Asatru is a polytheistic religion that originated several centuries ago in Northern Europe. Asatru is a decentralized religion with no spiritual leader or governing religious authority. Although Asatru practitioners observe general principles of the religion, each member exercises his or her faith in a personal manner.

In Krieger v. Brown, No. 10-7576 (4th Cir. 2012), the plaintiff, Johan Krieger, who is incarcerated in a state correctional facility in North Carolina, practices Asatru. The North Carolina Department of Corrections (NCDOC) recognizes Asatru as an approved religion. To develop a policy to accommodate inmates practicing Asatru, the NCDOC consulted Valgard Murray, the leader of the “Asatru Alliance, the oldest and largest Asatru church in North America.”

The NCDOC developed a policy to permit prisoners access to certain items used in the most common Asatru ceremony, called “Blot.” Permitted items include a picture of a Thor Hammer, a cardboard sword, a cardboard staff, an altar and altar cloth and candles, a small evergreen twig, mead made from a fruit juice substitute or honey, a sacrificial bowl, runes, folk music, and pictures of various Gods and Goddesses of the Asatru faith. The NCDOC also permits other items for use in private worship practices.

In 2005, Krieger requested permission from the NCDOC to construct a large outdoor worship circle made of stones requiring “two tons of gravel, shrubbery, one-half ton of small stones, and at least 400 pounds of concrete to construct an altar.” In addition, Krieger requested several sacred items not included among the items approved by the NCDOC that he alleged were necessary for group worship: “a large piece of cloth for creating a banner, a large horn cap, an oath ring, heathen music, cardboard replicas of Thors hammer, a spear, a shield, an axe, and a bow and arrow.” Krieger also requested items for personal worship that were not approved by the NCDOC.

The NCDOC denied Kriegers requests and he sued two NCDOC employees in Federal District Court for the Eastern District of North Carolina, alleging that the denial of his requests for an outdoor worship circle and use of certain sacred items imposed a substantial burden on his free exercise of religion in violation of RLUIPA. Krieger also alleged that the denial violated his right to freely exercise his religion under the First Amendment. Krieger claimed that to practice Asatru, “he must utilize sacred items in the performance of well-established rituals.” To support his claims, Krieger submitted several exhibits, including “The Handbook of Asatru,” with a forward by Valgard Murray. Krieger later amended his request for an outdoor circle, “seeking only outdoor space for a worship circle and enough rocks to form a loose circle rather than an exact replica of [his previously submitted] design.”

The Federal District Court granted the NCDOCs motion for summary judgment because, it concluded, the denial of Kriegers requests placed only an incidental burden on his religious exercise under RLUIPA and, therefore, Krieger failed to establish a prima facie case. The Court also found that Kriegers First Amendment claim failed for the same reason.

Krieger appealed to the United States Court of Appeals for the Fourth Circuit, alleging that the District Court improperly evaluated the significance of the requested items to the practice of Asatru. According to Krieger, the District Court should have instead considered whether he had met his burden by showing that the deprivation of an outdoor worship circle and the requested items substantially burdened his religious exercise by forcing him to practice Asatru “differently than he otherwise would have.”

The Fourth Circuit affirmed. It found that Krieger failed to establish how requiring him to pray indoors would substantially burden his practice of Asatru. Although Krieger claimed that the “Blot” ceremony is “best performed outdoors,” the literature submitted by Krieger stated that practicing Asatru indoors is possible. Further, “the practice of Asatru is individualized and lacks any mandatory aspect of exercise, a fact readily acknowledged by Krieger.” Although Krieger alleged that the sacred items were “necessary” for “well-established rituals,” he failed to identify those rituals or explain how the absence of those items impacted the rituals or violated his beliefs. The literature submitted by Krieger included a list of “mandatory religious items for Asatru worship.” The items permitted by the NCDOC to prisoners practicing Asatru were identical to those included on the mandatory religious item list.

You can access the decision of the Fourth Circuit here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.