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Are Pagans in California Prisons Entitled to Religious Freedom?
February 1, 2010 2:19 PM   Subscribe

From The Wild Hunt:
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.

An amicus brief has been filed by the Wall Builders, a conservative Christian group, arguing that:
“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.”
The Wall Builders' brief states that it is being filed with the consent of the California Department of Corrections & Rehabilitation. In a statement from McCollum, he says that lawyers for the CDCR have argued from the beginning of this long legal saga that there are two “tiers” of religion in America.
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.
Note: In 2007, the military approved the use of the pentacle on military headstones of dead pagan servicepersons. And more recently, the Air Force Academy set up a circle of standing stones for use by Wiccan/Pagan/etc cadets in their religious observances.
posted by Pirate-Bartender-Zombie-Monkey (43 comments total) 12 users marked this as a favorite

 
I... wha? Buh? Are you fucking kidding me? What the fuck part of "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" and "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" do they not understand? How is this even a case?
posted by Caduceus at 2:29 PM on February 1, 2010 [13 favorites]


which limits the hiring of paid chaplains to Protestant, Catholic, Jewish, Muslim, and Native American adherents.

I what parallel universe is this not an establishment of religion?
posted by Mental Wimp at 2:30 PM on February 1, 2010 [11 favorites]


That's it, I am now totally convinced that al Qaeda's attacks on 9/11/2001 were just a diversionary move. Their real act of terrorism was to put something in America's water supply that compels people to commit dick move after dick move against their fellow citizens.

"We can marry, but *you* can't. We can have our religion, but *you* can't." And they get away with it. Christ, a bunch of assholes we are.
posted by NoMich at 2:30 PM on February 1, 2010 [4 favorites]


Or what Cauceus said much more eloquently...
posted by Mental Wimp at 2:31 PM on February 1, 2010


...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.

This is absolutely how it is right now. It's wrong and has no basis in law, but it's how it is.
posted by anifinder at 2:33 PM on February 1, 2010


Although this case never should have made it even as far as it did, I really don't see the 9th circuit siding with a "religion means Christianity" interpretation of the 1st amendment.

Even ignoring the "pagan" argument, I can't see this flying with Hinduism, Shinto, or any other polytheistic religion - particularly since they already allow Native American (just as much of a polyglot as the much-maligned "pagan") as an accepted option.

Terrifying that we have idiots in the world even willing to entertain this, but really not worried about the court finding the "wrong" way.
posted by pla at 2:33 PM on February 1, 2010


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.

That is the most fucking ridiculous thing I've ever heard in my fucking life. Show me where "tier" shows up in the Constitution with respect to religion and I'll grant you your argument. But I'm fucking positive that the First Amendment just says religion, not "respecting an establishment of first tier religions, which are..." And that the 14th Amendment pretty thoroughly applies the Bill of Rights to individual states as well as Congress. This is fucking insane.

Or what Cauceus said much more eloquently...

Not really more eloquently, just with more invective.
posted by Caduceus at 2:38 PM on February 1, 2010


five faiths policy

How the fuck have I never heard of this and how the fuck does it still exist.
posted by shakespeherian at 2:39 PM on February 1, 2010 [4 favorites]


WallBuilders‟ President, David Barton, is a recognized authority in American history and the role of religion in public life. As a result of his expertise in these areas, he works as a consultant to national history textbook publishers. He has been appointed by the State Boards of Education in states such as California and Texas to help write the American history and government standards for students in those states.

Anybody else notice this tidbit from the Wallbuilder's brief? This is one of the guys we were talking about in this textbook thread.

Christ, what an asshole.
posted by dchrssyr at 2:43 PM on February 1, 2010 [4 favorites]


his issue is really standing. Otherwise, Cali's got no case. Problem is that it is the prisoner's whose rights are being trampled on. You'll need a pagan in prison to bring this one succesfully.
posted by Ironmouth at 2:46 PM on February 1, 2010


The Wall Builders' brief states that it is being filed with the consent of the California Department of Corrections & Rehabilitation

That doesn't mean what you think it does. Most courts require you to seek consent for the filing of the motion, even from the other party. Let's the judge know what is going on here. If I were the wiccan, i'd let these idiots file and base my case on their ridiculous assertions. The state will argue convenience. I'd argue that they're really pushing a christian agenda.
posted by Ironmouth at 2:49 PM on February 1, 2010 [2 favorites]


*reading this whilst eating a nice bowl of spaghetti*
posted by Danf at 2:51 PM on February 1, 2010 [1 favorite]


I just... Buwahhh.

