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Rev Dr Mark Fearing

Dettmer VS Landon- Wicca As A Religion

  • September 4, 1986
    Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.
    Richard L. Williams, District Judge. (CA-84-1090-AM).
    Mark R. Davis, Assistant Attorney General (Mary Sue Terry, Attorney General; Nelson H. C.
    Fisher, Assistant Attorney General; John K. Messersmith, IV, Third-Year Law Student on brief)
    Jeffrey S. Koeze, Third-Year Law Student, Post-Conviction Assistance Project, University of
    Virginia School of Law (Professor Stephen A. Saltzburg, Supervising Attorney, University of
    Virginia School of Law on brief) for Appellee.
    The opinion of the court was delivered by: Butzner
    BUTZNER, Senior Circuit Judge:
    The Director of the Virginia Department of Corrections appeals from an order of the district
    court declaring the Church of Wicca to be a religion and enjoining prison officials from
    denying Herbert Dettmer, an inmate at Powhatan Correctional Center, access to six objects
    that he requested for use in the private meditation taught by the Church. We agree with the
    district court that the doctrine taught by the Church of Wicca is a religion, but we vacate the
    injunction because it is based on an erroneous legal premise and lacks evidentiary support.
    In 1982 Herbert Dettmer began studying witchcraft in a correspondence course provided by
    the Church of Wicca. Within a year he started meditating, following ceremonies for private
    meditation described in the correspondence course and in other writings that he had
    gathered. Dettmer decided that he needed the following items to aid and protect him while
    meditating: a white robe with a hood, sea salt or sulfur to draw a protective circle on the floor
    around him, candles and incense to focus his thoughts, a kitchen timer to awaken him from
    short trances, and a small, hollow statue of "one of the
    gods or goddesses of the deity," to store spiritual power called down during meditation.
    The Virginia Department of Corrections guideline 141, regulating inmates' personal property,
    requires that inmates wishing to purchase merchandise through the mail must place the order
    through the correctional officer in charge of inmates' property. This officer orders the item, if it
    is authorized by guideline 141. If not, the officer sends the request to the assistant warden for
    approval or disapproval. Late in 1983 Dettmer requested permission to order the items he
    needed for meditating. The property officer informed Dettmer that he would not be permitted
    to order them because guideline 141 did not list them as "authorized personal property."
    Dettmer appealed this decision to the warden, explaining that he needed the items for
    religious services. The acting warden responded by letter of December 16, 1983: "The items
    you have requested are not authorized under Division Guideline 141; therefore, your request
    is denied. The items you have requested are considered contraband regardless of the
    religious practices." Guideline 141 defines "contraband" as "generally, any unauthorized
    In an "informal resolution attempt" beginning January 5, 1984, Dettmer offered to
    accommodate prison officials' concern for security. He stated that salt would be an acceptable
    substitute for sulfur. He also asserted: "I have stated that I would provide a box with lock for
    these items and if need be then security could keep them in their possession until I checked
    them out in the evenings." Dettmer also stated that he would provide documents to show that
    the items were "needed for my religious practice."
    On January 10, Dettmer was informed that "the items listed in this grievance are not
    permissible in accordance with . . . [guideline 141]. The items are all considered contraband."
    Dettmer then appealed to the regional prison administrator. On March 1, 1984, the regional
    administrator responded that Dettmer would be allowed to use the chapel upon prior
    arrangement with the chaplain, during normal operating hours when the chapel was not being
    used by other inmates. The regional administrator found that the items requested are deemed
    to be a threat to the safety and security of any penal institution, and are not allowable under
    DGL 141 (Personal Property). However, if you can provide this office with written proof
    through doctrine, that the full practice of this rite, with the items you request, is a required
    tenet of your faith, reconsideration will be given to your request.
    Dettmer appealed this decision to the fourth level of the grievance procedure, stating that he
    had not yet been informed why the items were considered a threat to security. On September
    25, 1984, the deputy director for the department of corrections replied: "Your grievance has
    been appropriately considered and answered. I see no reason to alter the Regional
    Administrator's response." On October 29, 1984, Dettmer filed this action pursuant to 42
    U.S.C. ยบ 1983, alleging that the Virginia Department of Corrections had deprived him of
    freedom of religion.
    The district court held that the Church of Wicca is a religion, and it entered the
    following injunction:
    Accordingly, defendant is hereby ENJOINED from denying plaintiff access to the following
    items, with the conditions as set out below:
    (1): Sulfur, sea salt or uniodized salt: Because plaintiff has indicated that any one of these
    three items would be equally acceptable, the prison may designate which item plaintiff may be
    allowed to use.
    (2): Quartz clock with alarm: Plaintiff has indicated that a quartz clock with an alarm would be
    an acceptable substitute for the kitchen timer, since prison officials expressed the concern
    that a timer could be used as a detonator.
    (3): Candles.
    (4): Incense.
    (5): A white robe without a hood.
