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For Muslim, Native American, Jewish, Protestant and Catholic inmates in the California Department of Corrections and Rehabilitation system, practicing their faith with a spiritual leader is relatively easy. After all, the state prison and parole organization only employs full-time and part-time chaplains of those five religious groups.
Yet, for inmates who believe in religions outside of convention, such as Wicca, it’s much more difficult to pay spiritual tribute with a like-minded leader within the confines of that prison system. Instead, they are merely relegated to offering adulation with a volunteer chaplain or one of the paid staff chaplains that do not share their beliefs.
But, for Wiccan prisoners of the CDCR, this may change.
On February 19, the Ninth Circuit Court of Appeals overturned in part a lower district court’s dismissal of a 2010 claim against the CDCR alleging it infringes on Wiccan inmates’ First Amendment rights by not employing a full-time Wiccan chaplain and failing to apply neutral criteria in determining whether such paid positions are warranted to meet religious exercise needs. Particularly, the original lawsuit—brought by Central California Women’s Facility (CCWF) inmates Shawna Hartmann (since released) and Caren Hill—alleged the defendant violated their rights “under the First Amendment’s Free Exercise and Establishment Clauses, the Fourteenth Amendment’s Equal Protection Clause, the Religious Land Use and Institutionalized Persons Act (‘RLUIPA’), and the California State Constitution.”
According to the appeals court’s decision, the trial court was “wrong to dismiss” the lawsuit so soon after its filing without careful examination of the facts, and remanded the case for another review. The panel stated the plaintiffs’ “sufficiently pleaded” evidence supporting the Establishment Clause and California State Constitution claims:
The panel determined that accepting plaintiffs’ allegations as true, the prison administration failed to employ any neutral criteria in evaluating whether a growing membership in minority religions warranted a reallocation of resources used in accommodating inmates’ religious exercise needs.
The Ninth Circuit, however, affirmed the original decision to dismiss the Free Exercise Clause, Equal Protection, and the RLUIPA claims, stating:
…the first amended complaint did not contain sufficient facts to support a cognizable legal theory under the First Amendment’s Free Exercise Clause, stating that the Clause did not require prison administration to provide plaintiffs with more than that which they were currently receiving, such as the services of staff chaplains and a volunteer Wiccan chaplain. The panel also held that plaintiffs failed to support their equal protection claim with facts plausibly showing that the prison administration discriminatorily denied their requests for a paid full-time Wiccan chaplain. The panel further held that plaintiffs’ claim under the Religious Land Use and Institutionalized Persons Act failed sufficiently to allege a substantial burden on their religious exercise.
Constitutionally, the partial reversal isn’t a slam dunk. While the appeals court overturned the original decision on those two claims, it indicated it’s possible for the CDCR to prove a full-time chaplain isn’t warranted if there aren’t enough Wiccan worshipers or critical needs. Rather, the plaintiffs “must actually prove their allegations”—meaning:
For example, at a minimum, a court would have to ascertain whether paid staff chaplains work only at the CCWF or are required to travel to other prisons, jails, and correction facilities in the State. The allegations in Plaintiffs’ complaints suggest the former, but evidence presented during discovery may suggest that the latter is the case.
Another example of evidence relevant to an Establishment Clause violation would be a survey of inmate religious affiliation in the CCWF prison population and the broader CDCR prison population…If such a yearly survey was conducted and filed as a public document, the district court could take judicial notice thereof, or the parties could include such a survey in their papers. We recognize that this comes to us as a decision on the pleadings and that the defendants may have such proof, but it has not been made a part of the record.
In regards to the portion on the survey, a 2007 CDCR survey used in the original ruling indicates only 183 inmates identify as Wiccans, and 2,678 who identify as “other.” However, Hartmann and Hill asserted there are “more or just as many” practicing Wicca in CCWF as there are those who ascribe to the five religions represented—a claim echoed by American Correctional Chaplains Spokesman Gary Friedman in a Feb. 22 Post-Bulletin article.
It’s also reverberated by Wiccan Minister Patrick McCollum, who ticks the actual amount of CDCR Wiccan inmates up to nearly 2,000, according to the Post-Bulletin. For McCollum, a volunteer Wiccan chaplain in California prisons, the reason for the numerical dispute is because many incarcerated Wiccans were afraid to answer the survey for fear of retaliation.
That’s not so outrageous when you consider this 2007 NY Times article. Wiccans are living in secret, wrote the Times, because they don’t want to be misunderstood, ostracized or outcaste:
“I would love to be able to say ‘Accept us for who we are,’ but I can’t, mainly because of my kids,” said the suburban mother, who agreed to talk only on the condition of anonymity. “Children can be cruel, and their parents can be even more cruel, and I don’t want my kids picked on for the choice their mommy made.”
She worries that because most people know little about Wicca, they will assume she worships Satan. She fears that her family and friends will abandon her and that the community will ostracize her.
And that’s not so far-fetched, either. Just consider Fox News contributor Tucker Carlson, who, on a “Fox and Friends” Feb. 17 broadcast, said the following (he has since apologized):
“Any religion whose most sacred day is Halloween, I just can’t take seriously…I mean, call me a bigot…Every Wiccan I’ve ever known is either a compulsive deep Dungeons and Dragons player or is a middle-aged, twice-divorced older woman living in a rural area who works as a midwife.”
Carlson’s made his insensitive comments when speaking out against the University of Missouri’s inclusion of Wiccan and Pagan observances in its recently-released Guide to Religions: Major Holidays and Suggested Accommodations. And Debra Saunders’s op-ed in response to last month’s appeals court decision just compounds the intolerance. She labels herself a “skeptic of Wicca” but statements like:
It’s enough to make you wonder whether Samantha twitched her nose and cast a spell on the robed wonders.
How many Bathilda Bagshots are there in California prisons?
If I turn into a frog over the weekend, I take back this column. Until then, I’m just a chump who pays taxes so the 9th Circuit can pull rabbits out of hats.
…reveal more of an unwillingness to educate her on a minor religion, and an overall condescending arrogance about religions, than it does skepticism.
Still, while misconceptions about Wicca still prevail, this appeals court decision is just another step forward for Wiccans who have long sort federal recognition of their faith in the face of discrimination and exclusion. After all, it was only six years ago that U.S. Department of Veterans Affairs added the Wiccan pentacle to the list of 38 accepted religious emblems that can be engraved on veterans’ headstones and allowed in national cemeteries—only after it reached a settlement with Roberta Stewart, who filed a 2006 lawsuit after being denied a Wiccan pentacle imprint on her late husband, Sgt. Patrick D. Stewart’s grave. As of 2007, there were 1,800 Wiccans in the Air Force alone. Nationwide, 342,000 adults identified as Wiccan in 2008, according to the U.S. Census Bureau.
Let’s see if Wicca can add another victory.
For a quick guide to Wicca, click here.