It is difficult to define “Wiccan” because the word includes an amalgam of rites and rituals that apparently attempt to form a secularist religion.  Regardless of its mission or an understanding of its purpose, Wiccan prisoners in state prisons considered themselves religious enough to demand a chaplain.  Prison officials held hearings and administratively denied Wiccan requests.  Unsurprisingly, several of the Wiccans sought judicial review in U.S. District Court alleging violation of every conceivable Constitutional right possible.

Plaintiffs filed a First Amendment Free Exercise claim; a First Amendment Establishment claim; a Fourteenth Amendment Equal Protection Claim; the Religious Land Use and Institutionalized Persons Act;  Article I Section 4 of the California Constitution, i.e.  the equivalent of the federal First Amendment Establishment Clause. The core of the Wiccan 42 U.S.C. 1983 claim sought public expense to hire a full time chaplain. Plaintiffs alleged that a Wiccan “chaplain” was available only infrequently, but all other major religious faiths employ representives paid at public expense and always available.  It took three amended complaints before the district court denied all claims.  Plaintiffs appealed to the 9th Circuit.

To its credit, the 9th Circuit panel denied all claims except the First Amendment Establishment Clause and the State Constitution Freedom of Religion Exercise Clause. The 9th Circuit panel noted not every inmate is entitled to a special spiritual adviser, but the court allowed the pleadings to remain on the Establishment Clauses, state and federal. According to the panel, the Wiccans can attempt to prove at trial the criteria used by the prison in employing a “chaplain” is not neutral. Of course this will require discovery, trial time, attorney fees and possible appeal.  And you wonder why the 9th Circuit is cluttered with these absurd cases. 

With respect, the rationale for this decision is unclear, vague and of no value as precedent in future cases.  The 9th Circuit panel cited several cases from the Supreme Court and other Circuits concluding that judges are not administrators and should not interfere in the administration of a prison by those employees and mangers who understand and work within the system. This advice has been repeatedly ignored by the 9th Circuit, ordering  prison officials to comply with certain requests costing the Department money, delaying processing and supervision of inmates, and otherwise interfering with administration of an institution housing irresponsible, vicious and dangerous inmates.

The Hartmann opinion is worthless and ought to be reheard.  

 In one of the 9th Circuit’s more recent departure from reality: the state prison (in a federal court) cannot cut hair of an inmate who alleges his religion forbits it; Warsoldier v. Woodford, 418 F.3d 989 (2005). And this was a court case?

In Christian Legal Society Chapter of the Univ. of Cal. Hastings School of Law v. Martinez, 130 S.Ct. 2971 (2010) a 5-4 majority of the Supreme Court held the law school policy prohibiting discrimination based on race, gender, and a variety of other “protected classes” applied to the Christian Legal Society and foreclosed the group from accepting a member who did not subscribe to the organization’s religious principles. Other secular groups could impose the same prohibitions, yet the Law School permitted them to use the facilities of the premises although denied to the Christian Legal Society.  According to the majority, the Law School allowed “all comers” to join various groups despite their restrictions except the Christian Legal Society.
The 9th Circuit took up a similar case in Alpha Delta Chi Chapter v. Reed.  San Diego State has an unequivocal, unambiguous and repeatedly established written policy emphasizing diversity and its importance to all students. Almost a “racial preference” policy in tone.  Because the Alpha Delta Chapter mandates compliance with Christian principles as a condition of membership, it encountered the same resistance from the San Diego Administration as in Hasting in using school premises and other “perks” allowed to secular groups.  The Chapter filed suit in U.S. District Court and did not prevail.  The Chapter appealed to the 9th Circuit.

The 9th Circuit panel cited the Supreme Court case above and found nothing wrong with excluding the Alpha Delta Chapter from recognition as an approved student group.  To its credit, on remand the 9th Circuit panel allowed the Alpha Delta Chapter to provide evidence that the San Diego State Administration was applying its policy in a discriminatory manner and ordered the District Court to conduct findings on that issue.

The anomaly of this case: In its student policy manual, San Diego State repeatedly mandates a non discrimination policy applicable to race, gender, ethnicity, sexual orientation, encouraging students to attend any program approved by the administration which does not discriminate. The administration provides various perks” to approved groups.  Lauding its non discrimination policy, its policy presumably would open the doors to anyone on the basis of “status” but not “beliefs.”  In other words, the policy discriminates against Christians who foreclose membership from those who do not share their convictions unrelated to their status.. “Beliefs,”not “status,” toward a group should allow membership to anyone who shares those convictions.
Note:  On the entire campus only the Christian group is denied recognition by the Administration. In a concurring opinion, the judge notes the San Diego State policy “marginalizes” some students in clear violation of the University exhortation to diversity.  And the record documents the same dilatory conduct of San Diego State personnel as in Hastings in determining approval as a student group.  For skeptics, the administration knows students all will graduate and go away.