Is The First Amendment for Monotheists Only?

Jason Pitzl-Waters —  January 29, 2010 — 80 Comments

A case coming before the 9th Circuit Court of Appeals could end up having major legal ramifications for all religious minorities in the United States. Wiccan chaplain Patrick McCollum has been fighting for years to overturn the State of California’s “five faiths policy”, which limits the hiring of paid chaplains to Protestant, Catholic, Jewish, Muslim, and Native American adherents. While McCollum has suffered setbacks in his quest, with a California federal district court ruling in early 2009 that he had no standing to bring his suit, he recently gained support on appeal from several civil and religious rights groups who argue that his case should be heard.

“McCollum’s central claim strikes at the heart of the rights and freedoms that the Establishment Clause, the Equal Protection Clause, and Title VII were designed to guarantee. A state policy that classifies on the basis of religion (or any other protected ground) epitomizes disparate treatment that is properly subject to challenge by a member of the excluded group.” – From an Amicus Brief submitted by Americans United For Separation of Church and State, The Anti-Defamation League, The American Jewish Committee, The Interfaith Alliance, and The Hindu American Foundation

While decisions made so far have focused only on whether McCollum has standing as a taxpayer or non-inmate to bring his suit, a new Amicus Curiae filed by the National Legal Foundation, on behalf of a conservative activist organization called WallBuilders, argues that McCollum has no standing because modern Pagans aren’t guaranteed the same Constitutional rights and protections as Christian or monotheist citizens.

“The true historic meaning of “religion” excludes paganism and witchcraft, and thus, does not compel a conclusion that McCollum has state taxpayer standing … paganism and witchcraft were never intended to receive the protections of the Religion Clauses. Thus, in the present case there can be no violation of those clauses … Should this Court conclude that McCollum has taxpayer standing … this Court should at least acknowledge that its conclusion is compelled by Supreme Court precedent, not by history or the intent of the Framers.”

These statements, while certainly not representative of modern-day understandings of the Religion Clauses, have been seemingly welcomed by the California Dept. of Corrections and Rehabilitation (CDCR), as the amicus gives no indication that they are missing consent from the defense.

“Wallbuilders files this Brief pursuant to consent from Counsel for Plaintiffs-Appellants and pursuant to the accompanying Motion For Leave to File a Brief Amicus Curiae.”

Indeed, instead of rejecting such a blatantly discriminatory  amicus, according to McCollum, in a statement sent to The Wild Hunt, lawyers for the CDCR have argued from the beginning of this long legal saga that there are two “tiers” of religion in America.

“I originally sued on behalf of myself and Pagan inmates as their chaplain, but about a year later several inmates joined the lawsuit.  Together, we claimed that it is unconstitutional for the state to deny the Pagan inmates their religious rights, their religious materials, and their religious services.

During the course of the case, the CDCR, other related defendants, and the Assistant Attorneys General who represents them have argued before the court that Pagans are not deserving of equal civil rights as are provided adherents of the preferred faiths.  In one of their first arguments to the court, the defendants said that certain “traditional” faiths are first tier faiths and that those faiths were meant to have equal rights and  protections under the United States Constitution, but that all of the other faiths were second tier faiths, and were not meant to have the same equal rights and protections under the United States Constitution as the first tier faiths.”

The bold claim in the WallBuilders’ amicus that modern Pagans have no Constitutional claim to protection under the Religion Clauses is the plain-speaking truth behind the more nuanced claims of faith “tiers” or “traditional” faiths made by the CDCR’s legal counsel. The brief reveals, in the words of McCollum, the “real culprits” behind this long struggle.

“I was told by a wise person early on in my legal battle with the CDCR and the other defendants that in every civil rights case the true nature of those opposing the civil rights of the injured parties would eventually rear their ugly heads, and that it would then become crystal clear who was actually calling the shots on their side and what their objective was.  Yesterday with the filing of this most recent brief, I think I can safely say that the real culprits have clearly shown themselves in full form — and that their goal is to tear down the religious freedoms of all faiths, except a privileged few,  to create a theocracy of privilege similar to the one that spurred the discriminations and abuses on account of religion, which prompted the American founders to form a new nation with liberty and justice for all–a new nation free from such coercion.

If the 9th Circuit Court of Appeals should decide that this line of argument has any validity, it could send a shock-wave through the legal community, casting doubt on any number of legal cases that now ensure the equal protection of religious minorities. This case, fought for so long, and simply to keep a Wiccan from possibly getting a paid chaplaincy position, has already created a “two-tier” religious system for incarcerated Pagans in California. Guaranteeing that some faiths are more equal than others.

In the face of these recent developments, McCollum calls for modern Pagans and their allies to speak up against this injustice.

I think it is now time for our community, and also for people of good will in other faiths and religious communities of conscience to respond to this outrageous position in support of continued discrimination by a governmental agency.  The safety and security of every minority faith community in the country is in danger when arguments like these are thought to be credible by anyone.

We all need to write to Jerry Brown, the California Attorney General, Governor Arnold Schwarzenegger, and Mathew L. Cate, the Secretary of the CDCR and let them all know our outrage.  And if you are a Pagan or Heathen, then we must also demand equal treatment, equal accommodations, equal access to our religious items for institutionalized persons, including prison inmates, and equal access to paid Pagan chaplains.”

It seems increasingly clear that arguments in this case over “taxpayer standing” has been something of a red herring, obfuscating the true history of this legal odyssey by McCollum and the Pagan inmates he is fighting for. This is about civil rights and our religious freedoms, not just a chaplaincy job in a prison. One can only echo McCollum’s sentiments, that the time to speak out is now. The time to stand behind and support McCollum is now.

