                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                  ___________

                             Nos. 02-1279/1449
                               ___________

George Goff,                          *
                                      *
      Plaintiff -                     *
      Appellee/Cross-Appellant,       *
                                      *
Tom Kane,                             *
                                      *
      Plaintiff,                      *
                                      *
William Barbee,                       *   Appeals from the United States
                                      *   District Court for the
      Plaintiff -                     *   Southern District of Iowa.
      Appellee/Cross-Appellant,       *
                                      *
Richard G. Shawhan,                   *
                                      *
      Plaintiff,                      *
                                      *
Jeff Winters, Tom Yarges,             *
                                      *
      Plaintiffs -                    *
      Appellees/Cross-Appellants,     *
                                      *
Lawrence Gladson, Kris Johnson,       *
                                      *
      Plaintiffs,                     *
                                      *
James Hall,                           *
                                      *
      Plaintiff -                     *
      Appellee/Cross-Appellant,       *
                                      *
Ronnie T. Dunbar, Michael Rinehart,   *
Wayne Berry, Jerry Sumpter,           *
Steve Ragan,                          *
                                      *
      Plaintiffs,                     *
                                      *
Michael Dean Gunn, Jr.,               *
                                      *
      Plaintiff -                     *
      Appellee/Cross-Appellant,       *
                                      *
Timothy M. Jacobson,                  *
                                      *
      Plaintiff,                      *
                                      *
Arthur Alan Poyner,                   *
                                      *
      Plaintiff -                     *
      Appellee/Cross-Appellant,       *
                                      *
Casey Gray, Tim Thompson,             *
Randy Jones,                          *
                                      *
      Plaintiffs,                     *
                                      *
Jon J. King, Adam M. Tanner,          *
Sam Archer,                           *
                                      *
      Plaintiffs -                    *
      Appellees/Cross-Appellants,     *
                                      *
Bryan Keller, Frankie Sutton,         *
Jeff Hass,                            *
                                      *
      Plaintiffs,                     *
                                      *

                                      -2-
Michael L. O'Donnell, Patrick          *
Cupples, Jim Dorsey, Jeffrey K.        *
Ragland,                               *
                                       *
      Plaintiffs -                     *
      Appellees/Cross-Appellants,      *
                                       *
      v.                               *
                                       *
Leonard Graves, Warden; Bernard        *
Eaves (added per pleading filed        *
9/9/98, Defs' Status Report); James    *
Helling (added per pleading filed      *
9/9/98, Defs' Status Report),          *
                                       *
      Defendants -                     *
      Appellants/Cross-Appellees.      *
                                       *
John Doe,                              *
                                       *
      Intervenor -                     *
      Intervenor on Appeal.            *
                                  ___________

                            Submitted: October 24, 2003

                            Filed: March 30, 2004 (Corrected 4/1/04)
                                  ___________

Before RILEY, BOWMAN, and SMITH, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

      Plaintiffs are inmates at the Iowa State Penitentiary (ISP) in Fort Madison,
Iowa. They all claim to be members of the Church of the New Song (CONS) at ISP.
CONS was founded in the early 1970s by a federal prisoner named Harry Theriault.

                                       -3-
Though Theriault testified that CONS was initially established as a "game," Theriault
v. Carlson, 339 F. Supp. 375, 377 (N.D. Ga. 1972), vacated, 495 F.2d 390 (5th Cir.
1974), in that case CONS was recognized as a religion protected by the First
Amendment. After a "trial run" in federal penal institutions in Georgia and Texas,
however, a federal district court in Texas determined that CONS was "not . . . a
religion, but rather . . . a masquerade designed to obtain First Amendment protection
for acts which otherwise would be unlawful and/or reasonably disallowed by the
various prison authorities but for the attempts . . . to classify them as 'religious' and,
therefore, presumably protected by the First Amendment." Theriault v. Silber, 453
F. Supp. 254, 260, 261 (W.D. Tex.), appeal dismissed, 579 F.2d 302 (5th Cir. 1978),
cert. denied, 440 U.S. 917 (1979). In contrast, this Court in 1974 recognized CONS
as a religion protected by the First Amendment and upheld a district court's order
mandating its equal treatment with other religions at the prison. Remmers v. Brewer,
494 F.2d 1277 (8th Cir.) (per curiam), aff'g 361 F. Supp. 537 (S.D. Iowa 1973), cert.
denied, 419 U.S. 1012 (1974).1 Because of the Remmers decision, we suspend
disbelief and proceed on the assumption, mandated by Remmers, that CONS is a
religion.

