources", specifically

referring to the materials submitted

by Theriault to the Court of Appeals on

Janua 20, 1977 which were filed in

the Brstrict Court on July 8, 1977 as

well as a copy of:

"The Living Gospel

of

The New Song

for

The People of the Light"

1/ 495 F. 2a 393 (1974)

A-12

"Ir, Pullfillment 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 PARATFSTAMENT

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

(Scrivner's sons, 1951), The Universal

Jewish Encyclopedia, the new Catholic

Se edie (Catholic University of

America, 1967), the Encyclovedia of

Islam, Lewis, et al. edition, F. J. Brill,

1965, as well as the King James version

of the Holy Bible.

EXPLORATION OF PHILOSOPHICAL, THEOLOG-

ICAL AND OTHER RELATED LITERATURE AND

RESOURCES

Before proceeding to an examination

of the works of Harry W. Theriault,

the Court will first examine the afore-

mentioned resources and other materials

with respect to the definition of re-

ligion. Implicit in such an examination

is a study of what the religions say of

themselves. Thus, each of the religious

texts will of covrse, take on the bias

A-13

of its faith. The Judeo-Christian tra-

dition, with whick we are most familiar,

recognizes the existence of a superior

Supernatural and all-powerful diety.

a commensurate attitude of submission to

that diety on the part of the practition-

er 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 necessar-

ily an attitude of pacifity) to the su-

preme of the divine will -- 'Thy will

be done.'"

This also refers to "dependence, prayer,

sacrifice, necessity of moral behavior,

etc" as irportant 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, myster-

ious 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 heing

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 "con-

scientiousness, scrupulousness, respect

for what is sacred . . . devotion to

the gods". Ibid at page 125. Other

possible derivations are discussed in

the same text. The Jewish Encyclopedia

goes on to conclude that a religion will

then develop into a community, congrega-

A-14

tion or church with a cult of ritual and

ceremony, code of morality or standards

of law and discipline for the group with

a creed of beliefs with respect.to Goce.

Ibid at page 126

The New Catholic Encyclopedia aaain

reaffirms the concept of the Supreme

Diety in religion in its concept of

"the sacred". New Catholic Encyclopedia,

Volume 12, at page 240. “Sacred” is

explained as an "essentially ambivalent

character which makes man feel that one

is irresistably attracted by its gran-

deur and frightened by its superiority”

Ibid , at page 241. Again, the attitude

of dependence upon the "sacred"...

"a reality superior to man, a reality

that is beyond the control of man's will

and all of the forces of nature". Ibid

at page 241. The New Catholic Encyclopedia

goes on to discuss the topics of prayer,

devotion, ritual, priesthood and other

religious attitudes with respect to

this sacred supreme reality.

The Encyclopedia of Islam dis-

tinguishes between din (religion)

and dawla (government,politics) and

sets forth that Moslems nevertheless

believe that their religion is also

a form of government. Encyclopedia of

Islam , Lewis, et al. edition, FE. J. Brill,

, Volume 2, Page 295. In the discussion

of din, the Encyclopedia of Islam points

out the following: "Religio [sic] -evokes

primarily that which binds man to God; and

din, the obligations which God imposes

upon His ‘reasoning creatures'. Now,

the first of these obligations is to

submit to God and surrender oneself to .

Him since the definition or the etymological

A-15

ee ee ee ee

sense of Islam is 'the surrender of self

(to God) , e ° ° e ws

The concept of the Supreme Being,

Supreme Diety or Supreme reality is the

most familiar and perhaps easiest to

understand for those of us in the Judeo

Christian tradition. The pre-eminence

of this concept and understanding of

religion is of considerable historic

significance in the United States.

The Declaration of Independence stated:

"We hold these truths to be self-

evident, that all men are created ecual,

that they are endowed by their creator with

certain inalienable rights, that among

these are life, liberty and the pursuit

of happiness. That to secure these

rights, governments are instituted

among men deriving their just powers

from the consent of the governed." .

Declaration of Independence, U.S.C.A.

Constitution, Article I, Section 1 to

Section 8, Clause 3, at Page 2.

While this belief in a Supreme Being

or Creator may be pervasive in our

society this belief cannot be sustained

as a distinguishing characteristic of

religion. In United States v. Seeger,

85 S. Ct. 850, 865 (1965), Mr. Justice

Douglas in his Concurring Opinion in

that case pointed out the insufficiency

of a belief in a Supreme Being and a

concept of a personal God in the writing

of Hinduism and Buddhism.

In examining the materials submitted

by Harry W. Theriault to the Appellate

Court, it is important to note in Mr.

Theriault's writings which he entitles

A-16

"The Paratestament" or "The Living Gospel

of the New Song” that Mr. Theriault

does not simply allege to hold a concept

of a Supreme Being or Diety wr the vaguer

concepts of reality or God as outlined

by Hinduism and Buddhism, but rather

claims to be Jesus Christ. In his

Paratestament, Chapter 7, Versus 6 through

52, note particularly Verse 9:

"So they began to call me Jesus; and my

fame spread with this name, and reached

King Herod's ears; and his soliders were

after me, and so were Governor Pilate's

publicans, and especially the high priest

of Palestine."

Verse II then states:

"After this, I had gone throughout -

the whole territory of the Jordan river,

preaching; Repent, and you are forgiven."

Verse 45 states:

"I remember saying, Eli, Eli, Iama

sabachthani." (These are the words

of Jesus Christ as he died on the

Cross as recorded in the New Testament.)

EXISTING CASE LAW

As indicated above, the threshold

issue before this Court to decide is

"whether the beliefs professed by

[petitioners] . . . are sincerely held

and whether they are, in [their] own

scheme of things, religious.”

A-17

+ oie +

a

See United States v. Seeger, 380

U. S. 163, 185, as cited by the Fifth

Circuit of Avpeals in Theriault 1 and IT.

2/In the Seeger case involving consci-

entious objections to war and violence,

the test of what was meant by “religious

traininc and belief so as to embrace all

religious and to exclude essentially vo-

litical, socioloagical or philosovhical

views" (Seeger, sunra, at page 165)

was whether such "belief that is sincere

and meaningful occupies a place in the

life of its possessor parallel to that

filled by the orthodox belief in God".

(Seeger, supra, at page 166)

It should be noted that in the con-

scientious objector cases the eliefs

held by petitioners were in oppositicn to

violence and war in contrast to the

violence and destructiveness of plaintiff

in this case.

In view of the "long list of court

actions to which [petitioner] is a party,

some of which are still pending, as well

as the lenathy »orison record which he

has established over the years," this

Court will employ "sharp and careful

scrutiny of his activities, including

his claim of religious sincerity."

See Theriault 1 and II, Sth Cir. 1974,

495 F. 26 at page 394. For, as reiterated

by the Fifth Circuit in Theriault 1 and IT,

Supra, at page 394, "First Amendment

freedoms are not absolute. They are

properly restricted when a sufficiently

important governmental interest appears.

ae States v. O'Brian, 391 U.S. 367,

2/ See Supra, (495 F. 2d at p. 395)

A-18°

Further, this Court recoanizes, as does

the Fifth Circuit in Theriault I and II,

supra, at vo. 395, the difficulty in

establishing satisfactory and precise

standards by which to judge the hona

fides of netitioner's alleged religion.

Whatever the difficulties are, they

Co not, by their existence, obviate the

necessity of deciding the issue nor

do they provide an impenetrable obstacle

"to denials of First Amendment protection

to so-called religions which tend to mock

established institutions and are obviously

shams and absurdities and whose members

are patently devoid of religious sin-

cerity. . ." Theriault I and II, sunra,

at p. 395.

Several facts developed during

the proceedings had at Atlanta in the

case of Theriault v. Carlson, 339 F.

Supp. 375, anc succinctly restated by

the Fifth Circuit in Theriault I and II,

are relevant to this Court's consideration

herein. Among these are:

1. That "the Felatarian faith, or

Church of the New Song, was

originally founded by Theriault

and Jerry M. Dorrougn at the

federal penitentiary at Atlanta,

Georgia, allegedly as the result

of visions exnerienced by Theriault

at the Marion, Illinois federal

penitentiary in which he received

prophetic messages from ‘Mclat'

informing him that he was the

"Eclatarian Nazarite' and directine

him to establish the Church of the

New Song.” Theriault I and II,

supra, footnote l, p. 391;

3/ Supra at p. 391, Footnote 1.

