Legal Analysis and Commentary from Justia
Posted In Criminal Law

The Overland Park, Kansas, Anti-Semitic Killer, the Kansas RFRA, the Federal RFRA, and RLUIPA

Klan MemberWhen a man shot up a Jewish community center and nursing home in Overland Park, Kansas, last week, it did not take long to figure out he was a white supremacist who is viciously anti-Semitic. Jewish entities were on alert, because of the unusual confluence of Easter, Passover, and Hitler’s birthday (April 20) this year. His name is Frazier Glenn Miller and he has been charged with capital murder in the deaths of a 14-year-old boy and his grandfather, and with murder in the death of a woman. He is the epitome of evil.

To be honest, I don’t care what his name is, because what is far more important is that Americans understand he is not some lone gunman who happened to lose it one day. He is part of a movement of like-minded believers who hold virulent, white supremacist, anti-Semitic, racist, and misogynist views in the United States. Some, like him, pair those beliefs with violent intentions and actions.

The white supremacist movement is evident in various groups catalogued by the Southern Poverty Law Center (SPLC), which performs a critically needed public service by tracking hate groups across the United States. These believers are not shy. For example, some have been trying to overtake a town in North Dakota. Not all white supremacists share the same religious source for their beliefs, however.

Miller’s Religious Beliefs

Most in Miller’s shoes, e.g., your typical Ku Klux Klan member, trace their beliefs to a branch of Christianity, but Miller does not fit that bill. According to CNN, he is an Odinist, which is a neo-pagan religion, derived from Norse mythology. While pagan religions like Odinism and Asatru traditionally have been peaceful, some people, particularly in the prisons, have transformed them into repositories for racist, hate-filled beliefs. He fits into that category.

The SPLC states the following on its website about their burgeoning presence in the prisons: “In a 2004 report, the National Gang Crime Research Center surveyed prison officials in 49 states and found that Odinists, Asatruers and Wotansvolk were the most common ‘white racist extremist religious front groups proselytizing American prison inmates today.’”

The Overland Park killer was clearly not in prison, but roaming free. And he is not alone on the outside. In fact, white supremacist religious believers live across the United States. Note that the brand-new Mayor of Marionville, Missouri, is on record as agreeing with the views of this vicious killer. In fact, white supremacist religious believers live across the United States. The mayor disavows violence, but what public figure wouldn’t in light of these murders?

It matters whether Miller’s actions arose from religious beliefs, because if so, perhaps he can raise the federal and state RFRAs as a defense.

The Kansas RFRA, Otherwise Known as the Kansas Preserve Religious Freedom Act) and Federal RFRA for Murderers Charged with Capital Crimes

Miller who is now in prison, and facing the death penalty, is likely to invoke the Kansas RFRA, otherwise known as the Kansas Preserve Religious Freedom Act. The law is your basic extreme religious liberty statute: if the believer proves the law imposes a substantial burden, the burden shifts to the government to prove the law serves a compelling interest in the least restrictive means for this believer.

Miller is a religious believer—an odious one, to be sure—but he, like all other religious believers in Kansas, may invoke its benefits against every single state law: “The Act applies to all government action, including state and local laws, ordinances, rules, regulations, and policies, and to their implementation, whether enacted or adopted before, on, or after the Act’s effective date.”

There is, however, an interesting wrinkle in the Kansas RFRA, which states that it shall not be construed to “[p]rotect actions or decisions to end the life of any adult or child, born or unborn.” I assume this language is in place pursuant to pressure from pro-life religious groups, whose focus would be on preventing its use in the aid of abortions or assisted suicide. The plain language also seems to say, though, that it doesn’t protect murderers, which would be bad news for Miller.

But let’s suppose this language was clearly intended to be limited to cases of abortion and assisted suicide, and the Kansas legislature never considered murderers. Then he could argue that he should receive the Kansas RFRA’s shield, and, even if the state has a compelling interest in putting to death vile criminals like him, the death penalty is not the “least restrictive means.” A life sentence is “less restrictive” than death.

On the other hand, if Miller were charged by federal prosecutors, he could definitely invoke the federal RFRA and force consideration of whether the death penalty is the “least restrictive” means of regulating his conduct.

The Like-Minded White Supremacists in the Prisons and the Laws that Protect Them: RFRA and RLUIPA

The United States has a growth industry in white supremacists, with beliefs like Miller’s, in the prisons. There are many factors at play, but one undeniable element is the brooding omnipresence of the Religious Freedom Restoration Act (RFRA, which applies in the federal prisons) and the Religious Land Use and Institutionalized Persons Act (RLUIPA, which applies in the state prisons). These two laws handcuff prison administrators to an extreme religious liberty standard, which I described here, and which is unreasonable in the prison context.

Before these two laws entered the scene, prisoners did not have the advantage of super strict scrutiny to challenge prison regulations. At most, their constitutional claims were subjected to relatively low-level scrutiny under Turner v. Safley, and, more specifically, their free exercise claims were subjected to rationality review under O’Lone v. Estate of Shabazz.

The Supreme Court had an opportunity in 2005 to declare RLUIPA unconstitutional in the context of a facial challenge from the state of Ohio. That case, Cutter v. Wilkinson, involved a group of “nontraditional” faiths, including Asatru, that invoked RLUIPA to obtain accommodation of their religious practices. The Ohio state prison system responded by saying that the extreme version of religious liberty mandated by RLUIPA, in the prison context, was a violation of the separation of church and state and a true threat to prison security and safety.

