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Wiccans Can Pursue Challenge to CA Prisons' Five Faiths Policy

By William Peacock, Esq. | Last updated on

The Wiccans are at it again - and unlike their last challenge of the Five Faiths Policy in the Ninth Circuit, this time, they walked away semi-victorious.

California prisons provide paid chaplains for members of certain faiths - the Favored Five, if you will. These five "conventional" or "majority" faiths include a representative of the Catholic, Protestant, Islamic, Jewish, and Native American faiths, (though one wonders how one representative can cover the gamut of Native American religions).

For everyone else, there are "accommodations" and volunteer clergy.

Two inmates, on behalf of all Wiccans, sued the California Department of Corrections, and more than a dozen other entities, alleging violations of their First Amendment right to free exercise of their religion, an equal protection claim, and claims under the Establishment Clause and the California Constitution.

All of their claims were dismissed by the lower court.

Yesterday, the Ninth Circuit upheld the dismissal of some claims, while reviving the Establishment Clause and California Constitution claims.

In upholding the dismissal of the free exercise claim, the court stated:

"[W]hile 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."

However, while the state may not be required to provide the chosen chaplains, the fact that they have chosen to support the Five Favored Faiths may give rise to an Establishment Clause violation.

"Unlike Plaintiffs' claims that the Policy deprives them of a "reasonable opportunity" to practice their religion ... their Establishment Clause claim asserts that the Policy constitutes an unconstitutional endorsement of one religion over another ... 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."

One of the plaintiffs' alleged facts was that there were more Wiccans than practitioners of some of the favored faiths. Indeed, the court cited two conflicting studies in a footnote. One, from 2002, found 598 Wiccan inmates in custody compared to only 306 Jewish inmates. However, in 2007, there were only 183 Wiccans counted against 3,296 Jewish inmates.

Obviously, those statistics conflict. Either there was a Jewish crime wave or there were a lot of in-prison conversions. Of course, there is also the possibility that surveys could have been faulty.

Sorting out surveys and methodologies is now the district court's problem: The Ninth Circuit kicked the case back for further proceedings.

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