September 4, 1986
HERBERT DANIEL DETTMER, APPELLEE, v. ROBERT LANDON, DIRECTOR OF CORRECTIONS, APPELLANT
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)
for
Appellant.
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
item."
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
items.
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
security.
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
explosive;
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
547-48.
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.
AFFIRMED IN PART, REVERSED IN PART.