Ya’ll know about the Five Percenters. Their ranks include such prominent voices as Rakim (Allah), Big Daddy Kane, and of course of course, the Wu. One could start a blog entirely devoted to tracking references to the Nation of Gods and Earths, and without even consulting Dr. Google, I can confidentally say that that blog exists. (If you’d rather read words than auditorily receive the Word, there are books on the topic.)
Hiphop tells us that the Nation of Gods has a God (the original Blackman, Clarence13X, Ghostface, and you):
- Wu Tang, 7th Chamber
That it has religious texts:
And, um, a flag:
(see video, @ 1:34)
[For a long discussion of the basic tenets, practices, and language of the NGE, according to the testimony of several Five Percenter prison inmates, you might consider taking a look at Self-Allah v. Annucci (W.D.N.Y. 1999). Or you might consult wikipedia, which the federal district court in Talbert v. Mullins cited to for its definition.]
Nonetheless, it’s not clear that legally speaking, at least, the Five Percenter way is considered a religion, for freedom of religious exercise purposes. 
In William Henry Harrison AKA God Kundalini Isa Allah v. Watts (E.D. Va. 2009), for example, the court held that the Nation of Gods and Earths does not represent a religion, but a “culture and way of life.” Holley v. Johnson (W.D. Va. 2009) documents a Five Percenter inmate’s appeal to be placed on a religious diet due to his religious beliefs. His application was denied with the explanation that the “God of Earth is not a religion.” Similarly, the court in Hudson v. Jabe (E.D.Va. 2008) stated that it was “unclear” whether NGE “is a group or organization that is religious in nature,” despite the plaintiff’s identification of the group as a “well recognized Islamic based community.”
Part of the conflict is that law enforcement and prison officials have designated the NGE as a gang. See Fowlkes v. Rodriguez (E.D.N.Y. 2008) (noting that NGE was “characterized as a religious group by the plaintiff, but apparently viewed as a gang by law enforcement”). As a result, a variety of prison systems have instituted “zero tolerance” policies banning practices related to NGE or even possession of Five Percenter Materials. Policies instituted agaisnt Five Percenters include:
- prohibition of Five Percenter materials/literature and correspondence; confiscation of them as “contraband” see, e.g. Cartwright v. Meade (W.D. Va. 2008), Johnson v. Stewart (W.D.Mich. 2008) (confiscating “The Breakdown to The Universal Flag of The Nation of Gods and Earths” and an African Studies packet)
- upon discovery of Five Percenter affiliation, designation as a “gang member” and placement in high security custody, Cabbagestalk v. Ozmint (D.S.C. 2007); Filiut v. Applegate (E.D.Mich.2006), or seg/solitary Talbert v. Jabe (W.D.Va. 2007)
- policy of making inmates sign “renouncement” affidavits stating that they no longer believe in NGE in order to be removed from restricted housing. Cromer v. Chaney (W.D.Mich. 2009)
- denied a vegetarian diet or the “Common Fare” upon request, because such meals are only given for “religious” purposes. Cromer v. Chaney (W.D.Mich. 2009)
- punishment for “speaking in code” when using the Supreme Alphabet; 5% lingo. See Harrison v. Lindsay (M.D.Pa. 2008) (plaintiff argued that his good time should be restored and he should not have been disciplined, stating: “I was not speaking in code. That is the language of my people. I am a Nation of Gods and Earth, the five (5%) percenter.”
As a result of the insistence of prison officials that NGE is a violent gang, the vast majority of courts have held that there is no free religious exercise right being infringed either under the First Amendment or statutes like RLUIPA and RFRA. The banning of Five Percenter materials, language, and affiliation is largely found to be “reasonably related to legitimate penological interests.” See, e.g., Fraise v. Terhune (3d Cir.2002) (upholding a ban on Five Percenter newspapers where inmates could possess, study, and discuss the Bible and the Koran); Brown v. D.O.C. PA (3d Cir.2008) (same, granting summary judgment for defendants under First Amendment and RLUIPA); Harbin-Bey v. Rutter (6th Cir.2005) (confiscation of inmate’s Five Percenter-related mail did not violate inmate plaintiff’s constitutional rights); Johnson v. Stewart (W.D.Mich. March 26, 2008) (confiscation of Five Percenter literature did not violate First Amendment); Talbert v. Jabe (W.D .Va. November 8, 2007) (confiscation of Five Percenters-related mail did not violate First Amendment or RLUIPA); Bells v. Ozmint (D. S.C. June 6, 2007) (confiscation of Five Percenters-related material did not violate First Amendment or RLUIPA); Cooper v. Starling (E.D.N.C. January 8, 2003) (confiscation of 5%er medallion not violative of plaintiff’s constitutional rights).