    (6): The prison may take general custody of the above items, and simply make them available
    to the plaintiff at reasonable times for plaintiff's worship services, which the prison may
    supervise. The plaintiff has agreed to provide a secure box for the purpose of storing the
    On appeal, the government asserts that the Church of Wicca is not a religion entitled to the
    protection of the first amendment. Even if the Church of Wicca is a religion, the government
    contends, Dettmer's meditation ceremonies using the requested items are not entitled to first
    amendment protection because the doctrine of the Church of Wicca does not require use of
    these items. Finally, the government contends that even if the items are necessary, prison
    officials reasonably forbade Dettmer to possess them because they would endanger prison
    In determining whether the Church of Wicca is a religion protected by the free exercise clause
    of the first amendment, the district court properly considered whether the Church occupies a
    place in the lives of its members "parallel to that filled by the orthodox belief in God" in
    religions more widely accepted in the United States. United States v. Seeger, 380 U.S. 163,
    166, 13 L. Ed. 2d 733, 85 S. Ct. 850 (1964). The district court found that members of the
    Church of Wicca "adhere to a fairly complex set of doctrines relating to the spiritual
    aspect of their lives." These doctrines concern ultimate questions of human life, as do
    the doctrines of recognized religions. See Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d
    Cir. 1982); International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440
    (2d Cir. 1981); Malnak v. Yogi, 592 F.2d 197, 208 (3d Cir. 1979) (Adams, J., concurring).
    The district court also found that the contents of many of these doctrines parallel those of
    more conventional religions. The Church of Wicca, the court found, believes in another
    world and has a "broad concern for improving the quality of life for others." Dettmer
    testified to his belief in a "supreme being."
    The district court also noted that the Church's doctrines teach ceremonies parallel to those of
    recognized religions. Members of the Church of Wicca worship both individually and
    corporately. Members also follow spiritual leaders. Dettmer testified that he planned to
    conduct ceremonies privately and hoped to have the aid of a spiritual leader from the outside
    community in conducting ceremonies for other inmates. The record showed that he had
    sought guidance from Wiccan leaders and for several years had been studying the doctrines
    of the Church of Wicca as expressed by these leaders in books, pamphlets, and a
    correspondence course of study. Another objective criterion showing the Church of Wicca to
    be parallel to recognized religions is witchcraft's long history. Cf. International Society for
    Krishna Consciousness, 650 F.2d at 440. Dettmer's evidence includes a handbook for
    chaplains published by the United States, which states that witchcraft enjoyed a following in
    Northern Europe during the Middle Ages as an ancient pagan faith, losing public expression
    when systematic persecution began in the fifteenth century. It regained some popularity after
    repeal of English witchcraft laws, and the handbook estimates that there are between 10,000
    and 100,000 adherents in America.
    The government contends that the doctrine of the Church of Wicca is not a religion because it
    is a "conglomeration" of "various aspects of the occult, such as faith healing, self-hypnosis,
    tarot card reading, and spell casting, none of which would be considered religious practices
    standing alone." The government argues essentially that because it finds witchcraft to be
    illogical and internally inconsistent, witchcraft cannot be a religion. The Supreme Court has
    held to the contrary that "religious beliefs need not be acceptable, logical, consistent, or
    comprehensible to others in order to merit First Amendment protection." Thomas v. Review
    Board, 450 U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981).
    The government argues that even if Dettmer's beliefs may be termed "religious," his rites are
    not. The government characterizes Dettmer's practices as more akin to meditation than to
    religion. It asserts that Wiccan meditation is "primarily designed to assist the practitioner to
    master the concept of positive thinking and to find internal contentment." Dettmer testified,
    however, that he meditated to "call down power" from "the supreme being" and other deities.
    The parties stipulated to Dettmer's sincerity. The district court properly concluded that
    Dettmer's meditation ceremonies are religious. See Malnak, 592 F.2d at 198 n.2 and 199.
    The government also contends that Dettmer's rites are not protected by the first amendment
    because he has not proved that the items he requested are required by the Church of Wicca.
    Religious observances need not be uniform to merit the protection of the first amendment.
    The Supreme Court has recognized that differing beliefs and practices are not uncommon
    among followers of a particular creed. Thomas v. Review Board, 450 U.S. at 715. "It is not
    within the judicial function and judicial competence to inquire whether the petitioner or
    [another practitioner] more correctly perceived the commands of their common faith. Courts
    are not arbiters of scriptural interpretation." 450 U.S. at 716. See also Barrett v. Virginia, 689
    F.2d 498, 501 n.5 (4th Cir. 1982).
    Dettmer testified he believed the items are necessary, because meditating without them
    would pose "a dangerous threat to my well-being because we are dealing with the spirit
    world." The district court properly concluded that the prison's denial of access to the items
    that Dettmer sought was subject to the requirements of the first amendment. See Gallahan v.
    Hollyfield, 670 F.2d 1345 (4th Cir. 1982).
    We agree with the district court that the Church of Wicca occupies a place in the lives
    of its members parallel to that of more conventional religions. Consequently, its
    doctrine must be considered a religion. See Seeger, 380 U.S. at 166; Malnak, 592 F.2d at
    207-10 (Adams, J., concurring).