       The current controversy arose when ISP officials refused to permit food trays
prepared for CONS' "celebration of life" banquet to be taken to CONS members who
were in lock-up at the time of the banquet. Plaintiffs brought suit under 42 U.S.C.
§ 1983 (2000) claiming that ISP officials had violated their First Amendment rights
and were in contempt of the decree set forth in Remmers. Defendants, all prison
officials, counterclaimed and sought a declaratory judgment to prevent plaintiffs from



      1
        We note that in Remmers the district court relied heavily on the Georgia
federal district court's opinion in Theriault v. Carlson, 339 F. Supp. 375, 377 (N.D.
Ga. 1972), vacated, 495 F.2d 390 (5th Cir. 1974). At the time our Court affirmed the
district court's decision in Remmers, Theriault had not yet been vacated by the Fifth
Circuit.

                                           -4-
participating in CONS activities.2 The District Court denied the counterclaim and
entered an order requiring defendants to permit CONS inmates in lock-up to receive
trays of food from the banquet. Defendants appeal both the entry of the order and the
denial of declaratory relief. Plaintiffs cross-appeal the District Court's decision to
allow certain evidence to be admitted under seal and to enter an order protective of
confidential informants.

                                           I.

       In order to present a valid First Amendment claim against ISP officials,
plaintiffs have the burden of establishing that the alleged religious belief or ritual in
question—here the receipt of food from a feast for the "celebration of life"—is based
on a teaching of the CONS religion, that their belief in the teaching is sincerely held,
and that the governmental action in question actually infringes upon the individual
prisoners' free exercise of this belief. Hamilton v. Schriro, 74 F.3d 1545, 1550 (8th
Cir.), cert. denied, 519 U.S. 874 (1996). In its first order, the District Court found
that the "celebration of life" feast was rooted in religion and thus was a religious
belief protected under the First Amendment. Our review of such a finding is for clear
error. Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990). Because there is
insufficient evidence in the record to show that CONS instructs its adherents to hold
such a feast, we conclude the District Court clearly erred in finding that the
requirement of a feast for the "celebration of life" is a belief rooted in the CONS
religion.

       The record is filled with conflicting testimony by plaintiffs regarding the
significance of the "celebration of life" feast in the CONS religion. Plaintiffs first


      2
        Defendants have not asserted a claim that Remmers should be overruled, even
though new evidence appears to be available to show that CONS is a sham religion
that exists only in the prison context and serves as a cover for gang activity.

                                          -5-
claimed that a feast was required for "a Spring Celebration in honor of nature's
renewal of life." (Appellants' App. at 61). Plaintiffs then asserted that the
"celebration of life" commemorated the day on which the CONS was founded.
Finally, plaintiffs contended that it was one and the same as the Sacred Unity Feast
referenced in the Paratestament, a partial text of which is the sole written statement
of CONS theology and ritual that the record in this case contains.3 Given plaintiffs'
conflicting accounts of the meaning of the celebration, it is difficult to credit the
claim that the "celebration of life" feast is rooted in the CONS religion. The District
Court's finding that it was so rooted was premised upon its clearly erroneous
subsidiary finding that the celebration has direct support in the Paratestament. The
court arrived at this finding by accepting plaintiffs' argument that the "celebration of
life" feast is one and the same as the Sacred Unity Feast.

        Having read the portions of the Paratestament that the record on appeal
contains with some care, we conclude that without doubt the Sacred Unity Feast is
not one and the same as the "celebration of life" feast, which all sides appear to agree
is not mentioned as such in the Paratestament. According to the Paratestament, after
"the [h]undred and forty-four thousand Revelation ministers have been sealed as
prophesied" there will "be held a supper of the great God." (Id. at 240). It is only
after the sealing4 of these thousands of Revelation ministers that the Sacred Unity
Feast is to become an annual occurrence: "After this, each year on the same date the
Seminary of the Fountainhead5 in all purlieus will hold the Annual Sacred Unity Feast
. . . ." (Id. at 241). Plaintiffs point to this reference to the Sacred Unity Feast as
support for their annual "celebration of life," but it is apparent that the Sacred Unity


      3
       Indeed, the record on appeal contains only thirteen pages of the Paratestament.
Internal page numbers suggest the entire document is considerably longer.
      4
          We do not pause to delve into the meaning of "sealing" in this context.
      5
          Similarly, we do not pause to inquire into the makeup of the "Seminary."

