My paternal grandmother could be extraordinarily unkind. She had a number of epithets that she used to describe people she disapproved of. Among them was "pagan." I was probably in first or second grade when I asked her what "pagan" meant. After explaining it, she added that the person she was describing wasn't really a pagan and that she'd never met a real pagan.
Her problem is that she died in 1967. Today there are plenty of self-described pagans. Indeed, in the course of some research, I learned recently that the worship of ancient Norse gods is business as usual in American prisons. Well ...uh...not that there's anything wrong with that.
A significant part of the explanation for the growth of neo-paganism in prisons is the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), which applies to state prisons, and its kindred Religious Freedom Restoration Act ("RFRA"), which applies to federal prisons. RLUIPA prohibits prison authorities from placing a "substantial burden" on the religious exercise of a prisoner unless the imposition of that burden "is in furtherance of a compelling governmental interest" and is the "least restrictive means of furthering that compelling governmental interest." It is no excuse that the "burden results from a rule of general applicability." The Act itself makes it clear that a prison may be "require[d] ... to incur expenses in its own operation to avoid imposing a substantial burden on religious exercise." Religious activity is thus given priority over other uses of time and money. Prison officials must essentially err on the side of greater religious freedom in issuing rules and regulations and in putting together budgets. For example, in Jackson v. Department of Corrections, 2006 Mass. Super. LEXIS 389 23 (Aug. 25, 2006), the court ordered the Massachusetts Department of Corrections to "employ an additional Imam" to conduct "weekly jum'ah services" for Muslim prisoners.
The self-described Wotanists are a good example of how such well-intentioned laws can be abused. Wotanists worship--or purport to worship--the ancient Norse gods, chief among them Wotan (or Odin). In fact, Wotanists tend to be white supremacists, whose taste in literature runs to racist screeds and violent rants. Prison officials, of course, are not required to take a prisoner's word for it when he claims adherence to a particular faith and argues that his free exercise of that faith is being substantially burdened by prison authorities. But they must be even-handed in how they evaluate the sincerity of those who purport to adhere to traditional and non-traditional religions. This can lead to "grievance fatigue" that may result in a tendency to err on the side of accommodation. If the authorities are not inclined to argue with a prisoner about whether he is "really" a Christian, they will be hesitant to argue about whether he is "really" a pagan.
Some Wotanist claims have reached litigation. See, e.g., Lindell v. McCallum, 352 F.3d 1107 (7th Cir. 2003)(vacating an entry of summary judgment against a Wotanist inmate); Borzych v. Frank, 439 F.3d 388, 390 (7th Cir. 2006)(noting that Wotanism is a religion that "entails the worship of Norse gods" and rejecting Wotanist inmate's claim that RLUIPA guarantees him books like The Temple of Wotan, which Wisconsin authorities had found to promote white-supremacist violence); Wood v. Main Department of Corrections, 2007 U.S. Dist. LEXIS 81146 (D. Me. Oct. 25, 2007)(recommendation of U.S. Magistrate to enter summary judgment against Wotanist inmate), summary judgment entered, 2008 U.S. Dist. LEXIS 42245 (D. Me. May 22, 2008).
It is not surprising that prison officials would try to avoid further litigation. The official handbook published by the Bureau of Prisons attempts to help prison officials deal with the various religions they will encounter. It treats Odinism/Asatru (an umbrella term for Norse religions, which includes the overtly racist Wotanism) as an ordinary religion along with Buddhism, Christianity and Islam. Among the long list of religious items that such a congregation is permitted to have is "Thor's Hammer." The Anti-Defamation League's Mark Pitcavage stated in an interview a few years ago, "Non-racist versions of Asatru and Odinism are pretty much acceptable religions in the prisons. But again, if it is a racist version of these religions, then those materials may be prohibited. I should add, though, that a recent law, [RLUIPA], puts the burden more squarely on prison officials to make their case that particular sects or practices pose threats to security."
Worshippers of Norse gods are not the only oddball religion to thrive in prisons. The Church of the New Song is more comical example. Originally founded as a "game" among prisoners, its adherents have filed more than a dozen lawsuits in federal court. Goff v. Graves, 362 F.3d 543, 546 (8th Cir. 2004). One court described the Church of the New Song, which goes by the acronym "CONS," as "a masquerade designed to obtain First Amendment protection for acts which would otherwise be unlawful an/or reasonably disallowed...." It reported that members of CONS had (apparently tongue-in-cheek) demanded meals of steak and wine as part of their religious regimen. Theriault v. Silber, 453 F. Supp. 254, 260 (W.D. Tex. 1978).
Are the benefits of RFRA and RLUIPA enough to outweigh problems like this? Maybe. I've heard very little grumbling from prison officials. But it's not difficult to see why some people are uncomfortable with RFRA and RLUIPA.
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