A-19

a Bee Pt *

That "Theriault acquired his

Doctor of Divinity certificate

through a mail order application.

Theriault then, as self-apvvointed

"Bishop of Tellus' ordained

Dorrough First Revelation Minister

of the Church of the New Sona. ."

supra, footnote 2, p. 392;

That when Theriault "and Dorrough

decided to file this complaint

(in the U. S. District Court for

the Northern District of Georgia,

Theriault, et al. v. Carlson, et

al., supra) they needed the proper

caption. Dorrough came forward

with his suggestion which they

adepted: ‘you put yourself down,

you be the head of the church,,

[sic] that's the Bishop, you put

yours, and put me down as the

First Minister," supra, footnote

3, Pe 392;

That the "Eclatarian faithful,

aside from one secretary, are

to be found only in the feceral

penitentiaries of Atlanta and

Marion." Theriault, 339 F. Supp.

375, 377 N.3. Of course, now

the federal penitentiary at La

Tuna, ‘texas can be added to the

list as the petitioner Theriault

is now incarcerated there;

That "at the final hearing at

Atlanta held in January, 1972,

several correctional officers

and other prison officials from

the Marion, Illinois

A-20

’

penitentiary testified about various

threats by Theriault of mass violence,

veiled threats of murder, actual

physical assault and hattery of

prison officials, and destruction

by Theriault of prison property."

Theriault I and II, supra, 495 F.,

2d at vo. 392;

To this incomplete, but represent-

ative, list of relevant factors can

be added Theriault's conviction

before this Court by a Jury of

assault on federal officers and

destruction of government property

arising out of an incident occurring

during Theriault's transfer to the

Federal Penitentiary at La Tuna, Texas,

during which Theriault, handcuffed

and confined by legirons,[sic] vaulted

over the back seat of the aovernment

vehicle in which he was being trans-

ported by Federal officers and, by

jamming his feet through the steering

wheel of the vehicle, caused it to

proceed out of control and overturn

injuring the federal officers so

transporting him;

That Harry W. Theriault claims to he,

among other things, the seconde Messiah,

the Rishop of Farth (Tellus) (See

generally Paratestament, Theriault)

supra; and

That in the document submitted by

Harry W. Theriault he claims that

he would have established a new

World order by 1976.

A-21

a

Rate owe

.

ae he

Oe

The Court has examined all of the

Gocurents, testimony anc records made

of recore in the instant case tocether

with the evidence presented at the various

hearings had herein ane the arquments

of all varties and finds the netitioner's

contentions to be lackina.

The Church of the New Sono anvears

not to be a reliacion, but rather as

a masquerade designed to obtain First

Amenéement protection for acts which

otherwise would he unlawful and/or

reasonably disallowed by the various

prison authorities hut for the attempts

wnich have been and are heinc made to

Classify them as "relicious” and, there-

fore, presumably vrotected hy the First

Amendment.

Rather than urging uvon its followers

any particular theolocy or philosophy

of life, the Church of the New Song

appears to enccurage a relatively non-

structured and free-form, do-as-vou-please

philosovhy, the sole purpose of which is

to cause or encourage disruption of

estab ished prison discipline tor the

sake of disruption. Yisruption o* and/or

problems for prison authorities is not

the result of this so-called relicion;

it is rather the underlying vurnose of

it. For example, the "Church's" one

attempt at a paschal type feast vroduced

a tongue-in-cheek request for prison

authorities to supply steak and wine.

Further, as Warden Riashy has cestifiedc,

the services which petitioner's followers

were allowed to hold at the Atlanta

penitentiary were nothing more than

"gripe sessions" designed to attempt

to gain advantages over other inmates

not belonging to the "group" and were tor.

tally lackina in anything approaching .:

religious content.

Petitioner and his cohorts have

formed an organization whose purvose

is to improve the position of memher

prison inmates vis-a-vis the prison

administrations. To ohtain leveraae

for the organization and to enable it

to operate more freely within the

Federal Penitentiaries, petitioner has

christened it a "religion" and endowed

it with the trappings thereof. Thus,

it is that the unmistakeable stench

of the skunk is found emating from

that which petitioner has declared

a rose.

the Fifth Circuit has held that

some standards must be applied to

determine the legitimacy and validity

of a "religion" and has recommended

that such standards be applied with

sharp and careful scrutiny to petitioner's

"Church of the New Song". The exclusively

political and non-religious nature of

the doctrine of the "Church of the New

Sona" as that doctrine has developed

in the writings of the petitioner over

the past three years, together with the

violent and raucous tone of its services

at the Atlanta Penitentiary, indicate

that the "Church" has totally failed

the "trial run" test which it received

inthe Northern District of Georgia

three years ago.

The professed belief of Mr. Theriault

that he is the second Messian (Para-

testament, Theriault, Chap. 7, V.1-114)

appears to this Court to be insincere :

and, like the rest of the actions of the

A=-23

——— ee

petitioner, are "essentially political,

sociological and vhilosophical”. The

professed views of Mr. Theriault that

he “would have established a new “World

order" with Harry "I. Theriault as the

head of the Order (see generally Para-

testament, Theriault) supra noi Pee

opinion of the Court, more clo:

roa ao the megalomania of Adolph Hitler

and the Nazis or Charles Manson and

his "family" than any “belief... that

‘occupies a place’ parallel to that F

fillea by the orthodox belief in God".

The First Amendment to the United

States Constitution states that "Congress

shall make no law respecting an establish-

ment of religion or prohibiting the free

exercise thereof". In interpreting the

Amendment, the Courts have recocnized

with respect to prisoners' religious

freedom that:

"Although the law acknowledaes a

prisoner's ‘forum of conscience’

deserving of protection, Remmers v.

Prewer, 494 F. 2a 1277 (8th Cir. 1974)

Tt also recognizes that a_person, in or

out of prison, may not, in the name

of religion, become a law unto himself.

Re we said in Fvans v. Ciccone, [377 F.

2a 4(8th Cir. 1967); ‘Freedom of religion.

can never mean... freedom to flagrantly

disregard reasonable rules of conduct in

or out of prison'. 377 F. 2d at 6.

(Emphasis supplied.) Proffitt v. Ciccone,

506 F. 2a 1020 (1974).

"Tt has never been held that upon

entering a prison one is entirely bereft

of all his civil rights and forfeits

every protection of the law.'" Sewell

A-24

v. Pegelow, 291 F. 2d 196, 198 (4 Cir., 1961)

See also Pierce v. La Vallee, 293 F. 2d 233

(2 Cir. 1961).

This statement was cited with approval

in the case of Brown v. Peyton, 437 F,. 2d

1228 (4th Cir., »- wudace Winter,

writing for the majority of the Three

Judge Panel and also citing Coover v. Pate,

378 U. S. 546, 84 S. Ct. 1733, I2 t. Fd.

24 10390 (1964) went on to affirm:

"These cases clearly establish that

a prisoner does not shed his first amendment

richts et the prison portals.”

In Brown, the majority pointed out that:

"While.first amendment rights are

‘preferred"” rights, nonethelees, they are

not unlimited. The state may restrict

religious acts if it can be shown that

they pose ‘some substantial threat to

public safety, peace or order,’ and that

there is a ‘compelling state interest

in the *** regulation.’ Sherhbert v. Verner,

374 U. S. 398, 493, 83 S. Ct. 1790, 1793,

10 L. Ed. 24 965 (1963)."

Judge “inter pointed out certain State

interests upon which prison authorities

may justify repression or restriction

of First Amendment rights of prisoners.

They included:

1. Prison officials have to confine

dangerous men in unpleasant circumstances.

A-25

-

-_

— ee

2. They must protect the public at

large, prison employees and also other

prisoners, who are almost totally denen-

dent on the prison for their well being.

3. Prison authorities have a

lecitimate interest in the rehabilitation

of prisoners.

