4th Circuit rejects N.C. inmate’s pagan-worship claim

Wednesday, November 14, 2012

A North Carolina prisoner does not have a religious-liberty right to an outdoor worship circle and certain religious items, a federal appeals court has ruled.

In 2005, inmate Johan Krieger asked officials at Scotland Correctional Institute for various items he considered necessary to practice his religious faith of Asatru — a polytheistic religion that arose centuries ago in Northern Europe. The North Carolina Department of Corrections recognizes Asatru as a religion and permits inmates to have certain items, such as an altar, a sacrificial bowl and a picture of Thor’s Hammer, a tool used to communicate with the Norse gods.

Krieger was not satisfied with these items. He asked the prison system to build a large outdoor worship circle made of stones. This worship circle is used in a sacrificial-offering ceremony known as the Blot. Krieger also asked for other sacred items, such as a large horn cup, a banner, an axe and a bow and arrow.

After officials denied his requests, Krieger filed a grievance internally in the prison system. Finding no relief there, he sued in federal court in July 2008. He contended prison officials violated his First Amendment right to exercise his religious beliefs freely and lodged a claim under the federal law known as RLUIPA — the Religious Land Use and Institutionalized Persons Act.

Under RLUIPA, prison officials cannot impose substantial burdens on an inmate’s religious liberties unless they can show their regulations further a compelling government interest and are the least-restrictive means of advancing that interest.

In October 2010, U.S. District Judge Louise W. Flanagan granted summary judgment in favor of the prison officials. She reasoned that Krieger did not show the denial of the outdoor worship circle and the other items imposed a substantial burden on his Asatru faith. Krieger “provided no religious basis on which the outdoor worship circle is essential to his religious practice, in that he has not stated how the denial of an outdoor worship circle has forced him to modify his behavior and violates his religious beliefs,” Flanagan wrote.

Krieger appealed the rejection of his RLUIPA claim to the 4th U.S. Circuit Court of Appeals, contending that the district court had erred in requiring him to show the outdoor worship circle was “essential” to his religious faith. He did not appeal the denial of his First Amendment free-exercise claim.

A three-judge panel of the 4th Circuit affirmed the lower court Nov. 8 in Krieger v. Brown.

The appeals court said Krieger had to show that denial of the worship circle and other materials substantially burdened his ability to practice his religion. To establish such a substantial burden, an inmate must show that the government “substantially pressured him to modify his behavior and to violate his religious beliefs.”

Krieger argued that the outdoor worship circle was necessary to practice his faith because the Blot ceremony is best performed outdoors. However, the appeals court found that “Krieger failed to offer any explanation regarding the reason why indoor worship would compromise his religious beliefs.”

The appeals court did agree with Krieger on one point — that the district court was wrong to write that he must show any part of his religious exercise is “essential” in order to establish a substantial burden. An inmate can show a substantial burden without showing that a particular religious item or practice is essential.

“Although the district court should not have used the term ‘essential’ in discussing the different characteristics of Asatru, this error in terminology did not affect the court’s application of the ‘substantial burden’ test,” the appeals panel wrote.

The panel applied a similar analysis to reject Krieger’s assertion that the denial of certain other items constituted a substantial burden on his religious faith.


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