You can be sure that I will continue to follow and report on this case, and that I will make more information and documents regarding this appeals process available as I have them.

Relevant Documents:

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Jason Pitzl-Waters


  • KhalilaRedBird

    Right on! Thank you, Patrick! I'm glad it's you taking this on.

  • Tea

    Very well said Robin. I agree completely.

  • TeNosce

    Wall builders indeed.

    • McCollum Watcher

      Yes Cara, they will care because this case is about federal law. It has national ramifications.

      • Lokisgodhi

        Only if they know about that. My guess is they don't and it will be an uphill battle to teach it them.

        • Cat C-B

          So get to it, then! Whaddaya waiting for?

          • Snoozepossum

            Where's the money for the tool equipage going to come from?

          • Lokisgodhi

            Good question. Snoozepossum, you've demonstrated that you're a tool on so many occasions. So where does the money to equip you come from? 😉

  • KhalilaRedBird
    • sinnerjee

      Seems to me that it's a violation of the separation of church and state for the government to PAY any chaplains to provide any kind of religious services.

    • Michaela Johnson Iler

      Sorry, that should be "Isn't just" about hiring a chaplain.

    • Sheherazahde

      "WallBuilders" sounds like classic DoubleSpeak to me.
      Doesn't anyone read 1984 anymore?

      • Lokisgodhi

        We're lucky if anyone here in America reads *anything* anymore.

      • Erynn

        Definitely a double-plus ungood moment.

    • Robin Artisson

      You're largely correct- but the state of knowledge is now precisely the problem. We have to change that.

  • Camille Klein

    Godwin +1

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  • Daniel Vis

    I wrote to Jerry Brown, the California Attorney General, Governor Arnold Schwarzenegger, and Mathew L. Cate, the Secretary of the CDCR urging them to all work together to correct this situation. I’m hoping they welcome enlightenment & stop this discrimination. I’m hoping others have done this as well.

    • tenosce

      Hi Sharon,

      I came to your show in Portland. Good to see you online. :)

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  • Crystal7431

    Did they give any reasons or explanations?

  • Crystal7431

    Does that mean then that he doesn't have to pay taxes? Lol!

    • Ananta Androscoggin

      Or, as the Father Mulcahy character on MASH once quipped about doing a service for soldiers of a different sect, "I'm a piano player, I know how to transpose."

      • Ananta Androscoggin

        Rather like the old saw that says "Why is it that every country which names itself 'The _People's_ Republic of …" is a dictatorship?"

        • Ananta Androscoggin

          Which would bring one to ask the qustion:

          "Is this the United States of America, or is this the kingdom of Judea?"

          • Lokisgodhi

            What!? You want to pull up a chair to the table so the anti Semetic white supremacists can join into this fight as well?

          • Ananta Androscoggin

            Perhaps I should have phrased that,

            "… or are these the kingdoms of Judea and Israel competing for Yahweh's undivided love?"

          • Erynn

            Better yet, is it the Judean People's Front or the People's Front of Judea?

        • KarenAScofield

          Good point!

          • Snoozepossum

            Write letters, folks. Silence is tacit consent.

          • GreenWaySkull

            Haha. I like it.

          • Snoozepossum


            All these people deserving cookies; I'm gonna have to get a bigger oven . . . .

        • Lokisgodhi

          Well, that depends on your point of view as what constitutes a dictatorship.

          • Ananta Androscoggin

            Totalitarian State perhaps might be a better term for them.

    • Ananta Androscoggin

      I suppose the SCOTUS we have now would be quite happy to re-affirm the infamous Dred Scott decision.

      • Cara

        This kind of hyperbole doesn't help. It just encourages serious people to dismiss what you are saying.

    • KarenAScofield

      Ha ha!

    • Ananta Androscoggin

      Yeah! In fact, isn't a whole bunch of fraudulent talk about "taxation without representation" a big deal with the far right currently?

  • Lokisgodhi

    I'd like to blame on their current governor, Der Gröpenführer, but then they spawned Ronald Reagan and Richard Nixon too.

  • Lokisgodhi

    Are you talking about Ronald Reagan or Arnold Schwarzenegger?

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  • @crystalos

    sadly the burning times dont seem to be as far behind us as we though

  • Sarenth

    Secretary Matthew Cate
    1515 S Street
    Sacramento, CA 95814

  • Elizabeth McNally

    This issue affects all minority Faiths. Please take action if you can.

  • Donna

    Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another.

  • Donna

    This website should help prove that this country was not founded on Christianity. :)


    • Crystal7431

      There are some most excellent points made on this site. Thanks for the link.

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  • Al Jigen Billings

    I didn't realize Christianity was started in the 1940's like Wicca…

    • Snoozepossum

      Refresh yer spreadsheet, you're missing a few rows.

  • Snoozepossum

    Pope Schmope – how can he win when you have six people who agree on something? ;0)


    • Lokisgodhi

      I suggest you look up the definition of the term, Scalawag. I think it applies to Cara as a metaphor.
      I could also go with Fifth Columnist as well..

      • Lokisgodhi

        You never know. Sometimes I suspect that 'burning times' for far too many modern Pagans has to do with smoking too much reefer to remember things clearly.

      • Cara Schulz

        Are those Black Helicopters I hear?

  • Erynn

    But just think of the pirate chic potential!

    • Lokisgodhi

      I'm confident that he, like everyone else, knows you're a tool.

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  • BryonMorrigan

    "…on behalf of a conservative activist organization…"

    Quoting for emphasis…

  • KarenAScofield


    Religion =/= Monotheistic Orthodoxies Only

  • Sarenth

    I don't care, I sent them an email anyhow. If their precedent is going to affect court cases in my state and nation, I definitely want to be heard.