4. The State has an interest in

reducing the burden and expense of

administration.

The majority in Brown also noted that

“many restrictions on First Amendment

rights are undoubtedly justifiabie as

part of the punitive regimen of a prison:

confinement itself, for example, prevents

unlimited communication with the outside

world but is permissible in order to

punish and deter crime; .. ." Brown,

supra, at page 1231.

The Court in Brown held that the

"burden of proving [paramount state

interests) rests on the state". This

Court agrees.

Turning to the case at Rar. The

petitioner, Harry W. Theriault, is

@parently requesting (assuming that his

political activities are entitled to

the status of a religion) the following

relief;

1. To form a seminary to train his

ministers. (R. Vol. VI Tr. l,

11-70-71, Pp. 145-146)

A-26

5.

To preach the "Fclatarian Demar-

date of Natural Rights”, in-

cluding the richt to pursue

happiness. (Td. po. 147-148)

To wéar a beard because of

the awe and respect that it

inspires in his followers.

(Id. pp. 149-150)

The right to corresponée with

such figures as Jane Fonda,

Lewis Wolfson, Sam Bataglia

and Felix Alderisio (the

last two individuals alleged

to be Mafia figures in the

Government's brief) as well

as his fellow prisoners, all

for the purpose of soliciting

financial contributions.)

(Id., pp. 151-165)

The right to hold meetings

where he presides uvon short

notice without approval of

prison authorities. Theriault

stated that he demanded in one

instance immediate access to

the Chapel at La Tuna and when

his demand was not met he

broke down the door of the

chapel. (Id., pp. 50-54)

The record is replete with

the actions of Mr. Theriault

which indicate to this Court

that Mr. Theriault wants all

the privileges of a chaplain

rather than an inmate of

the institution wherein he

resides.

A-27

As was stated hy Judage J. Marshall

in Hundley v. Sieloff, 407 F. Suvv. 543,

545 (1975) in another case involvine

Mr. Theriault's organization:

"In Cruz v. Reto, 405 .S, 319,

92, S. Ct. 1079, 3I LL. Fa. 2d 263 (1972)

(ver curium), the court in considering

the claims of a Buddhist wrisoner who

Claimed he was punished for vracticina

his religion, stated that not

‘every religious sect or group

within a wrison - however few in

number - must have identical facili-

ties or versonnel. A snecial

chavel or place of worshin need

not be vrovided for every faith

regardless of size; nor must a

chaplain, priest, or minister he

provided without recard to the

extent of the demand. Rut reason-

able opportunities must he afforded

to all prisoners to erercise the

relicious freedom guaranteed bv

the First and Fourteenth Amendments

without fear of penalty.’ 405 U.S.

at 322 n. 2, 92 S. Ct. at 1981.

"Mr. Chief Justice Burger, concurring,

stated further that,

"There cannot possibly he any con-

stitutional or lecal reauirement that the

government provide materials for every

religion and sect practiced in this

diverse country. At most, Buddhist

materials cannot be denied to prisoners

if someone offers to sunply them.' 405

U.S. at 323, 92 S. Ct. at 1082."

A-28

In conformity with Cruz, supra,

it appears to this Court that Petitioner's

demand for seminary facilities, the riaqht

to exercise unfettered authority over the

prison chavel, and the right to all of the

orivileges of a prison chaplain should

be, and the same are hereby, in all things

DENIED in light of the compelling State

interests heretofore enumerated. Fven

if the so-called "Church of the New Sona"

is in fact a religion (which it obviously

is not), reasonable and necessary restraints

and requlations may he imposed »y the

penal institution on all of its inmates.

To give a prisoner who is an admitted

escape artist and who has heen convicted

of assault and battery on corrections

officers the unrestricted freedom which

he demands would make a mockery of the

corrections system and would afford him

privileges not available to other inmates,

unless they joined his union.

Reasonable State prison requlations

as to personal hygene [sic] and qrooming

have long been upheld in this Circuit.

See Brooks v. Wainwright, 428 F. 2d 652

(Sth Cir., 1970). Such requlations

have keen sustained in other Circuits

as well. See e.g. Proffitt v. Ciccone,

506 F. 2d 1020 (8th Cir., 1974); Pinehart

v. Brever, 491 F. 2d 705 (8th Cir.,

Lay, J., aissenting).

The general rule is that Courts

should not interfere in the internal

management or functions of State prisons.

In the recent case of Fill v. Fstelle,

537 F. 2d 214 (5th Cir., 1976) the Fifth

Circuit upheld the decision in Brooks in

a per curium opinion:

A-29

ee

"In Brooks we stated that haircut and

shaving requlations in a state prison

did not violate the inmates' free dom of

exoression, or due process of law." Hill,

supra at p. 215.

This Court agrees with the rationale of

Hill ané under the senaration of nowers

would not interfere with the duty of

the Fxecutive Branch to administer

the prisons "where prisoner reoulations

are neither unreasonable nor arbitrary"

with resvect to hair lenoth or heards.

Hill, suvra, 537 F. 2d at p. 215. See

also Williams v. Hoyt,556 F. 2c 1336

at 1339 (5th Cir., 1857). Accordinaly,

petitioner's demand for the riqht to

grow his beard is herehev DFNTFN,

The denial of Petitioner's demand

to espouse in prison his particular

creed of the "Eclatarian Demandate °

of Natural Rights" cannot he held

by this Court to he an unconstitutional

abridaement of the First Amendment.

When dangerous felons are involved,

it has heen held that even the refusal

of prison authorities to allow a high-

risk orisoner to attend chapel, much

less the right to "preach" to fellow

inmates, is not a denial of First

Amendment rights. Sharp v. Sigler

408 F. 2d 966 (8th Cir., 1969). ‘The

Court states in Sharp v. Sigler at

page 970:

"While freedom to helieve is

absolute, the exercise of relicion is not."

A-30

It has also been held that:

"Laws are made for the government

of actions, and while they cannot

interfere with mere religious helief

and ovinions, they may with practices,'

Reynolds v. United States, 98 U. S.

Iq, 166, 25 LG. rade 244 (1879),"

The "gosvel" Mr. Vheriault espouses

proclaims a new World Order with a new

"bishoo of the earth" - Harry W. Theriault.

(See generally Paratestament, Theriault)

Supra. Mr. Theriault has heen convicted

of escape involving assault of federal

officers. Theriault v. United States,

409 F, 2a I313 (5th Cir., 19695) (reversed

as result of change in insanity law while

case pending appeal) wherein Mr. Theriault

leaped from the back seat of a Deputy

Marshal's car, obtained tne Marshal's

gun, thereby gaining control over the

Marshals and then abandoned the Marshals

in the country chained to a tree. Fxcept

for the resourcefulness of the Marshals,

Mr. Theriault's actions could have re-

sulted in their deaths. Mr. Theriault

has been found cuilty of escape and

assault in another case involving quite

similar circumstances. See United States

v. Theriault, 531 F. 2d 281 (5th Cir.,

1976).

Theriault again leaped from the hack

seat of a Marshal's car causing the

wreck of the government automohile and

injuring both Marshals. Apparently,

at least four United States Deputy Marshals

have come near death due to the violent

actions of the Petitioner. The Appellate

Court in the second escape case noted the

prior contempt convictions of the

A-31

Petitioner in upholding the Trial

Judge's refusal to remove Petitioner's

shackles during Courtroom prceceedings.

The contemptuos acts on the part of

Theriault "included the use of foul

language and calling a witness a liar, and

we noted a communication from apnellart

(petitioner herein) to the trial judge

that threatened ‘another Attica' escape

and bloodshed". 351 F. 2d at 284. ‘The

dangerous propensities of the petitioner

toward assault and violence have heen

established on numerous occasions.

This Court finds that to allow

petitioner to preach his "Doctrine"

of violence, bloodshed and rebellion

against authorities and to corresnond

with whomever he desires without proper

surveillance would constitute "a clear

and present danger of a breach of prison

security or discipline or some other

substantial interference with the

orderly function of the institution".