                                           -6-
Feast is to be held only after the hundred and forty-four thousand Revelation
ministers have been sealed. There is no evidence to show that this condition
precedent has been satisfied. Inasmuch as the "celebration of life" is not mentioned
anywhere in any CONS text to which our attention has been directed, partaking of a
banquet for the "celebration of life" cannot be regarded as the exercise of a prescribed
ritual of the CONS religion. Accordingly, the prison officials did not violate the
plaintiffs' First Amendment rights by denying banquet trays to CONS members in
lock-up. If a sincerely-held belief was implicated, it was not a belief grounded in
CONS theology or its prescribed rituals as revealed by the materials the parties have
put forward for our examination.

       Even assuming arguendo that CONS somehow ordains a special "celebration
of life" banquet, ISP's ban on providing trays of food to CONS members in lock-up
does not violate any prisoner's free-exercise rights. Prison regulations may infringe
upon prisoners' constitutional rights so long as such regulations are reasonably related
to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). There
must be a rational connection between the challenged regulation and the interest put
forth to justify it. Id. Three other relevant factors are (1) the continued availability
of other means of exercising the right, (2) the effect that accommodation of the right
would have on other prisoners, on prison staff, and on prison resources, and (3) the
existence of ready alternatives to the challenged regulation. Id. at 90. We review de
novo a district court's application of Turner to the facts before it. Iron Eyes, 907 F.2d
at 813. We must accord great deference to the judgment of prison officials,
particularly with respect to decisions that implicate institutional security. Turner, 482
U.S. at 84–85; Iron Eyes, 907 F.2d at 812.

       Defendants argue that they prohibited special trays of food from being taken
into the lock-up unit in order to keep contraband out of the unit. A security director
at the prison testified that health regulations prevented staff from thoroughly
searching the food trays to ensure that they were not being used to deliver contraband.

                                          -7-
The concern about contraband is particularly acute with respect to banquet food for
the "celebration of life" because CONS members have previously sent contraband
into the lock-up unit through a variety of illicit methods. We have recognized
institutional security as "the most compelling governmental interest in a prison
setting." Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996). In the present case,
there is a rational connection between the ban on permitting food trays from the
CONS banquet to be taken to CONS members in lock-up and the governmental
interest in maintaining prison security by adopting measures designed to keep
contraband items out of the lock-up unit.

       Similarly, the other three Turner factors support the finding that the ban was
reasonably related to the legitimate penological interest of preserving institutional
security. First, although the District Court found that denying trays of banquet food
to CONS members in lock-up "effectively denies them any opportunity to participate
in the Celebration of Life feast," the Court framed the issue too narrowly. Thus, its
finding misses the point. The critical question for Turner purposes is whether the
prison officials' actions deny prisoners their free-exercise rights without leaving open
sufficient alternative avenues for religious exercise. See, e.g., Iron Eyes, 907 F.2d at
815 (noting that Turner balance favors prison officials when regulation does not
preclude inmates from practicing at least some of the tenets of their religion). There
is nothing in the record showing that CONS mandates any particular menu for the
"celebration of life" feast, so lock-up inmates apparently can commemorate the event
with their ordinary prison meals. Furthermore, members in lock-up continue to be
able to practice other CONS beliefs despite not being able to partake of the banquet
food.

       Turning to another Turner factor, permitting special trays of food to be taken
to lock-up burdens prison resources by increasing the demands on staff time because
of the necessity of searching such trays for contraband. Finally, there do not exist
ready alternatives to the challenged ban. Thorough searches of the banquet food

                                          -8-
would not only burden prison staff but also might run afoul of health regulations.
Additionally, there is the inherent difficulty of searching trays of food thoroughly for
small items of contraband hidden in the food itself. Moreover, banquet foods may by
their very nature contain contraband items such as bones, which are banned from the
lock-up unit because of the danger they may be fashioned into weapons.



       Under our deferential review of prison administrators' actions, all of the Turner
factors favor the conclusion that the ban on delivering food trays from the
"celebration of life" banquet to CONS members in lock-up is reasonably related to
legitimate penological interests, and thus there is no impermissible infringement on
the free-exercise rights of any CONS member. The denial of "celebration of life"
food trays to CONS adherents in lock-up therefore does not violate the Remmers
injunction.

                                          II.

