A three-judge panel of the Ninth Circuit has acknowledged, apriori, that Pagan inmates complaining about the lack of a paid chaplain might have two valid legal claims, and remanded the case to a lower court for consideration of such claims.

Some background: CDCR employs a five-faith policy, which acknowledges, for purposes of religious accommodation, Catholicism, Protestant Christianity, Judaism, Islam, and Native American spirituality. For years, volunteer Wiccan prison chaplain Patrick McCollum waged a legal struggle to obtain ackowledgment, and lost due to lack of standing: The right to a chaplain belongs to the inmates, not the chaplain.

A recent survey of religion in prison has revealed that Paganism, or Earth-based spirituality, is one of the fastest growing faiths in correctional institutions, and according to McCollum, the survey is tainted by underreporting on the part of inmates that were concerned about the repercussions.

In Hartmann and Hill v. CDCR, decided a few days ago, inmates argued that the lack of an official chaplain position also leads to other forms of religious discrimination and lack of accommodations. Their main contention is that the “five-faith policy” is not based on any neutral considerations, and that in Chowchilla, where the plaintiffs are incarcerated, there are more Pagan inmates than members of some of the approved five faiths.

In reversing the district court’s dismissal for failure to state a claim, the Ninth Circuit court was careful to state that the First Amendment does not require CDCR to provide all faiths with a chaplain. Nor did the Court find an equal protection violation. However, the court did find that the inmates’ claim that CDCR violated the Establishment Clause is valid; that is, that the existing arrangement potentially unreasonably burdens the practice of religion on the basis of preferential treatment. The plaintiffs also have a valid claim based on the California Constitution. In remanding the case to the lower court, the Ninth Circuit court instructed to view the Establishment Clause argument through the lens of facts – conditions of employment for chaplains, number of inmates in need of religious services, etc.

For excellent, informed commentary on the decision, including from Patrick McCollum himself, see Jason Pitzl-Waters’ blog The Wild Hunt. Or, for a dosage of ignorance and bigotry, see Debra Saunders’ poor excuse for a column on the Chron.

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