Lawyers Comment on the Pagan Prison Chaplain Case

Of all the discussions of the prisoner “free exercise of religion” issue that produced a lawsuit brought by California volunteer Pagan prison chaplain Patrick McCollum, I recommend that you read  Wiccan lawyer Hecate Demetersdatter’s explanation.

The appeals court has not decided on the rightness or wrongness of the basic question, but it has upheld the lower court’s ruling that McCollum does not have legal standing to bring the case, because he cannot show that he himself has been injured.

But here’s where, IMHO, Judge Schroeder sets out a clear path that shows how to build a successful case. Pagans need to request visits from Pagan chaplains (in hospital, when they are concerned about their family members, before appeals and other trials, etc.) and document that they get denied because their chaplains are not “regular paid chaplains.” They’ll probably also have to accept a visit from, say, a Catholic priest who counsels them about the evils of Witchcraft and then show why that didn’t work for them, because CDCR’s policy seems to envision paid chaplains ministering to prisoners outside their religions when necessary. And then, with the help of McCollum and those willing to raise funds and do magic, etc., they’ll have to pursue their claims in a timely manner.

More careful foundational work is going to be required, in other words. Someone—or better yet, several someones—is going to have to show “injury.”

Prisoner “free exercise” cases are not slam-dunks. Law blogger Howard Friedman lists a couple of recent instances that have not gone well for Pagan prisoners. (Watch his blog: these cases turn up frequently.)

Friedman’s summary of the McCollum decision:

The court concluded that many of the chaplain’s claims were derivative of inmate’s claims, and the inmate plaintiffs were dismissed because their claims were untimely or they had failed to exhaust administrative remedies. It rejected the chaplain’s claims that he had either third-party or taxpayer standing to assert the religious rights of Wiccan inmates.

Which again is about the issue of standing. I see no point in further appeals. It sounds as though a whole new case would be more successful, given time and willing plaintiffs.

2 thoughts on “Lawyers Comment on the Pagan Prison Chaplain Case

  1. Pitch313

    That ‘5 faiths” policy of the California Department of Corrections is discriminatory.

    But the legal system is a matter of laws, precedents, interpretations, and technicalities. Cases go forward as the legal system finds them worthy in all their details. It looks like some details were found not to be worthy of further court attention.

    But I imagine a different case might go forward.

    By the way, I I recollect what the decision says, the Native American category was added as the result of a consent decree. The way I interpret that, it wasn’t so much that CDR administrators saw inherent value in Native American spirituality as it was that they saw they would not win any fight against allowing it. That is, it’s more a “4 + 1” policy…

    1. But that’s the point: discriminatory schminimatory, the appeals court says that Patrick is the wrong person to bring the case.

      As happened with the Native American chaplains, it will have to be affected inmates who bring the case—after they can show that they have gone through all administrative channels.

      Actually, what we are seeing here is the creation of a new religion called “Native American,” more or less based on Northern Plains practices and with little connection to most of the tribal religious traditions from the rest of the continent. But that’s another issue for historians of religion.

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