Rhett Aultman Engineer, athlete, and mystic atheist

The McCollum decision, standing, and fighting the real fight

[UPDATE 6/13/2011] I'd encourage interested parties to please read the comment threads of this post for errata, corrections, and clarifications.

So, the 9th Circuit has ruled in the McCollum case which was ostensibly to challenge hiring practices by the state of California with respect to Pagan chaplains for prison inmates.  At least, that's what various voices in the Pagan blogosphere would like you to think.  If you dig into the actual text of the ruling, though, what you really find is that nothing about this matter was decided whatsoever.  Instead, what we have here is a ruling on standing to bring the lawsuit in the first place.  A great deal of howling is going on about religious freedom, much of it tinged with feelings that society is continuing a long chain of unjust behavior regarding Pagans.  Most people involved, however, haven't really spoken to that actual subject of discussion in the appeal and in the court's conclusion.  I can understand why...law is a fairly obscure subject and most people don't engage with it frequently.  I will state for the record that I am not a lawyer nor do I earn my paycheck working in law, but I was required to learn the basic language of law as part of my undergraduate degree and I've since shored that up with a healthy dose of hobbyist study on the subject.  Again, though, I'm no lawyer.

I'm going to attempt to put this in a metaphor that will be recognizable to Pagans.  Within my primary magickal group, the Open Source Order of the Golden Dawn, most of our degree advancement rituals follow a schematic.  First, the aspirant is brought into the temple.  Next, the aspirant is tasked to show the signs, grips, and tokens of each of the prior grades.  Then, the aspirant is challenged in a ritual drama.  Finally, the aspirant receives the "mysteries" of that grade, including the signs, grips, and tokens for that grade.  This is a schematic you see in a lot of other places, and I want to focus on that part where the principal is asked to demonstrate in some fashion that s/he is who s/he claims to be, that s/he is ready for the ritual, and that s/he really wants to go through with it.  That's an incredibly important part of the rite, as it establishes that, in fact, everyone's here for the right reason.  The ritual officers know that they're handling someone who's ready and willing and the principal also makes a statement of intent and competence through rising to the challenge.

In a lot of ways, a court case is a ritual as well, and the application of law follows a set of processes designed to make sure that, before the real legal work is undertaken, that everyone's there with proper reasons and competence.  A series of various legal tests provide this information.  These are generally called "threshold" tests, as they essentially establish that people really should cross the threshold to discuss the matter in the first place.  These threshold tests are an absolutely essential part of maintaining justice in a society which operates on the rule of law because they maintain proper order in the very institutions which maintain the rule of law.  A rather famous threshold test is known as "de minimis," for example, which establishes that complaints brought to a court not be about trivial matters (such as a lawsuit over $1).  I won't list them all here, but I will say that they all together answer a handful of important questions:

• Who's got the grievance?
• Is the person bringing the grievance the injured party or speaking, with due cause, on the behalf of the injured party?
• Is the grievance a concern of the court, the arbiter of last resort?

Without stopping to establish answers to these questions, there can be no order in a court system.  Without them, courts cannot be sure that the people in court are there to settle a real injury, that the parties in court aren't there because they're arguing about things in the abstract, or that the court isn't wasting its time on a trivial matter or one that could be resolved without the court's involvement.  In short, these threshold tests are what separate a court from an argument at the pub.

At issue in the McCollum decision is the threshold test of "standing," which essentially speaks to the second of the three questions, although I hope to show how the third question comes into play as well.  Essentially, "having standing" is proof that you've got a dog in the fight somewhere.  It keeps people from approaching the court without personal cause.  A series of tests exists to ensure that you have standing to your claims.  The most surefire one is for your claim to have something to do with an injury you received from the other party.  For example, if I were to pray to Xenu in a park in Oakland, and the Oakland local government made a "no praying to Xenu" law, and I were arrested for violating that law, then I have directly experienced an infringement of my rights and I therefore have standing for my lawsuit against the city of Oakland.  In almost every situation, this is the best way to establish standing-- for the most directly assailed party to be the plaintiff.  There are ways to have standing as a third party, and I'll get into that in a second.