Knuckles v. Prasse, 435 F. 2d 1255,

1256; Long v. Erker 3rd Cir., 399 F. 2d

816, 820,

Accordinaly, Petitioner's claims

for relief in his First Amendment action

and subsequent pleadings, whether or

not his beliefs constitute a "religion",

are hereby in all things DENIED.

Therefore, having considered

the entire record in all of these

consolidated cases, the arauments of

counsel. and the applicable law, including

a thorough exploration and study of.

"philosophical, theological, and other

related additional literature and re-

sources on the issue” of religion, vel

A-32

non, and having once again further

"ventilated this sort of thing", vract-

ically to the point of hyperventilation,

the Court makes the following "more

explicit" additional Findings of Fact

and Conclusions of Law.

A-33

ee :

FINDINGS OF FACT

1. Early in 1971, while

incarcerated at the Federal Peni-

tentiary at Atlanta, Georgia,

petitioner, Harry W. Theriault,

and Jerry M. Dorrough formed an

organization among their fellow

prisoners and denominated it the

"Church of the New Song". Over

the past five years the

organization has met with some

small success within State

and Federal prisons, but has

been of negligible appeal outside

of prison.

2. Petitioner contends without

dispute and the Court so finds that

he is the leader and head of the

"Church of the New Song". His

pronouncements on the tenets,

beliefs, ideas, practices and

general principles of the

"Church of the New Song" are thus

authoritative of the official

position of the "Church of the

New Song".

3. Petitioner has committed

various and numerous infractions

of prison rules during his stay

at the Federal Correctional

Institution at La Tuna, Texas

beginning in March of 1972.

4. The beliefs professed by the

petitioner are not sincerely held

and do not in their own

scheme of things constitute a

"religion" nor are they sincerely

of a “religious" character.

5. The so-called "Church

A--34

of the New Song" does not meet the

criteria adopted by this Court in

its analysis above to entitle it

to First Amendment protection as

a religion. It is clearly a sham

designed and calculated to obtain

favored treatment for its members

incarcerated in various prisons

and has no measurable following

outside Federal Penitentiaries.

6. There is no evidence of

probative force to substantiate

plaintiff's claims that defendants

violated the “establishment of

religion" clause of the First

Amendment in their provision of

religious services to the

inmates at Federal prisons.

7. There is no evidence of

probative force that defendants

or anyone acting for them or

under their authority or control

illegally reported anything to

anyone in any way concerning any

of petitioner's activities or

that defendants in any manner

improperly or illegally

interfered with or impeaded [sic]

the petitioner or his followers

in attempting to establish or

practice a "religion".

8. That the claim of Mr.

Theriault to be the second

Messiah is merely a front for what

is essentially a political "union"

or organization with primary goals

of establishing a unit to bargain

with prison officials and ultimate-

ly establish a new social order

based on "votaries" with Harry

W. Theriault as its head.

A-35

ee eee

9. While an inmate does not

forfeit all of his rights under

the Constitution, he does lose some

of them such as the must valued

one, i.e. the right to his freedom.

Thus, he is by necessity subject

to reasonable and necessary

disciplinary rules, regulations

and measures, including those

imposed by the penal institution

in this very case.

10. The Court adopts, reaffirms

and incorporates herein, and

finds even more applicable now,

all of the Findings of Fact and

Conclusions of Law that were

made in his earlier decision and

Judgment filed in this case.

(See 391 F.Supp. 678).

CONCLUSIONS OF LAW

1. Any restraints and/or

disciplinary measured invoked

against petitioner by defendants

resulted from his various infractions

of prison rules and not out of

retaliation for or in response to

any legitimate religious activities.

Even if under any conceivable theory

the so-called "Church of the New

Song" is in fact a religion, such

restraints and disciplinary measures

imposed by the institution were of

reasonable and necessary nature

under the circumstances.

2. The “Church of the New Song"

is not a religion within the scope

of the First Amendment.

3. Not being a religion within

the scope of the First Amendment,

A- 36

"Church of the New Song" is not

entitled to First Amendment

protection claimed by the petitioner.

4. Having fully again “ventilated"

the alleged religious claims of

petitioner, the relief sought by

him is in all respects DENIED.

SIGNED AND ENTERED THIS 10th day

of February, 1978.

/s/ John H. Wood, Jr.

HN H. WOOD, JR. Lee

UNITED STATES DISTRICT JUDGE

A-37

- ee oe oe ee. —

ae ee

SUPREME COURT OF THE UNITED STATES

No. A-439

HARRY W. THERIAULT,

Petitioner,

Vv.

FREDERICK SILBER, DIRECTOR, UNITED STATES

CHAPLAIN SERVICE, ET AL.

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application

of petitioner,

IT IS ORDERED that the time for

filing a petition for writ of certiorari

in the above-entitled cause be, and the

same is hereby, extended to and including

January 13, 1979.

/s/ Lewis F. Powell, Jr.

Associate Justice of the

Supreme Court of the .

United States

Dated this 13th

day of November, 1978.

A~38

Dr. Farry 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.

Vv.

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,

Feb. 25, 1972

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.

A-39

— ee

OPINION AND ORDER OPINION

EDENFIELD, District Judge.

Harry William Theriault, self-styled

Bishop of Tellus'*tind self-proclaimed

leader of a group designated by pet} ion-

ers as the Church of the New Song, | is

also a federal prisoner incarcerated

presently in the Atlanta federal peniten-

tiary on "holdover" status from the Marion

(Illinois) federal penitentiery. 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 be-

lief in the Eclatarian faith(fa 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, Pheriault

and co-petitioner Dorrough founded the

Church of the New Song and the Fountainhead

Seminary in 1970 while incarcerated in

Atlanta. They nad obtained "doctor of

divinity" certificates from a mail-crder

organization and, as a "game", they decided

to challenge the chaplaincy program in the

A-40

federal prisons and, at the same time, tc

develop a new religion of their own. The

petition filed in this court alleced 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 orthodcyy"

had been cast over their lives because

respondents Hanberry and Beane, the

Protestant and Catholic chaplains, respect-

ively, 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 al-

lowed 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 holé religious

services for himself and his followers,

but the request was denied hecause the

chaplain felt the Church of the New Song

was not "recognized." Theriault attempted

to meet this objection by assurinc the

chaplain he would obtain an official charter

A-41

from the Universal Life Church, Inc., the

mail-order organization which supplied

Theriault with his "doctor of divinity"

degree. The chaplain brought the aster

to the attention of respondent Silber ana

Rev. Silber testified in court that he

upneld the Gecision of the Marion chaplain

because the Church of the New Sonc and

the Eclatarian faith were nct “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 moverent.

One staff member filed a memorandun on

the subject and urged that something be

done to control Theriault's activities. (5)

Three days after the memorandum was

filec, Theriault was placed in punitive

segregation ("H-Unit") for failinc to

obey the order of a security officer

to move. He was subsequently released

and later citea for a minor violation and

for threatening a security officer. On

April 1, 1971 Theriault approachec Mr.

J. Culley, a correctional supervisor, and

demanded a place to hold religious ser-

vices. 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?) The day Theriault

was received back in Atlanta he was

immediately placed in the appregation unit

and he is still there today£) The court

finds as fact that the sole basis for the

punitive segregation of Theriault was

his demand to hold religious services.

A-42

A. The "Establishment" Claim

The "establishment" claim raised by

petitioners is, for the most part, without

merit. The Bureau of Prisons is statu-

torily 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 proqrams

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 compliment 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 in-

stitutions may afford another example. It

is argued that such provisions may be

assumed to contravene the Fstablishment

A-43

cs om

-

Clause, yet be sustained on constitutional

grounds as necessary to secure to the members

of the Armed Forces and prisoners those

rights of worship gquarenteed under the Free

Exercise Clause. Since qovernment has de-

prived 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 he...

"Such activities and practices seem

Gdistinguishable from the sponsorshin 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

of the prisoner.

"The State must be steadfastly neutral in

all matters of faith and neither favor nor

inhibit religion. In my view, qovernment

cannot sponsor religious exercises in the

A~44

public schools without jeovardcizino that neu-

trality. On the other hand, hostility, not

neutrality, would characterize the refusal

to provide chaplains and places of worshin

for prisoners anc 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 termporary use of an empty public

building to a congregation whose place

of worship has heen destroyed by fire

or flood, |

et Abington School District v.

