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Wiccan Inmates Get a New Shot at Suing California

(CN) - California must face claims that it violates the establishment clause in refusing to hire a full-time chaplain for imprisoned Wiccans, the 9th Circuit ruled Tuesday.

The federal appeals court in San Francisco revived two claims among many filed by two inmates who alleged that the lack of a full-time Wiccan chaplain in the California state prison system violated various constitutional rights.

Shawna Hartmann, who has since been released, and Caren Hill claimed that there are more, or just as many, inmates practicing the Wiccan religion in the Central California Women's Facility (CCWF) in Chowchilla, Calif., as there are practicing Jewish, Muslim and Catholic inmates.

While there are full-time, sect-dedicated chaplains for the latter faiths at CCWF, Wiccans allegedly must make due with a volunteer chaplain of their own faith or other paid staff chaplain.

After allowing three amended complaints, U.S. District Judge Lawrence O'Neill dismissed the plaintiffs' claims under the First Amendment's free exercise and establishment clauses, the 14th Amendment's equal protection clause, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the California Constitution.

The 9th Circuit mostly agreed Tuesday but stopped short of dooming the action altogether, finding that the prison system could be allocating its chaplaincy resources improperly, and thus endorsing one faith over another.

Plaintiffs "assert that defendants do not apply any 'neutral, equitable, and unbiased criteria' to determine chaplain hiring needs or other religious accommodations for inmates of various faiths," Judge Kevin Duffy wrote for a three-judge appellate panel.

"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," he added. "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."

The panel highlighted that this decision does not represent "a finding that there would necessarily be a violation of the Establishment Clause," but remanded the case back to the lower court for another look.

"At minimum, a court would have to ascertain whether paid staff chaplains work only at the CCWF or are required to travel to other prisons, jails, and corrections facilities in the state," Duffy wrote.

A survey of the CCWF population's religious preferences would also be relevant, he added.

A like-minded survey was part of the record in a similar case decided by the 9th Circuit in 2011, in which the court rejected Wiccan chaplain Patrick McCollum's First Amendment, free-exercise and equal-protection claims against the California Department of Corrections and Rehabilitation for refusing to add him to its paid chaplaincy program.

According to those decade-old estimates, there were approximately 598 inmates who identified themselves as Wiccan in 2002. But a 2007 inmate survey "indicated 42,666 Protestant inmates, 28,884 Muslim inmates, 23,160 Catholic inmates, 8,296 Native American inmates, 3,296 Jewish inmates, 183 Wiccan inmates, and 2,678 inmates identified as 'other,'" according the ruling.

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