Secular Sri Lanka Post: The RLUIPA Debacle

Posted: 26 Sep 2010 02:35 PM PDT

Ever been mugged? Burglarized? Car stolen? Something worse? You may have spent a few guilty moments fantasizing about what you would like to do to the bastard in the unlikely event the police ever catch him. Most of what you were thinking about is wildly illegal, for good reason. But at a minimum, it is thought to be ok to put such people behind bars for a while, taking away a great deal of the freedom available to law-abiding citizens. If you knew what kind of freedoms prisoners enjoy in the name of religion, though, under the “Religious Land Use and Institutionalized Persons Act of 2000” enacted ten years ago last Wednesday, you might start fantasizing again – this time about the people who wrote this ridiculous law.

Our story begins in the early 1970s, when a prisoner named Harry Theriault at the Atlanta federal penitentiary noticed the special treatment that religious prisoners were given, and decided that he deserved special treatment, too. So he acquired a Doctor of Divinity degree through mail order, and then founded his own new religion, called the “Church of the New Song,” acronym “CONS.” CONS began spreading through the federal prison system, in part because its chief minister, Rev. Theriault, had a hobby of launching armed attacks on prison guards, thus facilitating his transfer to several different institutions. It flourished as well because its teachings touched a chord of spirituality among the oppressed inmates. Its chief sacrament, for example, was called the “Celebration of Life,” a celebration requiring the consumption of steak and Harvey’s Bristol Crème every Friday at 5:00 pm. After all, the prison accommodated the demands of Muslims and Jews for special foods; why shouldn’t it accommodate the demands of CONS as well?

Of course, this was all silliness. The courts would never treat CONS as a religion with special preferences like those accorded Christians, Muslims, and Jews, right? Wrong. Not only a federal district court, but even the Court of Appeals for the entire Eighth Circuit, covering the states of Arkansas, Missouri, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota, ruled that CONS was just as valid a religion as any other, and the prisons in those states must accommodate its “Celebration of Life”:

After careful consideration of the entire record we are satisfied that the district court’s judgment that The Church of the New Song is a religion within the ambit of the First Amendment is based on findings that are not clearly erroneous and that no error of law appears. Further there is insufficient evidence in this record to establish [the] contention that [CONS'] beliefs are not sincere and genuinely felt. It also appears that [CONS] have not been allowed a fair and meaningful opportunity to freely exercise their religion in the same degree as other inmates, Protestant and Catholic. [Remmers v. Brewer, 494 F.2d 1277 (8th Cir. 1974) (per curiam), cert. denied 419 U.S. 1012 (1974).]

This state of affairs persisted for thirty years. Not until 2004 did the CONS theologians go too far, when they demanded that Celebration of Life be made available even to prisoners who were isolated in lock-up for in-prison offenses. This induced the judges of the Eighth Circuit to spend their precious time analyzing the CONS scriptures revealed to Rev. Theriault, called the “Paratestament.” CONS God experts had testified that the Celebration of Life was the same as the “Sacred Unity Feast” described in the Paratestament. But this could not be, decided the learned judges, because the Paratestament says that the Sacred Unity Feast only happens after “the hundred and forty-four thousand Revelation ministers have been sealed as prophesied.” Since this had not happened yet, the Sacred Unity Feast was premature, as was the Celebration of Life. Moreover, the court was shocked to discover that items of contraband had actually been smuggled into cells along with the Celebration of Life special meals, a practice not authorized even in the Paratestament. So, no more special treatment for CONS in the Eighth Circuit.

Next we turn to Charles Colson, the first criminal convicted in the Watergate scandal. Although he wangled his way out of prison only 7 months into a 3-year term because of what he said were “family problems,” he was disbarred, disgraced, and cut off from his passion of hobnobbing with the rich and powerful. Until he found a way back in, by being “born again” as an evangelical Christian, with a special focus on using the prison system to promote Christianity. We saw last week that after the “Religious Freedom Restoration Act” was declared unconstitutional as it applied to the states, Congress took up a new law, originally called the “Religious Land Use Protection Act.” Late in the game, Colson prevailed upon his fundamentalist buddies in the Congress, and at the last minute special treatment for prisoners who claim to be religious was added to the bill, renamed the “Religious Land Use and Institutionalized Persons Act” (“RLUIPA”).

Senators as diverse as Harry Reid and Strom Thurmond expressed misgivings about the change; Thurmond sagely noted that “Inmates have used religion as a cover to organize prison uprisings, get drugs into prison, promote gang activity, and interfere in important prison health regulations. Additional legal protections will make it much harder for corrections officials to control these abuses of religious rights.” But, they voted for it anyway, because they didn’t want to offend Colson & company.

Thurmond’s prediction is exactly what has been happening ever since. Attorney Marci Hamilton, who successfully argued the Supreme Court case that struck down the Religious Freedom Restoration Act, points out in her book God vs. the Gavel: Religion and the Rule of Lawthat running a prison is a tough job, and it is critical for the inmates to perceive that the rules governing their conduct are simple and evenly applied. She then goes on to list, page after page, the types of special treatment under RLUIPA demanded and often received by prisoners, always with the threat of a costly federal court battle looming in the background:

§ Catholics demanding fish and unleavened bread during Lent, and wine every Sunday

§ Rastafarians demanding a diet of fresh fruit, vegetables, fish, juices, and grains.

§ Sikhs demanding unlimited hair and beard length

§ Protestants demanding to wear metal crosses, easily useable as weapons

§ Buddhists demanding tallow-free soap and hair conditioner

§ “Technicians of the Sacred” demanding worship in the nude

§ Aryan Nation demanding Aryan Nation sacred racist texts

§ Odinists demanding a sauna, cauldron, and Viking swords made of soft wood

§ Wiccans demanding Tarot cards and the right to cast spells and curses

§ Muslims demanding the right to refuse to be tested for tuberculosis

§ Baptists demanding better television programs

§ Christian Separatists demanding the right to be separated from black inmates

§ Native Americans demanding a sweat lodge

§ Luciferians demanding the right to burn Bibles (which wound up causing smoke damage throughout the building)

Do you enjoy removing your shoes at every airport checkpoint? You can thank the “shoe bomber” Richard Reid for that. What you may not know is that Reid converted to Islam in prison, because his career criminal father advised him (correctly) that Muslims got easier treatment and better food. Remember Jose Padilla, the American citizen suspected of planning a “dirty bomb” to render a large urban area radioactive and uninhabitable? If you are guessing that he converted to Islam in prison as well, you win the prize. Dr. Michael Waller, the Annenberg Professor of International Communication at the Institute of World Politics, has estimated that 17-20% of America’s prisoners are now Muslims, and that 80% of all religious conversions inside prisons are conversions to Islam, many at the behest of “chaplains” paid by the Wahhabi government of Saudi Arabia. Way to go, Congress.

The message to prisoners ought to be simple. “There are easy rules here, and what you do or don’t say you believe about the spirit world is not a part of them. You eat what’s served. You wear what’s issued. You occupy the space assigned to you at various times during the day. If you don’t like it, try not committing another crime when you get out.” Instead, we have politicians competing with each other on who can go the furthest to undermine the institution of civil government to let God experts do whatever they want, whenever they want. Let the fantasizing begin!

1. The RLUIPA Debacle – Part 1

2. Berlin court rules Muslim student cannot pray at school

3. Senate Committee Should Question Elena Kagan On Issues Relating To Church-State Separation, Says Americans United