A unanimous Supreme Court declined to rule RLUIPA unconstitutional across the board, but issued a decision with many caveats, including an invitation for as-applied challenges in the future:

Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

The prisons continue to struggle, and now the Supreme Court has granted certiorari in a new prison case, involving a prisoner who is fighting the Arkansas prison’s rule against facial hair. Unless the Court takes more seriously this time the very real threats inside prison walls, it will once again fail to do the right thing. Hopefully, Miller will remind them that many prisoners, like he is now, are not benign.

White supremacists are alive and real in the United States, and this newest reminder out of Overland Park should force everyone to adopt more realistic assessments of what extreme religious liberty portends. Even if such a believer can’t win under RFRA as its supporters no doubt will argue, such a statutory system is nonsense when you consider the wide variety of troubling conduct motivated by religious belief.

Had Arizona’s Gov. Jan Brewer not overruled its wrongheaded law to empower private businesses to invoke RFRA against people whose practices they disapproved, white supremacists like Miller, the Mayor of Marionville, and many ex-cons could have invoked it against Jews, blacks, and everyone else they loathe. Likewise, one can only laugh at the Mississippi business owners who have now pledged that they won’t take advantage of the new Mississippi RFRA to discriminate. What good does that do? They don’t control the rest of the Mississippi businesses. We now have a vivid reminder that there are plenty in our country who would never sign such a pledge. Ever.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
Print this page
  • Rob Goodson

    Odinism is being used, much like Islam or Christianity in the middle east, as some sort of label for extremist anti-social.

    As a participant in the University of Lund’s (Sweden) conference, “Perspectives in Old Norse Religion” in the mid 90’s , and as a lifelong Odinist, here is another perspective, from my point of view alone.

    Odinism and Asatru are very different, and should be treated and differentiated from each other.

    Asatru, in Europe specifically, is dedicated to the to the “old” practices of worship and re-creation of those practices and customs as interpretations inspired by the Saga’s and the evidence they see, or chose to adopt.

    Asatru in the North American context, is somewhat patterned on that same point of reference, but hampered by the language barrier often has widely divergent points of theology, practice and methodology.

    Both perspectives gained traction in the late 1970’s, Iceland leading the way as the first Government acknowledged and sanctioned “Asatru” (or more correctly Ásatrúarfélagið) Religion. The Icelandic version differing wildly from Asatru in the USA and Canada, yet still holding somewhat to the re-construction of the faith, the practices, in general, are almost entirely different until the 1990’s.

    Odinism, by comparison, is far older. Dating at least (in current form) to the 1920’s and 1930’s reliably – and have a totally different focus.

    That is that worldwide Odinism is the evolved practice of the faith, theology and religion in the modern day, with no pretext of re-creation and encompassing the full range of the human experience to date. ( The phrase being “Kindle’s and cars or swords and cloaks” in the community.)

    Being an Odinist allows me to make the observation that this person has had, and will have no claim whatsoever to being a “Odinist” whatsoever. The act was one of craven hideousness devoid of any value, and a absolute rejection of the moral, civil and religion of Odinism. He is totally delusional if he thinks any value can be placed in co-opting the label of Odinism, and is repugnant and repulsive to sincere adherents of Odinism, to say the least.

    Although I have never been in prison (along with a vast majority of Odinists) , I would highly doubt he can find a place in the incarcerated population of Odinists, I think that they would reject him outright as the ridiculous degenerate coward his deeds have shown him to be.

  • FJM

    As a practicing criminal defense attorney for 32 years, I fail to see how any RFRA statute can provide a defense to a homicide charge. Ludicrous ideas should not be passed along as scholarly works.

  • ingeborg oppenheimer

    side bar: while this article is about the religious issue involved in prosecuting such cases there is another – more relevant – issue; that is, our sentencing structure. this man was not in prison at the time he committed these acts but he had been in prison before following conviction for violence-related behavior. so what this tragedy demonstrates once again is the need to re-examine our
    sentencing laws. sentencing for criminal offenses is time-based – so many years
    for this or that crime. no consideration is reflected in these laws of whether
    or not the felon has changed his or her outlook such that it can be hoped there
    would be no repetition of the crime already committed. if, on the other hand,
    there were a system of pre-release psychiatric assessment aimed at ascertaining
    whether it is safe to allow this individual to return to free society, so many
    people might now be alive who were killed by individuals such as this mr. miller
    [or whatever his real name is] who makes no bones about his outlook as a white
    supremacist and has a known history of weapons possession and threats to kill. in other words, sentencing laws for violent felons should be based on assessment of their no longer being a threat to society, rather than on so many years for this-or-that crime.

  • Victor Grunden

    Much of this discussion centers on convicts. They’re called “cons” for a reason. This whole religious freedom right is a result of laws most of these haters opposed. They quite simply are running a con and couldn’t care less what religion they use. Chuck Colson of Watergate fame has his Prison Ministries, Black Muslims has found their greatest number of converts inside prison walls. Once released, they can congregate in religious worship and apparently not violate the “no association with known criminals” part of their release. As far as business refusing to serve someone because they feel uncomfortable for whatever reason, this debate went on before the RFRA and other laws were passed. If someone is openly hostile to your beliefs and request your services, you have to wonder if they are setting you up for a lawsuit, or at the least bad reviews and eventual demise of your business when they could choose people more amenable to them. Should they fail to pay their bills, it could destroy a small business. I would just ask for a substantial, like 3X, up front and insist on arbitration. Then the laws, other than contract law, are moot.

 

Access this column at http://j.st/ZKiT