As someone who spent a great deal of time in undergraduate and graduate school trying to answer the question "What is Religion anyway?" I just do not see how this argument is even cogent, let alone tenable.

I mean, if you want to make an argument that somehow, within America, "Protestant, Catholic, Jewish, Muslim, and Native American" religions are the only religions of standing within the law, you need to explain why you are lumping all the various "Jewish" sects and all the various "Muslim" sects but splitting "Protestant / Catholic". Just in monotheistic religions, there are some major issues. Does this not include Eastern Orthodox, Russian Orthodox, etc? They surely aren't Protestant or Catholic by any stretch of the imagination.

What about Hindu and Buddhist groups? What about Sikhism? What about Jainism? Shinto? Voodun? The various Shinshūkyō? Do you have any idea how many pagans there are in the US? Wiccans? Druids?

How on earth can you say this with a straight face, you nutters? What alternate reality does your head exist in? There's just nothing I can say to this but stand there with my jaw opening and closing like a fish.
posted by strixus at 2:53 PM on February 1, 2010 [6 favorites]


People, people. The court ruled that the would-be-Chaplain doesn't have standing to bring the suit. A plaintiff has to demonstrate to the court that it is sufficiently harmed by (and by definition, connected to) a defendant's action in order for the suit to even be heard.

The court determined that the would-be-Chaplain doesn't have standing as he is not directly and/or sufficiently harmed by the state's policies in re "certifying"(?) chaplains.

The court hasn't decided anything in the case, other than that the would-be-Chaplain doesn't have standing. It's not siding with or against anyone.

From the links in OP (haven't read anything else about this) it looks like the precedent is that only prisoners themselves can bring suit. Sorta makes sense, IMO.
posted by jckll at 2:55 PM on February 1, 2010


David Barton’s amicus brief is really dumb and claims that atheists are unsuited for public office.

The only pro-Wall Builders argument I can think of here is from a D&D standpoint. The chaplain resembles a Magic-User or Druid more than a Cleric.
posted by thelastenglishmajor at 2:57 PM on February 1, 2010 [6 favorites]


Well, duh. It says you can't establish "a religion". It doesn't say anything about "a small handful of religions".

I say we cut it down to two: Roman Catholicism and The Cult of Ba'al.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:58 PM on February 1, 2010 [3 favorites]


The Amicus brief is from an organization with a particular agenda, and I really doubt that the State of California is taking the position that Protestant, Catholic, Jewish, Muslim, and Native American are the true and awesome religions (even though "Catholic" is the only term on the list that refers to a specific faith) and all other religions suck. What seems far more likely is that members of those groups are in California prisons in sufficient numbers for it to make sense to hire paid chaplains to minister to them. I don't know, though, because there's nothing in the post about the actual policy or the reasons behind it.
posted by moxiedoll at 3:05 PM on February 1, 2010


Californiia's policy reminds me of one of the best Onion pieces ever, about the new streamlined bill of rights proposed by the Bush administration, which included reducing the first amendment to "freedom of Judeo-Christianity and non-combative speech."
posted by bearwife at 3:05 PM on February 1, 2010 [1 favorite]


I think this illustrates a problem with the concept of standing- it feels in this case and others (Michael Newdow being another example) of finding an excuse to not address an actual problem.
posted by Pope Guilty at 3:20 PM on February 1, 2010 [1 favorite]


To be fair, while I still think this is a disgusting violation of the First Amendment, what religions they're willing to hire chaplains for is the least of California Prison problems.
posted by Caduceus at 3:21 PM on February 1, 2010


I'll admit that I have not read the case, but the heading / summary do not seem to make sense to me.

This: "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."

=/=

"Are Pagans in California Prisons Entitled to Religious Freedom?" (at least to the extent this implies the answer that no, they are not).

The argument that pagans were never meant to receive the protection of the First Amendment is bunk, of course, but at the same time, at least as I read the summary, the jail officials are not denying pagan prisoners the right to practice their religion, are they? Or is the argument that failure to provide pagan chaplains to pagan inmates constitutes an abridgment of the inmates' First Amendment freedoms?
posted by Pontius Pilate at 3:25 PM on February 1, 2010


particularly since they already allow Native American (just as much of a polyglot as the much-maligned "pagan") as an accepted option.