Notably, this view of adherents to religions um. . . outside of the mainstream . . . is kind of restricted to the NGE. Compare Fraise v. Terhune (3d Cir.2002) (upholding prohibition of The 120 Degrees, Supreme Mathematics, and Supreme Alphabet – not a violation of First Amendment) with Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003) (denying Nation of Islam adherents the writings of Elijah Muhammad and the writings of Farrakhan was a violation of the First Amendment.)
So what are they? Gang or religion? I’ll present the best case for both from the legal literature:
The Five Percent Nation claims that it does not promote or advocate violence, but evidence links the group with numerous incidents of prison violence. Indeed . . . many in the law enforcement community consider the Five Percent Nation to be “one of the greatest threats to the social fabric” of the prisons. In August 1990, a Five Percenter was a member of a small group of inmates who repeatedly stabbed a prison officer and severely beat other officers. In May 1993, an investigation revealed that a Five Percenter sent an anonymous letter threatening the lives of prison staff at East Jersey State Prison.In December 1993, more than 30 inmates at Northern State Prison participated in a group demonstration in the gymnasium during afternoon recess. See id. A subsequent investigation revealed that the group was planning to assault prison staff because prison officials refused to recognize the Five Percent Nation as a religion. Information was also received that the Five Percenters were planning to “take a cop” in the afternoon. In March 1995, two Five Percenters in the Southern State Correctional Facility were involved in an altercation inside a housing unit. See id. at 342. On a day in November 1996, 24 inmates in a youth correctional facility who were affiliated with the Five Percent Nation or rival Hispanic gangs were involved in three separate incidents. In July 1997, Five Percenters at Middlesex County Jail participated in a hunger strike. Officers were required to use smoke and concussion grenades to enter two barricaded housing units.
- Fraise v. Terhune (3d Cir.2002)
Maurice Samuels is currently an inmate at the Sullivan Correctional Facility. Since being incarcerated, Samuels has taken a keen interest in religion. He identifies himself as a member of the Five Percent Nation of Gods and Earths. While confined at Sing Sing, he received a degree of Master of Professional Studies in Prison Ministry through the New York Theological Seminary (“NYTS”). Upon completion of his studies with the NYTS, Samuels was transferred to the Green Haven Correctional Facility. At Green Haven, Samuels was assigned a clerk’s position in therapeutic “Reality and Pain Program.” He subsequently redesigned the program, creating the “Reality and Pain Therapeutic Counseling Program.” During this period he also served as a volunteer inmate instructor in the Black Studies program, and was later assigned as a clerk in Green Haven’s Senior Counselor’s Office, where he helped create a program for sex offenders. The website of the University of Chicago’s Divinity School provides a good summary of the beliefs of the adherents of the Five Percent Nation of Gods and Earths, commonly known as the “Five Percenters.”See Jonathan Moore, The Five Percenters: Racist Prison Gang or Persecuted Religion?, SIGHTINGS, May 21, 1999. The name of the group stems from its belief that only five percent of people are aware of and teach the truth. The term “Gods” refers to black male members; “Earths” refer to black female members. The group was founded by Clarence 13X, who left the Nation of Islam in 1964. According to Moore, “[m]any of the theological accoutrements of Black Muslim belief remain: many read the Qur’an and Elijah Muhammad’s writings (especially his “Message to the Black Man”), and they hold to the exclusive divinity of black men.” Id. (The Moore article, not part of the record, is provided for background purposes only). Samuels has included two pages outlining the differences between the Nation of Gods and Earths and similar black Muslim groups-the Nation of Islam and the Temple of Islam.
- Samuels v. Selsky (S.D.N.Y.,2002)
My inclination is to say: why can’t it be both? It’s not like any other religious group doesn’t have more unpalatable elements along with more sympathetic figures. Framed legally, why does it matter? Religious rights in prisons are restricted enough, and there isn’t anything particularly burdensome about assessing case-by-case a religious practice to see if it would create a security risk. Certainly, I don’t see any legitimate penological interest in denying a vegetarian meal or the supreme mathematics, even if the conservative side of me understands why using the supreme alphabet in a monitored telephone call might run against security interests.
I’ll end by saying that I was only really able to find one case squarely acknowledging the Nation of Gods and Earths as a religion, Marria v. Broaddus (SDNY 2002). Notably, while most of the cases straight dismissing the idea that Five Percenters might have religious beliefs come from Michigan, Virginia, and Pennsylvania, this case (which includes a penological expert’s report arguing Supremes in prison would not hurt security along with the application of what I consider the correct legal standard) was decided in the Southern District of New York. Shaolin! Stand up!
