February 20, 2013
Ninth Circuit Allows Prisoner Wiccan Claim to Proceed
In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions.
The operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant. At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.
Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment. Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,
while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.
On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation. The panel, assuming again that the allegations were true, held that the prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs." the panel provided some guidance to the lower court (and counsel): at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.
The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants. But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.
[image: Wiccan symbol via]
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