I do abhor the idea of lumping all NA beliefs under a single umbrella term, as I don't necessarily think that the Hopi have the same approach to religious expression as the Apache, etc all across the 500 Nations. I wonder how this allowance plays out in real life, and how followers of various indigenous New World religions feel about the umbrella considering that it's somehow official policy.
posted by hippybear at 3:30 PM on February 1, 2010


Pontius Pilate, the ammendment is not about freedom of religion, it's about the non-establishment of an officially sanctioned religion. Or five.
posted by qvantamon at 3:36 PM on February 1, 2010


not only about freedom of religion
posted by qvantamon at 3:38 PM on February 1, 2010


qvantamon, while a lot of people do seem to ignore the Free Exercise Clause, it has not yet been removed from the text.
posted by The World Famous at 3:41 PM on February 1, 2010


Ok, then.
posted by The World Famous at 3:44 PM on February 1, 2010


I'm pretty sure the Supreme Court has not ruled whether state-supported religious officials in prisons constitutes a violation of the Establishment Clause. A very quick search does not seem to reveal any decisions on point in lower courts either - does anyone happen to have any citations?
posted by Pontius Pilate at 3:46 PM on February 1, 2010


Pontius, the Eighth Circuit address the problems of religious officiates in prisons in Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., 2007 U.S. App. LEXIS 27928 (8th Cir. 2007), concluding that a state-funded prison clergy did not violate the Establishment Clause as a general matter, but that the Clause was violated when funds were not distributed neutrally with respect to religion. At least the Second, Third, and Ninth Circuits have reached similar conclusions. Keep in mind that many courts have concluded that the Free Exercise clause imposes an affirmative obligation to provide prisoners access to clergy in order to practice their religions, subject to compelling state interests.
posted by monju_bosatsu at 4:06 PM on February 1, 2010


history or the intent of the Framers

The Treaty of Tripoli says, "the Government of the United States of America is not, in any sense, founded on the Christian religion." It was unanimously ratified by the Senate and signed by President John Adams, so I think their intent is pretty clear.
posted by kirkaracha at 4:06 PM on February 1, 2010 [3 favorites]


so I think their intent is pretty clear.

First, that wasn't the Framers, so there's that.

Second, as my Constitutional Law professor used to enjoy saying, whenever someone interpreting the law says something is "clear," it couldn't be less so.
posted by The World Famous at 4:17 PM on February 1, 2010


My only datapoint here is that I used to sort of be in the Church Of Satan (I never actually joined but I knew many of the people), and they always used to base their main claim to being a legitimate religion around the fact that they're recognized in the Army Chaplain's Handbook and the US Army has official guidelines for Satanic religious services. The Temple Of Set claims the same thing (and its leader is a retired high-ranking Army officer). Was this all BS? Was it true at one time and is no longer?
posted by DecemberBoy at 4:40 PM on February 1, 2010


Monju_bosatsu - just what I was looking for; appreciate it!
posted by Pontius Pilate at 4:43 PM on February 1, 2010


-the jail officials are not denying pagan prisoners the right to practice their religion, are they?

According to McCollum in his statements before the U. S. Commission on Civil Rights, religious discrimination against pagan prisoners is endemic in California (and elsewhere):
I’d like to start with a few true examples of discrimination to illustrate the severity of the problem:

A Wiccan inmate has cancer and the prison guards refuse to transport him to his chemotherapy treatments unless he removes his religious pentacle medallion which they have objections to. He chooses to forgo his chemotherapy and keep his pentacle.

A Wiccan inmate has been trying to go to Wiccan services for months, but the guard at her dorm refuses to give her a pass. The guard says it is for the good of the Wiccan inmate's soul.

Another dying Wiccan writes his volunteer chaplain that he needs to see him before he crosses over. The chaplain makes numerous attempts to reach prison staff to receive the necessary clearances, but no one responds. But worse, prison mailroom staff refuse to forward the chaplain's mail, so that the inmate knows why his chaplain isn't coming.

Over more than a decade, I’ve had the opportunity to interact nationally with both administrators and inmates on religious accommodation issues. While practices differ from state to state, I found discrimination against minority faiths everywhere. The reason for this is what I call the Dominant Religion Lens Factor.
Saying to a Pagan chaplain "No, you may not move the chairs into a circle to create a sacred space, the inmates must sit in rows and you must give your sermon [which Pagan Chaplains don't do] from the pulpit" may seem like not much of a problem to an outsider.