    No prisoner at the Correctional Center is allowed to possess the items Dettmer wants. The
    security chief explained his concerns as follows:
    A white hooded robe could conceal a prisoner's face, and its resemblance to a Ku Klux Klan
    robe would likely provoke adverse reaction from other prisoners;
    Candles can be used as timing devices and to make impressions of keys;
    A hollow statue can be used to conceal contraband; Sulphur can be used to make an
    Incense can be used to disguise the odor of marijuana; and
    A kitchen timer can be used as a detonation device.
    The state also objects to Dettmer's suggestion that the items be kept in a locked box in the
    property office when he is not using them. The custodian of the property office testified that
    contraband owned by prisoners is stored there until arrangements are made for its
    disposition, but no facilities exist for checking it in and out daily to prisoners. The officer also
    testified that candles used for chapel services are not furnished by the prisoners. The state
    opposes providing individual surveillance of Dettmer while he possesses the disputed items
    during his daily meditation because of the burden this would impose, especially if other
    prisoners sought similar exceptions to prison routine.
    Although the state has steadfastly insisted that Dettmer's action should be dismissed on the
    ground that the Church of Wicca is not a religion, it also has taken the position that Dettmer
    may practice his beliefs as long as he does not interfere with prison security. Dettmer has
    permission to use the chapel when other services are not being conducted. All prisoners can
    have bathrobes or boxing robes, watches, and clocks. Dettmer is no exception. He can wear
    a robe that has no hood and he can use a quartz watch or clock instead of a kitchen timing
    device. There is apparently no objection to a statue that is solid, so that contraband cannot be
    concealed in it, provided it is small and light enough to preclude its use as a weapon. These
    accommodations are acceptable to Dettmer. Also, Dettmer is willing to substitute salt for
    sulphur. Thus, the dispute has been narrowed to the government's objection to Dettmer's
    possession of candles, incense, and salt during his meditation, and to its refusal to allow him
    to store these items in a locked box in the property office when he is not using them.
    Putting aside the prison official's concerns, the district
    court held:
    To the extent that any of the prison's asserted justifications are legitimate, they are not
    warranted in this instance because less restrictive alternatives are available to the state.
    Prison authorities may simply keep the controversial items in a safe location, and make them
    available to the plaintiff at reasonable intervals as plaintiff may require them, and under such
    supervision as the defendant believes is necessary to promote prison security.
    As this quotation illustrates, the legal predicate for the district court's injunction is the court's
    perception that the prison authorities had a duty to impose the least restrictive alternatives to
    satisfy the need for security. The least restrictive means test is appropriate for most
    encounters between state regulations and first amendment claims. See Thomas v. Review
    Board, 450 U.S. at 718 ("The state may justify an inroad on religious liberty by showing that it
    is the least restrictive means of
    achieving some compelling state interest.").
    But the least restrictive means test is not an appropriate measure of a prisoner's first
    amendment rights. Prisoners retain the right to freedom of religion. Bell v. Wolfish, 441 U.S.
    520, 545, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Moreover, a prisoner must be accorded "a
    reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow
    prisoners who adhere to conventional religious precepts." Cruz v. Beto, 405 U.S. 319, 322, 31
    L. Ed. 2d 263, 92 S. Ct. 1079 (1972). In Bell v. Wolfish the Court reiterated: "When an
    institutional restriction infringes a specific constitutional guarantee, such as the First
    Amendment, the practice must be evaluated in the light of the central objective of prison
    administration, safeguarding institutional security." 441
    U.S. at 547. In evaluating the restrictions, courts must accord "wide-ranging deference" to
    prison administrators' decisions concerning the proper means to accommodate prisoners'
    rights to the needs of "internal order and discipline," unless there is "substantial evidence in
    the record to indicate that the officials have exaggerated their response to these
    considerations." 441 U.S. at 547-48.
    Affording officials the deference that Bell v. Wolfish commands, we conclude that the security
    officer's concern about inmates' unsupervised possession of candles, salt, and incense is
    reasonable. See Childs v. Duckworth, 705 F.2d 915, 921 (7th Cir. 1983). There is no
    substantial evidence indicating that prison officials exaggerate the difficulties in supervising
    individual inmates' use of contraband articles in religious rites. See Bell v. Wolfish, 441 U.S. at
    Although clergy may use candles during religious services in the prison, no prisoners, not
    even those participating in conventional religious services, are allowed to possess them. The
    decision to prohibit Dettmer from possessing the items that he sought did not discriminate
    against him because of his unconventional beliefs. See Cruz v. Beto, 405 U.S. at 322.
    The restrictions imposed on Dettmer must be viewed in context of the accommodations
    officials have made to allow him to observe his religious beliefs. Considered in this manner,
    the restrictions do not infringe the rights secured to him by the first and fourteenth
    amendments. We affirm the district court's judgement that the doctrine proclaimed by
    the Church of Wicca is a religion entitling Dettmer to the protection that the first
    amendment affords prisoners. The injunction, however, is premised on a principle that does
    not apply to prisoners. Tested by the applicable precepts of Bell v. Wolfish and Cruz v. Beto,
    the injunction is not warranted by the evidence.