Memorandum opinion:

...Marsh is a practitioner of Wicca, which has been recognized by the Michigan Department of Corrections as a legitimate religious affiliation. He is a solitary practitioner of  Wicca, not a member of an organized group.Marsh ordered incense by mail to use in his religious observances. The defendants have denied Marsh the use of incense. In this suit, Marsh claims that the defendants have deprived him of his First Amendment right to freely exercise his religion and his Fourteenth Amendment
right to equal protection of the laws. For the reasons that follow, the Court will GRANT Marsh injunctive relief and damages.

Marsh seeks to burn incense on eight Holy days per year under supervision of the prison staff in the prison chapel. Defendant
Matchett has permitted Marsh to use the chapel on several occasions, and allowed him to burn a candle in the chapel. Defendant Matchett also has offered to allow Marsh to use Roman Catholic incense in Marsh's Wicca religious ceremonies. Native Americans are permitted to burn sweet grass and sage in connection with their religious observances. By court order in another matter, 2 Buddhists residing with the Michigan Department of Corrections are permitted to burn incense in designated areas.

Marsh filed a grievance with prison officials, seeking delivery of his incense, which he had ordered through a vendor approved by the Michigan Department of Corrections. At first the grievance was denied on the grounds that the incense was a threat to institutional security because it posed a fire hazard and could mask the odors of marijuana and spud juice.  Later the defendants took the position that burning incense is "not essential to the practice of Wicca." Defendant Matchett made this determination after consulting written material published by the "Church of Wicca" in New Berne, North Carolina. Defendants maintained this position, at least until the trial  of this case, despite Marsh having advised Pennell on August 21, 1997, that Marsh did not subscribe to the doctrines of that particular church.

Prisoners retain their First Amendment right to freely practice their religion. Cruz v. Beto, 405 U.S. 319, 322 (1972).  However, prisoners' constitutional rights may be subjected to reasonable restrictions and limitations. Bell v. Wolfish, 341 U.S. 520, 549-51 (1979). A prison regulation which infringes on a prisoner's constitutional rights is valid if it is reasonably related to legitimate penalogical interests. Turner v. Safley, 482 U.S. 78, 89 (1987). In Turner, the Supreme Court enumerated four factors to be evaluated in determining the reasonableness of such a prison regulation. Id at 89-90. Applying the Turner factors to this case, the United States Magistrate Judge concluded, in a report and recommendation dated December 1, 1997, that the defendants had indeed acted unreasonably in denying Marsh the incense in his religious ceremonies. The United States Magistrate Judge determined that the institutional security concerns were not legitimate; any concerns about personnel shortage were unfounded; and Marsh's desire to burn incense could be easily accommodated. The parties in the pretrial order have indeed stipulated that it is unreasonable for the plaintiff to be banned from using incense.

However, there remains the question whether the Free Exercise Clause is applicable to Marsh's case, because the defendants have heretofore said that Marsh does not need the incense to practice Wicca. The Free Exercise Clause only protects beliefs that are "rooted" in Marsh's religious beliefs. Thomas v. Review Ed. of the Indiana Employment Security Div., 450 U.S. 707, 713 (1981); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The task of determining what is a religious belief or practice has been described as "difficult" and "delicate." Thomas, 450 U.S. at 714. Courts are not "to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Hernandez v. Comm 'r Internal Revenue, 490 U.S. 680, 699 (1989); Thomas, 450 U.S. at 716. This Court may only perform the "narrow function" of determining whether Marsh's desired practice of burning incense arises out of his honest conviction that it is required by Wicca. Thomas, 450 U.S. at 716. Whether or not other practitioners of Wicca hold different beliefs is not determinative. Id at 715-716.

According to expert testimony, Wicca is a neopagan religion having its roots in pre-Christian Europe. Wicca accepts a number of Deities representing things found in nature. Because they have no permanent, dedicated places of worship, Wiccans create sacred worship space by "casting a circle." In doing this, Wiccans use elements representing air, earth, water, and fire. Incense represents air. Wicca is not a doctrinaire set of beliefs, but is more akin to a set of practices which vary between groups and between individual practitioners.  There are more solitary practitioners than group practitioners of Wicca. Marsh is a solitary practitioner.

It is possible to cast a Wiccan circle without the use of incense. However, many Wiccans believe that incense is necessary to cast a circle. Marsh believes so. As is the case with some other religions, Wicca utilizes incense for other purposes, such as cleansing and promotion of a religious feeling that could include love, protection, and healing. The Court finds that the use of incense does have a role in Wicca, though it is not the sine qua non of the religion for some of its practitioners. The Court further finds that Marsh genuinely believes that the use of incense is essential to his practice of Wicca. That other Wiccans, such as the Church of Wicca, believe otherwise, does not mean that Marsh's beliefs are not protected by the Free Exercise Clause. Thomas, 450 U. S. at 715-716. Therefore, it is clear that the defendants, by denying plaintiff Marsh incense to practice Wicca, have violated his First Amendment free exercise right.

Additionally, defendants have denied Marsh equal protection of the laws under the  Fourteenth Amendment. Because Marsh does not allege that he is a member of a suspect class, to prevail in his equal protection claim he must prove that (1) persons who are similarly situated are treated differently by the state, and that (2) the government has failed to provide a rational basis for the dissimilar treatment. Hosna v. Groose, 80 F.3d 298, 304 (8th Cir. 1996); see Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-442 (1985).

Native American inmates are permitted to "smudge" sweet grass, sage, and other medical plants in their cells in furtherance of their religious practices. Buddhists are now allowed to burn incense in prison chapels or other designated prison locations. Defendants have not been able to provide any explanation why Marsh as a Wiccan is not similarly situated with those religious adherents. In fact, there is testimony that Wiccan incense could be comprised of the same plant material used by the Native Americans.  Finally, the defendants offer no rational basis whatsoever for treating Marsh differently from Native Americans and Buddhists.  The defendants have conceded that the ban on Marsh's receiving incense is not reasonably related to any penalogical interest. Hosna, 80 F.3d at 304-05.

The defendants are under no obligation to provide every religious sect or group in the prison with identical facilities, Cruz, 405 U.S. at 322 n.2; Thompson v. Commonwealth of Kentucky, 712 F.2d 1078, 1082 (6th Cir. 1983). Prison officials must be "accorded latitude in the administration of prison affairs." Cruz, 450 U.S. at 321. Nonetheless, in this particular case, it is clear that Marsh was treated differently from similarly situated inmates for no reason at all. Marsh is clearly entitled to an order enjoining the defendants from prohibiting his religious use of incense in the Marquette Branch prison chapel or similar facility, should the plaintiff be transferred to another prison.

Marsh is also entitled to recover compensatory damages for emotional distress. While the compensatory damages resulting from Marsh's having missed celebrating Holy days since mid-1995 are difficult to ascertain, those damages will be assessed at a total of $300.00. Marsh shall also recover his attorney fees in accordance with 42 U.S.C.  1988. An appropriate judgment will enter.

R. ALLAN EDGAR, UNITED STATES DISTRICT JUDGE

Reference:

David Marsh, Plaintiff; John Hawley, George Pennell II, and Bob Batchett, Defendants; United States District Court, Western District of Michigan, Northern Division, No. 2:95-cv-285. 1988-JUN-30

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