       We deal next with plaintiffs' challenge to the District Court's decision to allow
certain evidence, including depositions from confidential prison informants, to be
received into evidence under seal and pursuant to a protective order that barred
disclosure of the substance of the testimony or the deponents' identities to plaintiffs
and the public. We are satisfied the court did not abuse its discretion in this regard.
Any right of access to records from civil proceedings, if it exists (a question we never
have decided), is not absolute. Webster Groves Sch. Dist. v. Pulitzer Publ'g Co., 898
F.2d 1371, 1376 (8th Cir. 1990); see also In re Search Warrant for Secretarial Area
Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988). A compelling
governmental interest permits a court to take evidence under seal as long as the court
makes specific findings regarding the necessity of such a step. Gunn, 855 F.2d at
574. Here, the District Court found that the preservation of institutional security and
the protection of confidential informants from acts of retaliation for giving evidence

                                          -9-
were compelling interests necessitating the decision to issue a protective order and
seal portions of the record. Cf. Brown v. Kuhlmann, 142 F.3d 529, 537–38 (2d Cir.
1998) (recognizing preservation of undercover officer's safety as a compelling
interest sufficient to permit closure of courtroom during officer's testimony). We note
that only a minor portion of the evidence has been sealed as a result of the challenged
ruling. Furthermore, this evidence was sealed only after it was determined that
redaction would be insufficient to protect prison security and informant safety.
Accordingly, we sustain the challenged ruling. Cf. Rodriguez v. Schneider, No.
00-0307, 2003 U.S. App. LEXIS 2458 (2d Cir. Feb. 11, 2003) (prison inmate not
entitled to information regarding confidential informants in order to buttress a
retaliation claim under § 1983).

                                          III.

       Finally, we turn to defendants' claim that the District Court's dismissal of their
request for declaratory relief should be reversed. Specifically, the defendants'
counterclaim asked the court for a declaration that would allow prison officials to bar
all plaintiffs from participating in CONS services, study groups, lay ministry, and
banquets. We find no abuse of discretion in the District Court's dismissal of the
requested declaration. First, such a declaration would likely fail under Turner
because of its breadth; it would leave inmates with few avenues for the free exercise
of the CONS religion. Cf. Ward v. Walsh, 1 F.3d 873, 878 (9th Cir. 1993) (noting
that leaving an inmate with the ability to pray privately and no other means of
exercising his beliefs probably would not be sufficient under Turner to constitute
adequate alternative methods of exercising the right to religion), cert. denied, 510
U.S. 1192 (1994). Second, and alone dispositive of the counterclaim, we believe that
such a broad declaration cannot issue so long as our Court's decision in Remmers,
which holds that CONS is a religion entitled to protection under the First
Amendment, continues to be the law of our Circuit. Prison officials may not bypass
Remmers by asking for this form of declaratory relief. The proper procedural

                                          -10-
mechanism for attacking Remmers is to bring a motion to dissolve the injunction
entered in that case. See Fed. R. Civ. P. 60(b)(5). This Court specifically approved
that portion of the district court's decision in Remmers that left the finding that CONS
is a religion protected under the First Amendment subject to later challenge by ISP
officials. Remmers, 494 F.2d at 1278 n.1 ("As the trial court noted, should it
subsequently appear that [CONS] is a hoax and front . . . that eventually can be dealt
with by both the prison administration and the court.").

       We note that ISP officials have previously attempted to reopen the issue of
whether CONS is a religion entitled to First Amendment protection, but these
attempts were rejected by the district court, which determined that ISP officials had
not presented sufficient evidence that CONS was a "hoax and front" at ISP. See
Loney v. Scurr, 474 F. Supp. 1186 (S.D. Iowa 1979); Remmers v. Brewer, 396
F. Supp. 145 (S.D. Iowa 1975), aff'd, 529 F.2d 656 (8th Cir. 1976). Defendant prison
officials now appear to have gathered substantial evidence that CONS functions not
as a religious organization but as a racist prison gang within ISP. Such evidence
obviously would be highly relevant to a determination regarding the continued
validity of the Remmers decision.6




      6
        ISP officials have designated CONS as a "security threat group" within the
prison. (Appellants' App. at 119, 255). Such a group is defined to be "any ongoing
organization, group, or association that threatens or coerces or harasses others and/or
participates in or encourages illegal activity." (Id.) We note that the Third Circuit
has recently upheld the authority of prison administrators to designate purportedly
religious organizations as security threat groups and limit their activities within
prison. Fraise v. Terhune, 283 F.3d 506, 509 (3d Cir. 2002); see also In re Long
Term Admin. Segregation of Inmates Designated as Five Percenters (Mickle v.
Moore), 174 F.3d 464, 466 (4th Cir.), cert. denied, 528 U.S. 874 (1999).

                                         -11-
                                          IV.

       In sum, we reverse the District Court's order requiring prison officials to permit
food trays from the "celebration of life" banquet to be taken to CONS members in
lock-up. We affirm the District Court's denial of defendants' counterclaim for
declaratory relief and the District Court's decision to partially seal the record and to
issue a protective order.
                        ______________________________




                                          -12-
