Update on the McCollum Case
with the State of California
On Thursday October 7th 2010, the appeal of Reverend Patrick McCollum and his inmate co-plaintiffs was heard in the Ninth Circuit Federal Court of Appeals at the James R. Browning U.S. Court House in San Francisco, California. David Kiernan of the Jones Day law firm presented the oral argument in support of the plaintiffs' civil rights case, which is entitled McCollum, et al. vs. the California Department of Corrections and Rehabilitation, et al. McCollum and the inmate plaintiffs have challenged the State of California's controversial "Five Faiths Policy." In essence, the plaintiffs argue that California's current religious accommodation policy, which favors only Protestants, Catholics, Jews, Muslims, and Native Americans in California's correctional institutions, without any neutral justification for doing so, is unconstitutional, as it provides special accommodations to individuals of those five preferred faiths, while providing either no accommodation or lesser accommodations to individuals of faiths not included under the state's preferential umbrella. McCollum and the inmate plaintiffs are also arguing that the state does not have a neutral hiring policy for chaplains, and that in order for the state's allocation of chaplains to meet constitutional muster, the state must develop neutral criteria for such allocation among various religions.
Prior to filing the case, McCollum tried repeatedly to apply for open government chaplain jobs in the California Department of Corrections and Rehabilitation, but was denied the right to even fill out or submit an application to apply, solely on the basis that he is Wiccan. At no time, did state officials determine whether or not McCollum actually met the requirements for the job, but instead told him that the state did not hire Wiccans. He later learned that adherents of other minority faiths would also be denied the right to apply.
Throughout the course of the litigation, Wiccan inmates and inmates of other minority faiths have been continually harassed, humiliated, locked in solitary confinement, been refused clergy visits, denied religious services, and in several cases, denied last rites or end of life clergy support. That is, terminal inmates who have specifically requested end of life chaplain support from Reverend McCollum, have been summarily denied these services by the state, and have been allowed to die alone and unsupported, while inmates of the five favored faiths have been accommodated.
The Ninth Circuit appeal was heard by a three judge panel, which consisted of Justice Margaret McKeown, Justice Barry Silverman, and Justice David Thompson. Mr. Kiernan did an excellent job of presenting the plaintiffs' case, and articulately answered questions from the three judge panel. Mr. Josh Irwin of the California Attorney General's Office argued on behalf of the state in favor of maintaining the Five Faiths Policy, and against McCollum's and the Wiccan inmates' rights. He was supported by Mr. Alan Sobel, lead council for the California Department of Corrections and Rehabilitation.
The primary issues addressed at the hearing were whether Reverend McCollum has standing to bring the case, whether the inmate plaintiffs' claims are barred by the statute of limitations, and whether the state's Five Faiths Policy is unconstitutional because it has not been established through a policy that allocates prison chaplains, resources, or religious accommodations based on neutral criteria (e.g., numbers of inmates; extent of the demand).
"It was a humbling experience to be before the Ninth Circuit Court of Appeals and just being there gave me some hope," McCollum said. "However, it also concerns me that after 6 years of litigation focusing primarily on technicalities, that minority inmates are still denied even their basic right to practicing their religion and are suffering extreme consequences as a result of the state's preferential Five Faith Policies, and that the state of California, our government, has through their primary witness testified, that they, the state, have no intention of investigating the needs, numbers, or religious requirements of the Wiccan inmates in their institutions."
The State of California argued before the Ninth Circuit that its religious accommodation policies are not arbitrary. However, in a previous brief submitted to the United States District Court, the same defendants stated:
"[Defendants] withdraw any arguments or statements that erroneously appear to indicate that defendants, including CDCR, have actually analyzed or applied the six criteria [previously submitted by the defendants] . . . CDCR has never analyzed or applied the six criteria. . ., including liturgical needs and numbers of inmates of a particular faith group, in determining whether any of the five existing chaplain classifications are warranted, whether a new paid chaplain classification is warranted for pagans or for any other faith group, and/or whether to employ chaplains of any faith group."
In other words, defendants conceded previously the falsity of the central argument being made before the Ninth Circuit.
"I believe that one point David Kiernan made in his argument to the 9th Circuit says it all," McCollum stated:
"Kiernan pointed out that special accommodation of the Abrahamic faiths has dominated the State's religious accommodation policies for over 50 years, and that the only reason the Native Americans have been included is because they sued. I think it is time for the State of California to recognize the diversity of religion in the United States and its duty to accommodate religion in an unbiased manner. The State has a duty to the people of California and the United States to uphold the Constitution, not to serve as the advocates for preferred faiths or as the promoters of preferred theologies."