So, for starters, let's get into the court's opinion.  First off, it's worth noting that McCollum is listed first in the plaintiffs but that the majority of the material is regarding the violation of civil rights of the inmates.  In essence, there are two separate and distinct cases in here but McCollum and counsel decided to roll them into an omnibus case.  The essence of McCollum's claim is that he was denied a paid chaplain position on the grounds of being Wiccan and that refusal to hire him constitutes a violation of the First Amendment rights of a number of Wiccan inmates.  This is actually two distinct cases and two distinct injuries, each with easy to define plaintiffs:

1. "McCollum vs CDCR" : The California Department of Corrections and Rehabilitation has denied employment to Patrick McCollum in a manner which is discriminatory to his religion and in a fashion which violates the Establishment Clause of the First Amendment.
2. "Duncan et al vs CDCR" : The California Department of Corrections and Rehabilitation has failed to respond to the need of Wiccan inmates to have proper access to clergy, and in so doing has violated the First Amendment freedoms of the inmates, and through refusal to provide paid clergy on a basis selective of religious sect, has violated the Establishment Clause of the First Amendment

I'm not saying that either of those cases would actually succeed, but either has a clearer standing alone than they do when tied together in the case that actually came before the 9th Circuit.  They both have a clear plaintiff with a specific injury, and this actually does go a long way towards establishing standing to proceed.

However, McCollum's claim isn't actually about his own rights.  His complaint is that the process for considering chaplains for a paid position doesn't violate his right but rather the inmates rights to free exercise of religion.  This is a very important point.  Generally, you go to court to talk about your injuries and your rights and not those of someone else.  There are ways to bring a claim as a third party, however, and this appears to have been McCollum's tack.  In doing so, there are some tests that you have to be able to pass.  The first is that you still have to have been an injured party.  The second is that you have to have some relationship to the party you're speaking on behalf of.  The third is that you must demonstrate that the party you speak up for cannot speak up for themselves.

McCollum, ultimately, failed the third of these tests.  I'll quote from the court's opinion:

"We agree with the district court that the inmates are able to assert their own rights and that McCollum fails the essential third requirement for standing—a showing that the rights holders are impeded from asserting their own claims.  See  Powers, 499 U.S. at 409-10. Like the district court, we note that prisoners have challenged the program in this very lawsuit and in at least one similar suit."

In essence, McCollum's presence in the case is superfluous.  The mere fact that the inmates appear as plaintiffs in the case indicates that they are capable of asserting their rights and to have their grievance heard in a court of law invalidates McCollum's attempt to hold standing in the case because for him to assert the inmates rights rather than his own requires showing the inmates cannot assert their own rights.  They, in fact, can, and the opinion of the 9th Circuit welcomes them to do so:

"...they would have the opportunity to bring similar claims in the future if they comply with procedural requirements. It is the inmates, not McCollum, who have standing to pursue the primary claim he articulated..."

McCollum also attempts to claim standing through something known as taxpayer standing.  Essentially, taxpayer standing attempts to show that you have the right to stand in court based on the fact that taxes you pay are creating the injury in question.  This is a very difficult form of standing to achieve and requires that a specific test demonstrate a connection between the taxes he pays and the infringements of rights in question.  If, for example, I were to pay the city of Oakland a 3% "Prevent prayers to Xenu" tax which pays for the cost of arresting people who pray to Xenu, I can claim taxpayer standing.  Had McCollum challenged the concept of a paid chaplaincy program, he'd have had a better chance at taxpayer standing, but he didn't do this.  This form of standing is actually very rare because it has to be very specific, very much focused on the dollars-and-cents damage, and has to demonstrate a link from the plaintiff's taxes to the grievance in question.  Anything less than that is the legal equivalent of yelling at a traffic cop that you pay his paycheck.

