So claim the plaintiffs in Hartmann v. California Dep’t of Corrections & Rehabilitation (9th Cir. Feb. 19, 2013), and the Ninth Circuit let the case go forward:
Plaintiffs allege that the Policy violates the Establishment Clause because it “favor[s] some religions over others on a preferential basis.” They further 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. They submit that there are more inmates practicing the Wiccan religion at CCWF [the Central California Women's Facility] than there are practicing Jewish, Muslim, and Catholic inmates at CCWF. Yet, they claim that chaplaincy positions are available for the benefit of Jewish, Muslim, and Catholic inmates but not for Wiccan inmates.
Prison employment of full-time chaplains to assist inmates in their religious exercise is a permissible accommodation within the established parameters of the First Amendment. 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. 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. While federal courts refuse, “even where claims are made under the First Amendment, to substitute [their] judgment on … difficult and sensitive matters of institutional administration, for the determinations of those charged with the formidable task of running a prison,” a prison administration accommodating inmates’ rights under the First Amendment must do so without unduly preferring one religion over another.
The court is not making a finding that there would necessarily be a violation of the Establishment Clause. Such a finding can only be made in light of all the circumstances surrounding the defendants’ decisions. On remand, Plaintiffs must actually prove their allegations. For example, at a 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 correction facilities in the State. The allegations in Plaintiffs’ complaints suggest the former, but evidence presented during discovery may suggest that the latter is the case.
Another example of evidence relevant to an Establishment Clause violation would be a survey of inmate religious affiliation in the CCWF prison population and the broader CDCR [California Department of Corrections & Rehabilitation] prison population. Such a survey is prominently mentioned in [an earlier decision], which is discussed in footnote 4 of this opinion. If such a yearly survey was conducted and filed as a public document, the district court could take judicial notice thereof, or the parties could include such a survey in their papers. We recognize that this comes to us as a decision on the pleadings and that the defendants may have such proof, but it has not been made a part of the record.
Note that, according to the footnote 4 mentioned in the excerpt, a survey of inmates in California prisons generally “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.’” This suggests that, if the chaplains are indeed hired on a system-wide basis and are supposed to also serve other jails, then the lack of Wiccan chaplains might be quite justifiable. (Earlier, the court notes that the Free Exercise Clause doesn’t require the government to provide chaplains for each denomination represented in the prisons, so the only question here is whether the government is deliberately preferring some denominations over others, out of proportion to inmate needs.)