Metropolitan News-Enterprise


Wednesday, February 20, 2013


Page 1


Court Revives Action to Require Wiccan Chaplains in Prisons


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has struck a blow for the civil rights of witches, remanding to the District Court a dismissed action to establish the entitlement of Wiccans to a paid, fulltime chaplain in women’s prisons.

Two women, each incarcerated at a Central California Women’s Facility (“CCWF”), one in Chowchilla and the other (now released) in Corona, brought an action against the California Department of Corrections and Rehabilitation, and others, to challenge a policy under which chaplains are provided only for those who are Catholic, Jewish, Muslim, Native American, or Protestant.

The plaintiffs contended that “there are more inmates practicing the Wiccan religion at CCWF than there are practicing Jewish and Muslim inmates at CCWF, and the number of inmates practicing the Wiccan religion is more than or comparable to the number of practicing Catholic inmates.”

Wicca is defined in a 1985 California Supreme Court opinion as “the religion of witchcraft.”

The District Court in Fresno dismissed the action in 2011 after finding that the third amended complaint was “confusing and a burden to any reader,” that the plaintiffs had four chances “to ‘get it right,’ ” and that after two years, the defendants “are in no better position to ascertain potential claims against them as when the original complaint was filed.”

An appeal was heard before Circuit Judges Ronald M. Gould, Milan D. Smith Jr. and by Kevin T. Duffy, a senior judge of the U.S. District Court for the Southern District of New York, sitting by designation. Duffy wrote the opinion.

Establishment Clause

He said that the action was properly dismissed to the extent it was founded on the First Amendment rights to free exercise of religion and equal protection, and under the Religious Land Use and Institutionalized Persons Act. It should have been allowed to proceed, however, under the First Amendment’s Establishment of Religion Clause, and under the California constitutional analog, Duffy wrote.

The visiting judge explained:

“Unlike Plaintiffs’ claims that the Policy deprives them of a ‘reasonable opportunity’ to practice their religion and imposes a ‘substantial burden’ on their religious exercise, their Establishment Clause claim asserts that the Policy constitutes an unconstitutional endorsement of one religion over another. Accepting Plaintiffs’ allegations as true, the prison administration has 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.”

Duffy declared that “a prison administration accommodating inmates’ rights under the First Amendment must do so without unduly preferring one religion over another.”

He added:

“The court is not making a finding that there would necessarily be a violation of the Establishment Clause. Such a finding can only be made in light of all the circumstances surrounding the defendants’ decisions. On remand, Plaintiffs must actually prove their allegations.”

The jurist suggested that evidence be introduced based on a survey of religious preferences of inmates in CCWF, as well as the prison population as a whole. He proposed an annual survey of which district judges could take judicial notice.

State Constitutional Claim

Duffy also pointed to the Establishment Clause in Art. I, Sec. 4 of the California Constitution which provides:

“The Legislature shall make no law respecting an establishment of religion.”

He said the California Supreme Court has held that the state provision coincides with the federal one. Duffy wrote:

“For the reasons discussed above with respect to Plaintiffs’ Establishment Clause claim, we reverse and remand the district court’s dismissal with prejudice of the state constitutional claim, over which it retains supplemental jurisdiction.”

The case is Hartmann v. California Department of Corrections, 11-16008.

Other Litigation

Other courts have considered claims of Wiccan inmates that their religious rights were being trammeled.

Last Wednesday, United States Magistrate Judge Carolyn K. Delaney of the Eastern District of California issued findings and recommendations in the case of a Wiccan state prisoner who claimed, among other things, that his “wands” and “chalices” were taken from him and destroyed. Delaney scoffed that the “wands” that were confiscated were wooden sticks with sharpened crystals at the ends.

“It does appear that the crystals attached to the rose bush branches are pointy and could be used as weapons,” she wrote.

The two “chalices” were prison-issued cups that had been altered.

Delaney recommended that the prison employees’ motion for summary judgment be granted.

The United States District Court for the Northern District of Indiana on Nov. 2 granted summary judgment to prison officials who had been sued by a Wiccan whose property was taken from him. He claimed this burdened his exercise of religion.

The items included a ritual dagger fashioned out of “paper board”

On Sept. 4, the U.S. District Court for the Eastern District of Louisiana granted summary judgment to prison officials who were also alleged to have wrongfully seized religious articles. The order points out:

“1. Stones: can be used as projectiles to cause injury and to damage and disable locks. [¶] 2. Feathers: can be used as fletching for darts to be used a weapon; large feathers can also be used as a “shank” [¶] 3. Salt/Dirt mixture and container: the mixture can be used as a weapon by throwing it in someone’s face; the container can be used to hide contraband [¶] 4. Wooden stick: can be used as a weapon [¶] 5. Tarot/Rune Cards: can be used for gambling, trafficking, and trading.”

The Tenth U.S. Circuit Court of Appeals in 2007 agreed with a male prison, an adherent of Wicca, that his right to the free exercise of religion was denied by prison officials who would not allow him to possess tarot cards. 

The Fifth District Court of Appeal of Florida in 2004 rejected the contention of a woman prisoner that her Establishment Clause rights and those of other prisoners were being denied because they were not allowed to engage in rituals outside the prison walls on days when the moon was full.

Terming Wicca “a form of neo-paganism,” the state appeals court said the case entailed “the particular tension between the retained constitutional rights of inmates, and the requirements of prison authorities to safely and properly operate prison facilities.”

The court said the trial judge properly denied a writ of mandate because the Department of Corrections “does not have an indisputable ministerial duty required by law to accommodate” the prisoner’s participation in rituals. The opinion said the department’s “exercise of reasonable penological judgment, and reasonable institutional security considerations” prevailed.

The Seventh U.S. Circuit Court of Appeals in 2003 remanded a case brought by a Wiccan prisoner who was forbidden by prison official to cast spells on other inmates. The District Court must decide the controversy under the Religious Freedom Restoration Act, appeals court said.

“We cannot tell whether a limit on casting spells would ‘substantially’ burden [the prisoner’s] religious activities, nor can we tell on this empty record whether ‘spells’ cast by Wiccans would cause problems,” the opinion said, directing that the trial court make the determinations on a “suitable record.”


Copyright 2013, Metropolitan News Company