Schempp, 374 U.S. 203, 296-299, 83

S. Ct. 1560, 1610, 10 L.Fdad. 2a 844

(1963) (concurring opinion).

The court concludes that the

maintenance by the Bureau of Prisons

of chaplains at the Atlanta federal

penitentiary is not unconstitutional.

See Horn v. People of California,

321 F. Supp. 961 (E.D. Cal. 1968).

Notwithstanding this conclusion,

the court does find merit in petitioners'

claims about the filing of relicious

reports by respondents Hanberry and

Beane. The testimony before this court

established that Rev. Hanberry an@ Fr.

Beane reqularly submit reports to the

caseworkers at the Atlanta penitentiary

in which they comment on the inmates’

participation or lack of participation

in their respective religious activities.

These reports, together with reports

from other staff members, are culled by the

caseworkers and form part of the inmates’

profiles which are presented to the

Board of Pardle when the inmates are

being considered for release on parole.

It is not inconceivable that the qrant

A-45

or denial of parole is hased to some deqree

on the religious reports submitted by the

chaplains.

In the court's view, the submission

of religious reports by respondents

Hanberry and Beane involves the Government

in a violation of the neutrality it must

maintain with resnect to religion. There

can be no doubt that an inmate whose file

contains a positive religious report

stands a better chance of being released

on parole than an inmate with a neutral

or negative religious report. Indeed,

it is likely that the inmates' very know-

ledge of the existence of these religious

reports may compel some to participate

in religious activities. The Government,

by allowing these religious reports to

be submitted, is in effect promoting

religion among inmates and indirectly

punishing the atheist, agnostic, or

Eclatarian who declines to participate

in these religious programs. This is

unconstitutional. As the Supreme Court

has declared:

“Government in our democracy, state

and national, must he neutral in matters

of religious theory, doctrine, and

practice. It may not be hostile to

any religion; and it may not aid, foster,

or promote one religion or religious

theory against another or even against

the militant opposite. The First Amendment

mandates governmental neutrality between

religion and religion, and between re1igion

and nonreligion." Epperson v. Arkansas,

393 U.S. 97, 103-104, 89 S.Ct., 266, 270,

21 L.Ed. 2d 228 (1968).

The court will accordingly enjoin the

submission of these religious reports by

respondents Hanberry and Beane. :

A~46

B. The "Free-"xercise" Claim

The chaplains at Atlanta and

Marion, as well as Rev. Silber, denied

Theriault's requests to hold religious

services hecause they felt the Church

of the New Song and the Eclatarian faith

were not "recognized." The insistence

by these federal employees that Theriault

and his followers meet this "recognition"

standard before they mignt freely exercise

their religious beliefs runs. squarely

afoul of the First Amendment$°) One of

the purposes of the First Amendment was

to prohibit the imposition by government

of any standard as a prerequisite to the

free exercise of religion. As the

Supreme Court has noted:

"By the time of the adoption

of the Constitution, our history shows

that there was a widespread awareness

among many Americans of the dangers of

a union of Church and States. These

people knew, some of them from bitter

personal experience, that one of the

greatest dangers to the freedom of the

individual to worship in his own way lay

in the Government's placing its official

stamp of approval upon one particular

kind of prayer or one particular form

of religious services. They knew the ar-

guish, hardship and bitter strife that

could come when zealous religious groups

struggled with one another to obtain

the Government's stamp of approval from

each King, Queen, or Protector that

came to temporary power.” Engel v. Vitale,

370 U.S., 421, 429, 82, S..Ct. 1261, 1266,

8, L. Ed. 2d, 601 (1962).

But respondents go further. They argue

that Theriault's "religion" is not a re-

ligion at all but merely a random amalga-

mation of pseudo-political notions; that

his "church" is nothing but a collection

of some of the worst prisoners in the

federal system. Similar arguments were

offered by prison officials when so-called

Plack Muslim prisoners kegan suing in

federal court for religious freedom. One of

the first courts to deal with these argu-

ments responded as follows:

"Under freedom of religion in the

country a person has an absolute right

to embrace the religious belief of his

choice. The Constitution dves not define

‘religion' and reference to standard

sources of the meaning of words indicates

that there is not complete agreement

On even a definition of the term. Mor

is it the function of the court to con-

sider the merits or fallacies of a reli-

gion or to praise or condemn it, however

excellent or fanatical or preposterous

it may be. Whether one is right about

his religion is not a subject of knowledae

but only a matter of opinion. ;

"It is sufficient here to say that

one concept of religion calls for a be-

lief in the existence of a supreme being

controlling the destiny of man. That _

concept of religion is met by the Muslims

in that they believe in Allah, as a su-

prene being and as the one true god. It

follows, therefore, that the Muslim faith

is a religion." Fulwood v. Clemmer, 206

F. Suop. 370, 373 (D.D.C. 1962).

The record in this case amply reflects

the tenets, such as they are, of the

Church of the New Song and the Fclatarian

faith. The Eclatarian faithrul worship

a devine and universal spirit which they

identify as "Eclat" and which they he-

lieve manifests itself in all animate and

inanimate objects. Since each person is

thought to possess some of this universal

spirit, the Fcelatarians believe that :

loneliness may be overcome and true

brotherhood achieved if people became

A-48

more conscious of Eclat. Petitioners have

their own Eclatarian Sible,.their own

Eclatarian newsletter ("The Leaves"), their

own religious paraphernalia. A number of

inmates testified before this court that

Theriault and his teachings have had a

positive, rehabilitative effect upon their

lives anc have inspired them religiously.

This court is not unmindful of the very

real possibility that petitioners are still

engaging in a "game" and attempting to

perpetrate a colossal fraud upon both

this court and the federal prison system.

Nevertheless, with all due respect to

respondents, the court cannot declare peti-

tioners' religion illegitimate.

Respondents contend, however, that

even if the Eclatarian faith is not illegit-

imate, they need not permit its free exer-

cise in prison because Theriault and his

followers are violent and threaten the

security of the prison. Certainly if

respondents could show that a compvelling

and substantial public interest recuired

the subjucation of petitioners' First

Amendment rights, they would prevail.

Walker v. Blackwell 4 1 F. 2d 23 (5th Cir

1969) ("Walker rr) 4 ut the burden

upon respondents is heavy, and a cursory

review of the Black Muslim cases reveals

how very heavy that burden is.

In Cooper v. Pete, 324 F.2d 165 (7th

Cir. 1963), a state prisoner had filed

a civil rights claim alleging that he

was confined in punitive segregation and

deprived of religious rights because he was

a Black Muslim, and the district court had

dismissed the prisoner's petition. On

appeal the Attorney General of the State

of Illinois asked the Seventh Circuit to

take judicial notice of certain social

A-49

ewe

studies purporting to show that, "despite

its pretext of a religious facade," the Black

Muslim Movement was an organization dedicated

to the overthrow of the white race and to

the incitement of riots and violence inside

prison walls. The Attorney General also

asked the court to take judicial notice

of an official police study which document-

ed numerous acts of violence committed by

members of the Black Muslim Movement in

a variety of state and federal prisons,

including the Atlanta federal penitentiary.

The Seventh Circuit agreed to take

judicial notice of these studies and

affirmed the lower court's dismissal of the

petition. The Supreme Court reversed and

held that the petition stated a valid cause

of action. Cooper v. Pate, 378 U.S. 546,

84, S. Ct. 1733, 12 L.Ed.2d 1030 (1964).

On remand, the district court enjoined

prison officials from denying the petitioner

and other Black Muslim prisoners the

right to communicate with and visit mini-

sters of their faith and the right to

attend religious services conducted by them.

The Seventh Circuit affirmed. Cooper v.

Pate, 382 F.2d 518 (7th Cir. 1967).

Similarly, in Long v. Parker, 384 U.S.

