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Fifth Circuit Revives Suit by Nation of Gods and Earth Prisoner Demanding Religious Recognition by Texas Prison Officials

by Matt Clarke

On July 11, 2022, the U.S. Court of Appeals for the Fifth Circuit reinstated a Texas prisoner’s suit against officials with the state Department of Criminal Justice (TDCJ) who had banned him and other members of the Nation of Gods and Earths (NOGE) from holding religious gatherings. Though TDCJ later changed its policy to permit NOGE gatherings “subject to time, space, and safety concerns,” the Court said it did not moot a suit challenging the ban.

TDCJ allows two types of communal religious services. Of the 10 recognized religious groups – Catholic, Non-Roman Catholic Christian, Islamic, Sabbatarian, Jewish, Native American, Neo-Pagan, Eastern, Jehovah’s Witnesses, and Mormon – each is allowed a “primary” service once a week and can request a “secondary” service “led by an approved outside volunteer, subject to time, place, and security considerations.” Adherents of non-recognized religions have no right to a primary service but may apply for a secondary service.

Between 2007 and 2014, TDCJ categorized NOGE as Islamic. Then, in 2014, TDCJ decided that NOGE was a racial supremacy group. Deciding that allowing adherents to congregate would pose a security threat, it banned NOGE from holding any services.

Prisoner and NOGE adherent George Lee Tucker II filed suit pro se in federal court for the Eastern District of Texas in 2014, challenging the NOGE ban under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq. The district court dismissed the claim. But Tucker successfully appealed, and the Fifth Circuit vacated the dismissal and remanded the case. See: Tucker v. Collier, 906 F.3d 295 (5th Cir. 2018).

While on remand, TDCJ changed its policy again, once more classifying NOGE adherents as Islamic. They could attend the primary Islamic service and “apply for secondary services subject to the same conditions as other faiths.” Arguing that this mooted Plaintiff’s claim, Defendants moved for summary judgment. The district court granted the motion on March 4, 2020. Again, Tucker appealed, this time represented by appointed counsel from attorneys with Ropes & Gray in New York City and Boston.

Taking up the case once more, the Fifth Circuit noted that Tucker’s complaint did not seek an equal right to apply for secondary services, but rather the right to congregate. However, “TDCJ’s policy change gives Tucker nothing more than the right to apply for congregation,” the Court said, and “to date TDCJ has never approved [NOGE] for congregation. And it is the latter that this suit seeks to obtain.”

Citing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982), the Court noted that the test for mootness is stringent, and TDCJ bore the burden of proving it. “Mere voluntary cessation of allegedly illegal conduct does not moot a case,” the Court explained, and TDCJ “has not even bothered to give Tucker any assurance that it will permanently cease engaging in the very conduct that he challenges.”

“To the contrary,” the Court continued, “TDCJ stated precisely the opposite during oral argument – TDCJ would not guarantee congregation in the future, but instead would reserve the question in light of potential ‘time, space, and security concerns.’”

“If anything,” the Court concluded, “it is far from clear that the government has ceased the challenged conduct at all, let alone with the permanence required under the ‘stringent’ standards that govern the m  ootness determination when a defendant claims voluntary compliance. For each of these reasons, this case cannot possibly be moot.”

Therefore judgment was reversed and the case remanded. See: Tucker v. Gaddis, 40 F.4th 289 (5th Cir. 2022).

The case has now returned to the district court, and PLN will update developments as they are available. See: Tucker v. Livingston, USDC (E.D. Tex.), Case No. 6:14-cv-00659.

The DOC in Connecticut settled a similar case by agreeing to recognize NOGE in its prisons in 2016, and a federal court ordered the Virginia DOC to do the same in 2018. [See: PLN, Apr. 2017, p.60; and May 2018, p.55.]

NOGE was founded in the early 1960s by Clarence 13X, after he left the Nation of Islam founded by Malcom X. Adherents believe that the wealthiest 10% of the population subjugates the poorest 85%, and that the remaining 5% are called to enlighten them (NOGE adherents are sometimes referred to as ‘Five Percenters.’)

“We don’t base religious protections in the United States on whether or not the particular faith has broad appeal,” said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University. “As much as I am deeply concerned about aspects of the [NOGE] philosophy, it’s their right and certainly it’s understandable that such a movement would germinate during a time when we still had laws banning interracial marriage and the Klan burning crosses throughout the south.”

Additional source: Washington Post

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