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:

Jason Pitzl-Waters

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