32, 86 S.Ct. 1285, 16 L.Ed.2d 333(1966),

the Supreme Court vacated the judgment of

a district court, which had been affirmed

by the Third Circuit, dismissing the

petition of a Black Muslim prisoner at

the federal penitentiary in Lewisburg,

Pennsylvania, whe complained of the

deprivation of religious rights. On remand,

the district court denied relief and relied

on its decisimin Desmond v. Blackwell,

235 F. Supp. 246 (M.D. Pa. 1964). In

Desmond the district court found that

Black Muslim meetings were devoted to

the doctrine of hate, that those attending

A-50

such meetings referred to staff as "monsters

of inferior intelligence," "devils", and

"sxunks,"” that the sunervision of such

meetings caused a depletion in the staff

force and made it less available for other

duties, that militarily-trained prisoners

known as the Fruit of the Islam stood guard

at the entrance to the meetings, that

some Black Muslims assaulted and stabhed

another prisoner in order to induce him

to join their faith, and that when discipli-

nary action had to he taken aqainst one

member of the group the entire membership

approached the control center of the in-

stitution and demanded his release from

administrative segregation. On appeal,

however, the Third Circuit vacated the

judgment of the district court and remanded

the case for further proceedings. Long v.

Parker, 390 F.2d 816 (3d Cir. 1968).

The court found that the district court's

reliance on Desmond was misplaced and that:

"Mere antipathy caused by statements

derogatory of, and offensive to the white

race is not sufficient to justify the

suppression of religious literature even

in prison. Nor does the mere speculation

that such statements may ignite racial or

religious riots in a penal institution

warrant their prescription." At 822.

No one has testified that the Church

of the New Song preaches hate. There

was evidence, that Theriault kicked a

prison official, destroyed government

property, threatened security officers,'11)

and sent vile letters to a 5 dera?

district judge in Tllinois\! ‘owever, in

view of the Black Muslim cases, this

court cannot say on the basis of this

evidence that Theriault or his group are

so menacing that they should not be

allowed to freely exercise their religion.

A-51

The court finds that respondents have

failed to show a sufficiently compelling

public interest requiring the subjugation

of petitioners’ First Amendment rights.(13

Walker II, supra. Accordingly, it must

grant petitioners appropriate relief so

they may freely exercise their rights with-

in the context of a prison community.

l. Religious activities

This court interprets the First

Amendment as guarantéeing the right of

federal prisoners who share a common

religion to gather for devotional

meetings and to study the teachings

of that religion. This right cannot

be denied the members of the Church

of the New Song. Since respondent

Carlson has already promulgated a .

detailed policy statement - Bureau of

Prisons Policy Statement 7300.43A - concerr

ing the religious rights of federal prison-

ers, the court need only order him to

direct prison authorities to apply that

policy to petitioners.

Policy Statement 7300.43A

authorizes the scheduling of worship

services, religious nature "with

reasonable frequency” for all committed

offenders under superviscry procedures

established by the warden. It also

directs the prison chaplains to allocate

a proportionate share of the funds they

receive to meet the religious needs of

interested faith groups. Thus, for

example, the Black Muslims at the

Atlanta penitentiary are given meeting

space and permitted to meet twice weekly.

Respondent Beane, who serves as their

advisor in religious matters, revroduces

A-52

religious material for the Muslims on in-

stitutional equipment, permits them the

use Of a tape recorder, and coordinates

the purchase of various religious books

from the funds of the institution. Bethea

v. Daggett, 329 F. Supp. 796 (N.D. Ga. 1979

aff'd 444 F. 2d 112 (5th Cir. 1971).This

is not to say, of course, that respondenta

must pay for all the printing petitioners

seek or that the members of the Church of

the New Song may collect "tithes" to

fund their own activities. As in other

areas, prison officials should wisely

use their discretion in the handling of

these matters.

Since there are no ministers

of the Eclatarian faith outside pris-

on walls, prison authorities may not

disqualify Theriault from leading

religious services for his Church.

See Bethea v. Daggett, supra. This

does not mean Theriault is to be treated

as a privileged person; he has no more

"right" to a beard than any other inmate.

Brooks v. Wainwright, 428 F.2d 652

(5th Cir. 1970); Brown v. Wainwright,

419 F. 2d 1376 (5th Cir. 1970). And

while Theriault may preach the doctrines

of his faith - including the "Eclatarian

Demandate of Natural Rights" - at his re-

ligious gatherings, any proclamations

by him urging violence, riots, or in-

surrection, may be suppressed by prison

authorities and may afford the authori-

ties with a sufficient reason to dis-

continue the activities of the Church

of the New Song. Knuckles v. Prasse,

302 F. Supp. 1036 (E.D. Pa. 1969), aff'd,

435 F. 2a 1255 (3rd Cir. 1970), cert.

denied, 403 U.S. 936, 91 S. Ct. 2262,

29 I. Fd. 24 717 (1971).

A-53

~—e

2. Religious Correspondence

The Fifth Circuit has heidc that

Black Ituslims and other federal prison-

ers may correspond with their. religious

leaders for spiritual guidance and

advice. Walker II, supra. It follows

that members of the Church of the New

Song may correspord with their religious

leader - Theriault - for spiritual

guidance and spiritual advice.

Of course, prison authorities

may ascertain the contents of such

correspondence to make certain that

what is sought is spiritual guidance

and spiritual advice. However, tney

may not simply characterize all corre-

spondence of the members of the Church

of the New Song as "nonreligious"

because of their subjective evaluations

of the Eclatarian faith.

Theriault has no "right" to corre-

spond with famous personalities to solicit

funds for his Church. Such correspon-

dence falls outside the scope of First

Amendment protection and may be con-

trolled by prison officials in the cus-

tomary manner. Shack v. Wainwright,

391 F.2d 608 (5th Cir.), cert. denied,

392 U. S. 915, 88 S. Ct. 2078, 20 L. Ed.

2d 1374 (1968).

3. Punishment for Religious Activities

This court has found as fact

that Theriault was placed in punitive

segregation at Marion on April 1, 1971

solely to prevent him from holding ©

religious services for himself and his

followers. He remained in puniti’e seacre-

A-54

cc. cross-examine accusers, call wit-

gation thereafter and upon his transfer to nesses, and have legal counsel

Atlanta for the hearinas before this court or counsel substitute, and

he was summarily placed in punitive segrece d. written decisions with specific

tion where he is today.

Since the Marion authorities un-

constitutionally denied Theriault his

First Amendment rights and confined him

in punitive segregation solely because

he sought to exercise those richts, his

present confinement in punitive secre-

gation is unlawful and he must te restored

to the general prison population. Cooper

vs. Pate, 382 F. 2d 518 (7th Cir. 1967),

Howard v. Smyth, 365 F. 2d 428 (4th

Cir. 1966), cert. denied 385 U.S. 988,

87 S. Ct. 599, 17 L. Ed. 24 449 (1966) (14)

The court reiterates that authorities

may take whatever disciplinary measures

are necessary ~- including the imvoosition

of punitive segregation, - if Theriault

or his group begin to preach insurrection

or violence, or if they violate institu-

tional rules and regulations recuiring

punishment subsequent to the date of the

Opinion and order.

4. Other Matters

Petitioners have raised fcur other

issues which the court finds are unre.ated

to the central claim. They pray for.

(1) The right to give legal advice

to all members of their faith:

(2) The right, at disciplinary

hearings, to:

(a) a written copy of the

charce,

(b) a hearing before an im-

partial official,

A=-53

ee ee

findings and supporting decisions;

3 The right to subscribe to and receive

an Atlanta weekly publication called

"The Great Speckled Bird", and

4. The right to freely communicate

with the press and the publishing

media.

There has been no showing that

respondents have prevented inmates - whethe

they be members of the Church of the New

Song or not-from furnishing legal assis-

tance to other inmates in contravention of

Johnson v. Avery, 393 U. S. 483, 89 S.

Ct. 747, 21 L. Ed 2d 718 (1969), and

Wainwright v. Coonts, 409 F. 2d 1337

(Sth Cir. 1969). Of course, vorison

officials may regulate the legal activities

of inmates and petitioners have not shown

that respondents have arbitrarily or capri-

ciously regulated their legal activities.

See Arey v. Peyton, 378 F. 2d 930 (4th

Cir. 1967).