Next, because it's quick to do, I'll mention McCollum's claims about his own rights before I talk about the inmates claims of their own rights.  McCollum had his claims of Equal Protection violation and of retaliation dismissed due to lack of evidence.  Any workplace discrimination case, and the claims of Equal Protection violation and of retaliation are just that, requires that you produce evidence to demonstrate your claims.  This is why the first piece of advice given to anyone facing sexual harassment is to document everything.  These sorts of cases can be quite the uphill battle, but a paper trail of one's abuses is the essential tool for climbing that hill.  McCollum didn't produce this, and his claims were therefore dismissed.  Finally, he makes a claim regarding Title VII, which prevents an employer from denying employment based on religion.  Title VII has an exception for cases where one's religion is a critical component of the job description, and that would include chaplains, and the court also concludes that the job of a Wiccan chaplain is a function of the free exercise rights of the inmates and not part of the intrinsic rights of McCollum.  This actually makes a great deal of sense, since there would be no violation of McCollum's rights if (1) there were no Wiccan inmates (2) there were Wiccan inmates but they didn't want a chaplain.  The existence of the position is contingent on the rights and desires of the inmates rather than on the rights and desires of McCollum.

With that out of the way, we can actually move on to the strongest part of the case, which is the claims made by the inmates.  First of, I want to give a Colbert-style wag of my finger to McCollum's legal counsel.  According to the court's opinion:

"Although there are seven remaining inmate plaintiffs on appeal, the plaintiffs assert arguments for only five inmates in their opening brief."

The brief is a very important document in the appeals process.  Before the court hears the case, it takes briefs from the parties in question which explain their position, as well as from other parties that wish to weigh in on technical aspects of the matter (known as amicus curiae or "friend of the court" briefs), and uses these materials to decide to hear a case and to make sure that the court has done its homework on the relevant points of law.  A proper brief is essential to an effective case, as it allows the justices time in advance to understand each position and how it flows forth from existing law and precedent.  In effect, it lets everyone do their homework before the case is heard.  This makes the case a lucid discussion of the matter at hand.  Bringing up claims not listed in the brief is heavily out-of-bounds, and the court exercised its right to not hear them.

My question is-- who forgot those claims in the brief?  That's a serious oversight.

But let's address the claims of the inmates.  They have standing to speak to their own rights (just as McCollum had standing to his own claims but these claims were dismissed).  This is where the third of the three questions I listed above comes in-- is this the court's business?  America has a legend of being a litigious society, but believe it or not, our courts still function as the last resort for resolution of grievances (which is a major reason so many cases are settled out-of-court).  In a civil society, it is entirely preferable to resolve grievances without the involvement of the courts; courts become involved when a resolution can't be reached through other means.  Furthermore, the courts aren't interested in hashing out the relatively distant past unless it's demonstrable that the damage done is still meaningful.  These two aspects of a claim, known as exhaustion and timeliness, are critical in a court's decision to proceed with a case.  Unfortunately for the plaintiffs, every claim listed was either time-barred (brought to court too late) or unexhausted (not all avenues for remedy were explored).

From the opinion:

"Spooner’s grievance stated that CDCR did not have a full-time chaplain, but did not suggest a full-time chaplain was required, instead proposing that Spooner himself serve as an inmate minister.  Iloff’s grievance alleged religious discrimination in the form of unequal access to worship spaces. Dascus similarly grieved of inadequate access to sacred items and generally inadequate accommodations of minority religions. Mourland alleged insufficient access to Wiccan vendors of religious materials.  These grievances give notice that inmates allege the prison policies fail to provide for certain general Wiccan religious needs and free exercise, but do not provide notice that the source of the perceived problem is the absence of a paid Wiccan chaplaincy."

The claims themselves are a bit telling.  They make a number of free exercise claims, yet never actually request a full-time paid chaplain.  In fact, Spooner's grievance itself suggests that the remedy be that he be appointed to serve as an inmate minister. Together, they show that: (1) a paid full-time chaplain was not asked for (2) that an alternative, an inmate minister, was requested.  In law, it's very important that you ask for exactly the thing you want.  If someone breaks your leg and you need $5,000 to pay your medical bills, you ask for $5,000.  If someone limits your access to your chaplain and you need access to a chaplain to make use of your rights to free religious expression, you need to ask for a chaplain.  If this isn't done, then the defendant has a very powerful defense-- "I never knew what was needed."

