Patrick McCollum Responds to 9th Circuit “Five Faiths” Ruling

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Yesterday the 9th Circuit Court of Appeals issued a ruling in the case of Hartmann v. California Department of Corrections and Rehabilitation which clears the way for a direct challenge to California’s discriminatory “five faiths” policy. This policy limits the hiring of paid chaplains to Protestant, Catholic, Jewish, Muslim, and Native American adherents. Judges stressed that while the prison did not intentionally limit the religious rights of Shawna Hartmann, Caren Hill, and other Wiccan inmates, the neutrality of California’s chaplaincy policy could be challenged. 

Central California Women's Facility (CCWF)

Central California Women’s Facility (CCWF)

“Although the state is not required to “provide inmates with the chaplain of their choice,” it must use neutral standards when deciding how to spend money on prisoners’ religious needs, said the Ninth U.S. Circuit Court of Appeals in San Francisco. California prisons have long employed chaplains for Catholics, Protestants, Muslims and Jews. After American Indian inmates sued the state in 1985, the prison system began providing spiritual advisers for them […] the court said the women may be able to prove that the state Department of Corrections and Rehabilitation is violating the constitutional ban on a governmental “establishment of religion,” which prohibits a state from endorsing one faith over another. That ban requires the prisons to use “neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources,” the court said in a 3-0 ruling.”

This ruling is part of a larger effort by Pagan chaplain and activist Patrick McCollum to nurture cases that would challenge the policy after the 9th Circuit Court upheld a lower court decision stating he doesn’t have standing. McCollum told The Wild Hunt back in November of 2012 that “if the court rules that those inmates who are on that case do have a right to a chaplain then I can walk right back into the court and forget the ruling made by the 9th Circuit or anybody else.” Now, with the way cleared for a direct challenge to California’s policy, McCollum has released the following statement.

Patrick McCollum with California State Senator Mark DeSaulnier and aide (08/25/12)

Patrick McCollum with California State Senator Mark DeSaulnier and aide (08/25/12)

Today I bring good news after a long fight. And while the fight is not over, the victory I have the privilege of sharing is significant and particularly meaningful to me.

This morning, the Federal Ninth Circuit Court of Appeals ruled that if the allegations presented in the Complaint filed in the case Hartman v California Department of Corrections are true (which they are) that the California Department of Corrections violated the Establishment Clause of the Constitution by not having hired a paid Wiccan Chaplain at the California Correctional Women’s Facility in Chowchilla, California.

As many of you know, I have led the fight in this quest for nearly twenty years to establish equality for Pagan prisoners nationwide and an equal right to our own paid chaplains under the law. There have been many difficult and challenging twists and turns in this battle to expose the truth in this matter, and many personal hits on the part of myself and my family to sustain it. And while I say little about the sacrifices made to bring justice, just the commitment and the loss of irretrievable years of one’s life in litigation taking on the system is in itself wearing.

It has not been easy!

I have always known that the only way to change discrimination and misinformation against our community, is to take it on openly and to refuse to accept anything other than success.

 As with all court battles, there are still many issues to work out and lots of hard work still ahead, but the tide has turned, and it has turned in our favor, thank the Goddess!

 I’d like to thank our attorneys, Jones Day of San Francisco, who believe in this cause and have never given up, and I’d also like to thank Dr. Barbara McGraw who has argued our cause diligently from the very beginning. Without their combined help, none of this would have ever happened.

I’d like to also thank the inmates, Hartman & Hill, and all of the other incarcerated Wiccan sisters and brothers who have continued to have the courage to stand up against a flawed system in which they too have sustained continuous adversity and hardship for merely standing up for their faith. Today’s ruling is a testament to their commitment, and and to the sincerity of their beliefs.

Let us all remember, that united we can transform ignorance and hatred in the world into understanding and beauty, and that it only takes one voice to start a chorus. Let us each rise up and be that voice!

In addition, the Patrick McCollum Foundation, an organization formed to support Patrick McCollum’s work as an activist and interfaith ambassador, released the following statement yesterday at the publication of the ruling.

This morning, the 9th circuit published its opinion on a prison religion case involving Wiccan inmates: Hartmann and Hill v. the CDCR, et al.. Procedurally, the case is only at the complaint stage, but the court’s ruling is very significant because the court ruled that the facts alleged in the case are sufficient to state a First Amendment Establishment Clause claim under the U.S. and California constitutions on behalf of Wiccan inmates.

The complaint alleged that the five faiths policy, which permits the hiring of chaplains in only five faiths (Catholic, Protestant, Muslim, Jewish, and Native American), “favor[s] some religions over others on a preferential basis” and that the CDCR defendants do not apply any “neutral, equitable, and unbiased criteria” to determine chaplain hiring needs or other religious accommodations for inmates of various faiths. The court concluded that if, during the course of the case, the Establishment Clause allegations are proven to be factually correct, the CDCR would be in violation of the Establishment Clause for its five faiths policy chaplain hiring policy. (The court affirmed the dismissal of the other claims largely on procedural grounds: First Amendment Free Exercise, Equal Protection, and RLUIPA.)

David Kiernan of the Jones Day law firm, which handled Patrick McCollum’s case, argued the case before the 9th circuit pro bono. Barbara A. McGraw also served as a pro bono attorney on the case.

This is a major victory for those wanting to change California’s chaplaincy policy, and create better access and resources for inmates. The struggles of religious minorities in American prisons, particularly Pagans, has been well-documented here at The Wild Hunt. Noted Pagan leaders like Starhawk have personally experienced the poor treatment and lack of respect our religions often receive from prison officials. Recent studies have shown that minority faiths can make up significant percentages of a prison population, and according to the women in this lawsuit, Wiccans outnumber Jews and Muslims at their facility, two faiths that are accorded funds for paid chaplains.

This ruling, in the end, isn’t about paying a Wiccan chaplain, or a Pagan chaplain, it’s about access. Volunteer chaplains, especially those outside the dominant Christian paradigm within our prison system, often face a number of hurdles. Ease of access is often decided arbitrarily, and with little knowledge of the faiths being serviced. While some Pagan chaplains are able to make headway, those are isolated instances, and on the whole there is “endemic” discrimination against Pagan prisoners. The Wild Hunt will be keeping track of this case, and will keep you posted as new developments occur.