But this sort of shit is not about security, it's about saying which forms of religious practice are allowed, and which aren't.

Prisoners have rights, curtailed though they may be. But they are sent to prison as punishment, not for punishment.
posted by Pirate-Bartender-Zombie-Monkey at 4:55 PM on February 1, 2010 [4 favorites]


-UPDATE:
I have here, available for download, the entire complaint, which shows that it was filed as a class action alongside several Pagan inmates. Not, as past media coverage has implied, by McCollum alone (emph. mine)...

The complaint also lists the various discriminatory actions against Pagan inmates and McCollum perpetrated by the California correctional system. In addition, I was provided a copy of a document that proves the California Department of Correction’s key official and witness committed perjury before the court, regarding the most key components of the state’s case against Pagans...

It’s becoming increasingly clear that there’s a very good reason why the State of California wants to deny McCollum standing, because if this goes to trial it could potentially explode into a huge scandal, and cost several officials their jobs.
posted by Pirate-Bartender-Zombie-Monkey at 4:59 PM on February 1, 2010


they are sent to prison as punishment, not for punishment.

Well stated. I will be using this exact wording in future conversations about prisons, I'm certain.
posted by hippybear at 5:02 PM on February 1, 2010 [4 favorites]


not my original statement, but well worth using regardless
posted by Pirate-Bartender-Zombie-Monkey at 5:05 PM on February 1, 2010 [1 favorite]


One of the wickedest things I ever heard of done to an American inmate happened to a young man with Asperger's syndrome, who went to prison after involvement with some act of eco-terrorism, destroying Hummers or similar. (I don't recall the circumstances, unfortunately, or his name, but no persons were hurt.) The prison guard confiscated his copy of A Brief History of Time because, he said, it was "against Jesus."

Now I have read of endless beatings, rapes, gangs, racist violence, and abuse of authority in our prisons, but to be subject to that seems like its own special level of hell.
posted by Countess Elena at 5:24 PM on February 1, 2010 [2 favorites]


Wiccans got thier own official prayer circle this week in Colorado Springs...stop bitching already.
posted by shockingbluamp at 6:16 PM on February 1, 2010


[R]eligion is about freely and deeply held personal convictions or beliefs connected to an individualʼs spiritual faith and integrally linked to oneʼs self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.
...
[C]laimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make ... . In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief” (Edwards Books, supra, at p. 735) and not that a particular belief is “valid”.

-Syndicat Northcrest v. Amselem, [2004] 2 SCR 551 (Canada)

That is how the court should be defining religion. Sincerity of belief in a spiritual faith. I can't believe that American courts, which are admittedly much stronger on individual choice than up here, would have a list of accepted religions. That's insane.
posted by Lemurrhea at 6:18 PM on February 1, 2010 [1 favorite]


Wiccans got thier own official prayer circle this week in Colorado Springs...stop bitching already.
posted by shockingbluamp at 6:16 PM on February 1 [+] [!]


Please say that this is sarcasm.
posted by Avenger at 6:38 PM on February 1, 2010


My only datapoint here is that I used to sort of be in the Church Of Satan (I never actually joined but I knew many of the people), and they always used to base their main claim to being a legitimate religion around the fact that they're recognized in the Army Chaplain's Handbook and the US Army has official guidelines for Satanic religious services.

I guess I don't know that much about the Church of Satan, but the idea of Satanists relying on some process of Army bureaucracy to define their faith as legitimate seems a little incongruous to me. I thought they were all about experiencing vital reality through the sheer force of their own wills, rejecting conformity, and so forth. It surprises me that they cared whether any outsider, let alone one as conventional as the Army, considered them legitimate or not.
posted by strangely stunted trees at 7:07 PM on February 1, 2010


Ah yes, Colorado Springs, Conservative Libertarian Paradise
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:30 PM on February 1, 2010


strangely stunted trees: "I guess I don't know that much about the Church of Satan, but the idea of Satanists relying on some process of Army bureaucracy to define their faith as legitimate seems a little incongruous to me."

I always interpreted it as a kind of petulant gloating "hah, look at that, we got those people to put one of our rituals in their stupid book".
posted by idiopath at 9:02 PM on February 1, 2010


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