A final claim relates to inability to interact with Wiccan clergy in 2002, which is too long ago to qualify as timely.  The claim was time-barred.  This dismisses all the claims of the plaintiffs: McCollum's claims of his own rights lacked evidence, the inmates claims were unexhausted and/or time-barred, and McCollum could not establish third-party or taxpayer standing to make claims on behalf of the inmates.  With no claims left, the court rendered a decision without actually considering any of the substance of the case.

A generous interpretation of these claims is that the prisoners listed a number of ways their freedom of religious expression was being curtailed, and many (if not all) of these things could have been resolved through a paid full-time chaplain.  McCollum was willing to take on this role, and was denied, and the resulting series of claims address McCollum's experience in being denied and the inmates listing the circumstantial services a chaplain could provide for them.  The problem here, however, is that is puts the onus on the defendant and the courts to connect the dots, and courts don't exist to connect the dots.  Courts exist to take incorrectly connected dots and re-connect them in an appropriate order.  Every one of the claims presented in McCollum's case dances around the question of a full-time paid Wiccan chaplain, carefully showing the outline of where one would resolve a number of free exercise issues, yet none of them went to what the heart of the matter really should have been-- the inmates asking for a chaplain and the CDCR denying McCollum a position with knowledge that one was needed.

And in law, as in ritual, if you don't pass the challenge to enter the hall, you don't get to go through the ordeal within.  The court at no point made any decision about religious freedom.  They rendered an opinion on whether or not the claims of the plaintiffs were ready to be before a court, and their claims were either premature (unexhausted), late (time-barred), or lacked supporting evidence.  There could have been a very interesting case to be heard had due diligence been done up front, but this wasn't the case.  Claims were made about the central subject -- CDCR's hiring policies in its chaplain program -- yet every claim was on a tangent to the central subject and due diligence was served on none of them.  And on the note of due diligence, while I'm making parallels to ritual, I'd like to mention something else.  In the bulk of the OSOGD's rituals, there's an officer who's ready to help you should you fumble on a challenge.  In law, as in ritual, you're supposed to have an officer with you to help keep your words true...that's what your lawyer does.  As I alluded to above, I really have to wonder what in the heck the counsel to the plaintiff was doing here, because in all the discussion on the Wild Hunt regarding this case, there are paralegals and educated laypersons who are saying the same thing I'm saying here.  Determining who has standing to bring the claims is, in most cases, an incredibly basic matter.  Why wasn't this caught before the lawsuit was brought in the first place?

And this brings me to my final point.  If Pagans want to make changes in society, it's time to start building the institutions that make change possible.  There are some standard weapons in the battle for justice in a civil society.  Money is one of them.  Lawyers are another one.  If the goal was truly to lead to Wiccan clergy in California prisons, a lawyer capable of handling the concerns needed to get started long before the initial lawsuit was filed.  Indeed, it needed to be decided, before the suit began, how to ensure that all the proper requests of the CDCR had been made up front and how to develop a proper trail of documentation and evidence could be generated.  Again, it's much like bringing a sexual harassment suit-- there's lots of work to be done before filing a lawsuit.  In fact, most of the work is done during that phase.  That is fighting the real fight, regardless of American cultural mythology about our appellate courts.  Going to court is where you present the results of your investigatory efforts.  Had McCollum had better legal representation, it's quite possible that things would have been handled in a far different way.  The 9th Circuit's opinion might have actually had something to do with the substance of religious freedom and not about whether or not the people in court were ready to present their case.

In law, as in ritual, you have to arrive ready, you have to be able to cross the threshold, and your support should be more on the ball than you.  When this doesn't happen, you don't get to the good stuff.  Until the Pagan community is ready to carry these lessons into the real world, decisions like the McCollum case will be the most common results of engaging the judicial system to properly claim our rights.