This court is aware that some

recent decisions dealing with state

prisons have granted the procedural due

process rights sought by petitioners,

E.g. Landman v. Royster, 333 F. Supp. 621

(E.D. Va. 1971); Clutchette v. Procunier,

328 F. Supp. 767 (N.D. Cal. 1971). Never

theless, the court finds itself in agree-

ment with the observation of the Second

Circuit that the federal prisons already

afford inmates due process in discipli-

nary hearings (see Bureau of Prisons

Policy Statements 7400.€A) and that those

procedural rights which are not afforded

are not constitutionally mandated.

See Sostre v. McGinnis, 442 F. 2a 178 (2d

Cir. 1971), petition for cert. filed, 40

U.S.L.W. 3170 (U. S. Aug. 18, 1971) No. 7l-

246).

No evidence was adduced at the

hearings that petitioners ever requested

"The Great Speckled Bird" or that such

requests, if made, were denied. Peti-

tioners do not contend that this publi-

cation is a relicious newsletter of the

Church of the New Sono and no "free exer-

cise" issue is involved. Cf. Jackson

v. Godwin, 400 F. 2d 529 (5th Cir. 1968).

Prison officials may make reasonable

reculations as to the circulation of

magazines and newspapers and this court

will not interfere with such administra-

tive matters. Royal v. Clark, 447 F. 2d

501 (5th Cir. 1971).

Finally, the court notes tnrat

Bureau of Prisons Policy Statement 1220.1A

(February 11, 1972) now permits federal

prisoners full access to the news media

through the Prisoners Mail Box. The

court also notes that under Bureau of

Prisons Policy Statement 7300.46 federal

prisoners may submit manuscripts for

publication so long as they do not deal

with the details of the author's life,

other inmates, criminal careers, and

matters currently in litigation, and so

long as they do not jeopardize the security

and discipline of federal prisons. The

court does not find the limitations in

Policy Statement 7300.46 unconstitutional

ana will not interfere with it. FPoyal

v. Clark, supra.

A-57

=.

ORDER

_ For the foregoing reasons

petitioners' petition for injunctive

and other relief is granted in part

and denied in part. It is granted

in part as follows:

(1) Respondents Fanberry anda

Beane are enjoined fror

preparing or submitting

Oral or written reports

to other staff members of

the Atlanta federal

penitentiary concerning the

religious activities of in-

dividual inmates at that

penitentiary;

(2) Respondent Carlsen and re-

spondent Silber are ordered

to direct prison authorities

uncer their jurisdiction to

grant petitioners the right

to freely exercise their reli-

gion, including the right to

correspond with petitioner

Theriault for the purpose of

seeking spiritual guidance,

as regulated by Bureau of

Prisons Policy Statemert

7300.43A and in accordance

with the opinion of this

court;

(3) Respondent Henderson is

hereby ordered to immediately

release petitioner Theriault

from confinement in punitive

segregation and restore him to

the general prison population; ari

A~58

(4)

Respondent Carlson is hereby

ordered to instruct prison .

authorities under his jurisdi- 2

ction that they may not re-impose

confinement in punitive segre-

gation upon petitioner Theriault

unless Theriault violates an in-

etitutional rule or regulation

requiring such confinement sub-

sequent to the date of this ;

opinion and order or incites

riot or insurrection during the

conduct of his religious activ-

ities subsequent to the date of

this opinion and order.

In all other respects it is denied.

It is so ordered.

A-59 )

FOOTNOTES

Theriault testified that he Aerives

his authority to be "Bishop of

Tellus" (Bishop of the Farth) from

the Book of Fevelations of the

New Testament. Chapter 3, Verse 3

of the Book of revelations states:

"Remember, then what you

received and heard; keep that, and

repent. If you will not awake, I

will come like a thief, anc you will

not know at what hour I will come

upon you." (Emphasis added.)

Theriault, who is incarcerated for

robbery, claims that he is that

"thieft”.

Theriault testified that the name

of the Church is cerivede fror the

"new song" that the younger gener-

ation is now sincing as weil as

from the "new sonc" of the new era

described in the 300k of Revelations,

59:9 and 14:3 ("|. . . and they sang

a new song").

According to Theriault, Felat is

the "new name" of the Civinity

referred to in the Book of Revela-

tions 3:12. The Eclatarian faithful,

aside from one secretary, are to be

found only in the federal peniten-

tiaries of Atlanta and Marion.

The text of the chaplain's letter to

Rev. Silber is as follows:

"FREDERICK SILBER, 25 Sept 79

DIRECTOR OF Cli. SERV.

BUREAU OF PRISONS,

WASHINGTON, D. C.

A-60

VIILLIAM G. EZ=LL,

PROTESTANT CYAPLAIN

U. S. PENITENTIARY,

MARION, ILLI:NOIS

RECOGNITION OF CHURCH

GROUPS

As you know, Harr: Theriault,

#90987, was transferred to Marion

from the Atlanta venitentiary. He re-

presents himself as a Zishop in the

Church of the New Sonc.

His initial moves to have use 0%

the chapel, distribute literature and

hold study classes have been denied. The

reason for such denial is that he is not

recognized as a churc>. He now comes

with a letter addressee? to a Universal

Life Church in Modestc, California re-

questince a church charter, etc. It is

reportec that he has «his kind of charter

for the church he had in the penitentiary

in Atlanta. There are no doubt 'diplo-

ma mills', etc. who for fees or favors

would send him the necessary papers

ana documents. ‘Je will have a check by

a probation officer in this area made

on this particular man and church.

When Theriault is denied one place,

he goes another. He has some of our

Staff involved now in his requests for

recognition. There is little question

that if we deny his efforts to secure

documents that there ';ill be writs, etc.

Therefore, if you have previous exper-

ience in similar cases or could advise

us, it would be appreciated. Also, .

we want to advise you of this case

sO you vould not be unaware.

A-61

The move with him has been rade with

diplomacy and while it is not an

emercency, it could develov. Any help

in this matter would be anpreciatec.

WGE: kw"

5. The text of the memorancum is as

follows: au

"SUBJECT: Theriaults [sic] activities

and oraanizetion of in-

mates. (90987-1311)

e vast quarter in "F' unit,

I have ouserved Thexiaulte {sic] -gigridiabata

both in and out of the unit. Following

is a listing of incidents anc wg ae

tions that has led me to believe e oe

formulatec a strong, radical power str

ure in this institution and others.

Also, it would not be hard to believe,

he may have some followers on the outside.

Theriault has organized a group called

"The New Church of World Song or rear

thino similar to this. Ne is rindi ncaag

and members address him as agrees a

Others have been ordained as minis Pai

by him. I have no 1aea, as to stg :

this orcanization might be.— Sore i

vestigation would reveal this.

Kessler 1707-135, E-B-10, attempted

to assist Theriault in his dut 23 * F

orderly, a few weeks ago. Both gen

warned and Kessler sent out of — °

This time I was informed icles om aa

one of his ministers and as such shou be

allowed to assist him.

t, when

Theriault was greatly voset,

Gomez F-C 18, was taken to F Unit the

A~62

First time and became very inquisitive

fter informince me this was another of

his ministers and seezec to convey to me

1}

that he should he aiven this information

because he was Gomez Sishop.

He has constantly “eot occuvied, writ-

ing writs and other lecal papers for

the inmate population. This seems to he

a very big business, <nat occupies most

of his time.

Arnold from I unit recently made

an attempt to assist in the orderly work

and again both were warned. Minshew

F-A-9 has assisted Theriault on a few

occasions, before beinc assigned to the

Food Service detail.

Mr. Temper returnec some pavers to

him recently, advisinc “im they could

not be sent out. He immediately

asked me to call Mr. “eohane. I

compiled and was edvisec that lir. EAmonds

was in charge that da‘. Mr. Edmonds

would not give Theriazlt permission to

send the papers out. Theriault became

very upset and proceecec to say this was

a conspiracy to prevent him from mailing

this material. He nroceeded to use

several colorful adjectives to descrihe

Mr. Fdmrond to Welty F-A-8. I advised him

to be careful in using these terms in

relation to staff mem-ers. His corment

was "Freedom of speecn, man.‘ Durina

the discussion, Welty advised him, the

matter should be taker to the Warden and

not mess with these veople.

