Monday, June 05, 2006

There Are No Atheists In Foxholes. Or Solitary.

When it comes to reading correctional litigation, some of my all-time favorite cases come from the First Amendment issues.

When it came time to figure out if inmates had the freedom of religion, the first thing the courts had to decide was how to define a religion. The line of cases that lead up to this involved a prisoner by the name of Harry William Theriault. Harry Theriault was a Federal prisoner incarcerated for various offenses who founded his own prison-based religious order, the Church of the New Song---conveniently acronymed CONS---but which he also called the “Eclatarian” faith. He claimed that while housed in the lockdown facility in Marion, Illinois he experienced visions of a force known as “Eclat” who instructed him to found the new religious order. He acquired a Doctor of Divinity certificate through mail order, and appointed a friend and fellow inmate as the First Revelation Minister. Theriault appointed himself the "Bishop of Tellus." He and his First Minister proceeded to file a series of First Amendment actions against the Bureau of Prisons and the chaplaincy service for failing to provide them with the means and opportunity to practice their faith---a faith which coincidentally required a substantially improved diet, free access to open meeting facilities for all believers and the freedom to conduct seminars designed to "destroy the prison system, the people in the prison system, the people in the parole system, the people in government in general, the judiciary," et. cetera. As word of the new faith spread through the Federal prison system, new believers were added to the suit. This process was facilitated by Theriault’s own travels through the prison system; at various times he was held in at least three different states due to his threats of mass violence and murder, destruction of prison property and assaults against correctional officials. In spite of Theriault’s own testimony that the Eclatarian faith began as a "game", the U.S. District Court in Georgia ordered the Bureau to allow him to have access to a chapel or auditorium to hold services. Before this could be accomplished Theriault was soon back in solitary confinement for destroying his cell and assaulting a correctional supervisor. Prison officials were held in contempt for failing to provide services, and the District Court ordered Theriault’s release from disciplinary segregation. He was transferred to a Federal penitentiary in Texas. Once there, he filed again in Texas Federal court for access to the prison chapel. The petition, now expanded to include 166 prisoners, was quickly dismissed by the U.S. Court of Appeals but Theriault had nine others pending at various stages of litigation. Eventually the Church of the New Song was excluded from First Amendment protection on the grounds that this amendment was not intended to protect "so-called religions which...are obviously shams and absurdities and whose members are patently devoid of religious sincerity." This eventually became known as the "sincerity of belief" standard.


  • Theriault v. Carlson, 495 F.2d 390 (1974)
  • Theriault v. Silber, 391 F.Supp. 578 (1975)


ClinkShrink said...

Interesting, thanks for your experiences. I sat in on a team meeting at a Federal prison hospital once, and one of the points of discussion was whether or not a patient was well enough to come out of seclusion in order to attend sweat lodge. I couldn't help but wonder what, if any, risk there would be for NMS from a sweat lodge ceremony.

In another situation, an attorney general was defending a correctional system from a case filed under the Religious Freedom Restoration Act. The Native American plaintiffs wanted access to a certain plant for use in their ceremony. One of my psych residents, who happened to be from a Sioux nation, was familiar with the ceremony and was able to point out that it didn't typically involve the use of a controlled substance.

Dinah said...

How will I ever compete with the continually changing "ClinkShrink" logos?? We've unleashed your latent narcissism in a remarkable way...and all these years you've been soooo understated!!

ClinkShrink said...

Should I post them all and give folks a chance to vote?

ClinkShrink said...

Foo, your link just lead back to this comment page :(

Please try again.

Dinah said...

eek, testing, eek