Several facts developed during the proceedings had at Atlanta in the case of Theriault v. Carlson, 339 F. Supp. 375, and succinctly restated by the Fifth Circuit in Theriault I and II, n3 are relevant to this Court's consideration herein. Among these are:
1. That "the Eclatarian faith, or Church of the New Song, was originally founded by Theriault and Jerry M. Dorrough at the federal penitentiary at Atlanta, Georgia, allegedly as the result of visions experienced by Theriault at the Marion, Illinois federal penitentiary in which he received prophetic messages from 'Eclat' informing him that he was the 'Eclatarian Nazarite' and directing him to establish the Church of the New Song." Theriault I and II, supra, footnote 1, p. 391;
2. That "Theriault acquired his Doctor of Divinity certificate through a mail order application. Theriault then, as self-appointed 'Bishop of Tellus' ordained Dorrough First Revelation Minister of the Church of the New Song . . .", supra, footnote 2, p. 392;
* * *
7. That Harry W. Theriault claims to be, among other things, the second Messiah, the Bishop of Earth (Tellus) (See generally Paratestament, Theriault) supra; and
8. That in the document submitted by Harry W. Theriault he claims that he would have established a new World order by 1976.
* * *
The Church of the New Song appears not to be a religion, but rather as a masquerade designed to obtain First Amendment protection for acts which otherwise would be unlawful and/or reasonably disallowed by the various prison authorities but for the attempts which have been and are being made to classify them as "religious" and, therefore, presumably protected by the First Amendment.
Rather than urging upon its followers any particular theology or philosophy of life, the Church of the New Song appears to encourage a relatively non-structured and free-form, do-as-you-please philosophy, the sole purpose of which is to cause or encourage disruption of established prison discipline for the sake of disruption. Disruption of and/or problems for prison authorities is not the result of this so-called religion; it is rather the underlying purpose of it. For example, the "Church's" one attempt at a paschal type feast produced a tongue-in-cheek request for prison authorities to supply steak and wine.
From: "Marty Lederman" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>
Subject: Church of Body Modification Case.
Date: Mon, 6 Dec 2004 10:05:34 -0500
Actually, I see no reason at all to think that this religion is in any way bogus -- any more than mainstream religions with which we are much more familiar. More to the point, it need not be an actual established "religion," as such, in order to be protected by title VII's religious accommodation provision. That law has been construed by the EEOC to track the Seeger/Welch definitions of "religion," i.e., to protect "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." 29 CFR 1605.1.
Which leads back to Marc's question: Is a "grooming" rule based upon customer "preference" permissible in this area, even though an employer obviously could not facially discriminate against blacks, or women, or Jews, just because of customer preference? I'm not sure what the answer is, but I do want to suggest that the cases are not exactly parallel. In the classic "customer veto" case, the customers themselves would be discriminating on the basis of the protected characteristic, and therefore the law quite naturally does not permit the employer to tailor her business practices to account for such customer biases. In this case, presumably the employer's not-implausible assumption is that customers will, rightly or wrongly, look askance on multiple body piercings, not because they view such piercings as religious in nature (to the contrary -- they'd probably be as surprised as Richard that the piercings are religiously motivated), but instead because of mainstream Western orthodoxy w/r/t such piercings (ok on ears, not-so-ok on other parts of the face). I'm not sure how this would or should cut under title VII, but I suspect the CTA1 is correct that courts have generally sided with employers in such cases.
From: Menard, Richard H. To: 'Law & Religion issues for Law Academics' Sent: Monday, December 06, 2004 9:41 AM Subject: RE: Steven Williams Case .:. .:.
I've seen that in RFRA and RLUIPA cases: an almost neurotic reluctance to call a bogus "religion" a spade. Makes for messy jurisprudence, but by and large the cases seem to come out right.
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Marc Stern
Sent: Monday, December 06, 2004 9:35 AM
To: Law & Religion issues for Law Academics
Subject: RE: Steven Williams Case .:. .:.
Could be, but the court specifically refused to rule on that issue.
Marc
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From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Menard, Richard H.
Sent: Monday, December 06, 2004 9:30 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Steven Williams Case .:.
I haven't read the opinion yet, but it sounds like a tacit judgment on the sincerity of the belief. Church of Body Modification, please.
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Marc Stern
Sent: Monday, December 06, 2004 9:25 AM
To: Law & Religion issues for Law Academics
Subject: RE: Steven Williams Case .:.
The First Circuit last week decided Cloutier v. Costco Wholesale Corp, 04-1475 a Tile VII religious accommodation case. The plaintiff claimed to be a member of the Church of Body Modification which required members to wear facial jewelry. Such jewelry violated Costco's no facial jewelry policy. The Court found that an accommodation of the faith would have constituted undue hardship to Costco because customers would be offended by the appearance of facial jewelry." Courts....have also upheld dress code policies that....are designed to appeal to customer preference or to promote a professional public image."
I find this astonishing. No court would uphold a whites only hiring policy on ground of customer preference. Airlines long ago lost the argument about customer preferences for sexy stewardesses. Why is religious garb different?
The judicial evisceration of Title VII's religious accommodation provisions continues apace.
Marc Stern
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