Theriault became cuite frustrated

after not being allowed to visit Alderislo

85719-132 in the hospital (12-10-70).

A-63

He seemed to think regulations does not

apply to him as one perittinag his position.

I was told he held a meeting in the

V.T. building (12/11/79), with several

members of his group. This can he

verified by the Suvervisor of the

evening watch and the V.T. officer.

We left the unit 12/12/70 with a NRible.

I believe he conducted a meeting some-

where on this date. This would need

some checking. Gomez attempted to

attend Mr. Sumners [sic] group on this

date but suddenly changed his mind. He

seemec to have some purpose in checking

the group. ‘

I have observed Cavpnola 1642-135,

Heard, Kolburg 27388-138 and several

other inmates, either contacting or

being contacted by Theriault. _

Considering these incidents and

other information gathered durina

these past days, I feel Theriault

has shown great disregard for the

institutional authority and regulations

and has went about setting up this

organization, with him as the central

power figure, utilizing the talents

of several key figures as ministers.

This group has members of all races

and has the characteristics of an

extremist group on the far left, com-

pletely against the system (whatever

it may consist of) and will let nothing

stop or stand in its way.

It is my opinion, that if something

is not done to control the activities

of Theriault, we will have an incident

in the near future causing darace

to the institution proper or injuries

A-64

to versonnel to compel agreement to the

grouvs [sic] demands."

6. The text ot the report vorepared

by Culley on the incident is as

follows:

"At approximately 5:30 pm [sic]

this evening Theriault approached Mr.

J. White C/S and myself in the east

corridor and demanded a place to hold

a religious service. I exrlained

to him that to hold a meeting of a

religious nature he would have to

obtain approval of the Administration

by working through the Chaplain. Fe

would not accent this as an answer to

his question or demand. At this time

he appeared to be cetting emotional,

so I asked him to step into the office

and we would discuss the matter.

"To take away the opportunity of

Theriault creating am incident, if he

so desired, I kept him in the office

until the evening yard was closec and

we had began[sic] to count.

"During our talk in the otfice,

Theriault still demanded to be

permitted to worship his lord in a

place where other inmates could come

if they so desired.

"He stated he would hold his

services and 1f I attempted to break

it up, I would have to resort to violence

because no one would leave if T instructed

them to leave. As Theriault left the

office for count [sic] he commentec,

I will do what I feel T have to.

A-65

"as a preventive [sic] measure toward

any type of incident taking place as he

indicated, I placed him in F-Unit

immediately after count before the ceneral

population was released for evenine

activities.

"Theriault offered no resistance curing

the move. He asked if this was ny

decision or had I called someone.

told him it was mine. He then stated,

"Can't we come to an understandina, I

Gidn't say I was going to do it tonight.'

He further stated that he woulée do as

I instructed.

"In H-Unit, [sic] Theriault refused

to remove: his cle*hing for a shakecown.

It was very clear that he wented the

staff to man-handle him. His pockets

were emptied, belt removed and he was

given a very thorough frisk shakecown.

“oO assure the chance of contraband not

being introduced into the unit, Theriault

was placed in a closed front cell.

NOTE: At approximately 9:00 po m [sic]

I visited with Theriault in H-Unit. I

asked if he was willing to submit to

a strip shakedown. He stated, "I am

not playing your silly games and if vou

try something there will be violence.'

I advised him again why he was in the

closed front cell and if he submitted

to the shske-down [sic] I would move

him to the front at this time. He

would not have anything to do with

the reauest.

/s/3C"

A-66

10.

That night Theriault destroyed part of

his H-Unit cell and the next day both

kicked and threatened a secvrity offi-

cer.

On October 28, 1971, prior to

Theriault's transfer to Atlanta,

the Special Intelligence Suvervisor

at the Atlanta penitentiary circu-

lated a memorandum advisine all

staff that Theriault wrs tc be

placed in seareaation uvon his

reception at Atlanta anc was not

to be removed from seqrecation

without the approval of the Associate

“Yarden - Controls. When Theriault

was received back to Atlanta on

November 6, 1971, he was placed in

the Secregation Unit in accordance

with the October 28th memorandum.

It appears also to run afoul of

Policy Statement 7300.43A of the

Bureau of Prisons which was issued

by respondent Carlson. That State-

ment commits the Pureau to extendine

the greatest amount of reliaious

freedom possible within a prison

context to committed offencers,

and assisting them in the vractice

of "the religion of their choice."

Nowhere in the Statement is there

an indication that only "recognized"

religions can be practiced.

This same standarec has heen applied

in cases dealing with state insti-

tutions. F. gq. Brown v. Peyton, 437

F. 2€ 1228 (4th Cir. 1971). In Lone

v. Parker, 390 F. 2d 816 (3rd Cir.

1968), and Banks v. Havener, 234

F. Supp. 27 (F. D. Va. 1964),

- A-67

however, a "“cle@rand present danger"

test was enunciated. In a thouchtful

note, Judge Higginbotham has sucaested

that the "clea and present danger" test

might be inapplicable in the context

of a prison community and that a less

rigorous “clear and probable dancer" test

might be more appropriate so that vrison

officials need not suffer a catastrovhic

riot in order to create a factual record

sufficient to justify the imposition

of restraints. Knuckles v. Prasse,

302 F. Supp. 1036, 1048-49 (E.D. Pa.

1969). aff'd 435 F. 24 1255 (3d Cir.

1970), cert. denied 493 U.S. 936. 91

S. Ct. 2262, 29 L.Ed 24 717 (1971).

Judce Fiaginbotham's observa-

tions have much appeal. However,

in the instant case, this court con-

cludes that respondents have not even

shown a clear ane probable dancer enman-

ating from Theriault or the Church of

the New Song.

ll. Prison officials from Marion

testified that Theriault's

threats caused them to fear

he anc his group micht engace

in violent and disruptive

actions, and they characterized

Theriault as a serious security

risk. However,in response to

questions from the bench, these

officials admitted they would

characterize all the inmates of

Marion as serious security risks,

and the regular worship services

are held at Marion for these inmates.

A--68

12.

13.

It is a federal offense to send

any mail which threatens to in-

jure the person of the addressee.

18 U.S.C. §876 (1970). A person

who commits this offense is liahle

to a $10,000 fine or up to five years

in prison. The vile letters which

Theriault sent to the judge were

brought to the attention of the

warden at Marion an@ resnonéent

Carlson. Nevertheless, the

letters were apparently not deemed

sufficiently threatening to warrant

criminal prosecution.

The issues involved in this case

might also be cast in an "eoual

protection” setting. Although

the instant case involves a

federal penal institution and the

actions of federal employees so

that the Faual Protection Clause

of the Fourteenth Amendment is

inapplicable, the Supreme Court

has read "equal protection” notions

into the Due Process Clause of

the Fifth Amendment (which does

apply to the federal government) and

has held tret federal action may

be so discriminatory as to be

violative of due process. Shapiro

v. Thompson, 394 U.S. 618, 89 S. Ct.

1322, 22 L.Fd. 2d 600 (1969);

Schneider v. Rusk, 377 U.S. 163,

84 S. Ct. 1187, 12 L.Ed. 24a 218

(1964); Bolling v. Sharpe, 347

U.S. 497, 74 S. Ct. 693, 98 L.Ed.

884 (1954).

Nevertheless, since this court

A-69

finds amole room within the Free Bxer-

cise Clause to cover the issue in this

case (see Brown v. Peyton, supra) and

since the Supreme Court itself has

warned that the “ecual vorotection

and "due process" concepts may not

be alwavs interchanaeehle (Rolling v.

Sharpe, supra at 499, 74S. Ct. 693),

the court will rest its conclusions on

the First Amendment.

° here is no basis in the record

= - support Theriault's claim that

he was transferred to Marion in

1970 solely hecause he filed his

petition in this court. Had there

been such a basis, the court might

have branded the transfer an abuse

of administrative discretion.

Cf., Lawrence v. Willingham,

373 F.2d 731 (10th Cir. 1967).

A-70