The McCollum Response
As has been reported in The Wild Hunt, Patrick McCollum has responded to the ruling of the 9th Circuit. I, first off, want to make sure that it is unambiguously clear that I support McCollum's work. I absolutely understand what a profoundly uphill push he has had and continues to have. I also want to make it as clear as possible that my goals in my writing on the subject were not intended to suggest that he nor the inmates named as plaintiffs don't have a case. I absolutely believe they do, and I would love nothing more than to see the case get tried on its real merits.
When 9th Circuit released its opinion, there was a great deal of chatter in the community, much of it based on an assumption that the summary ruling in the lawsuit and the subsequent affirming of the ruling in the 9th Court had come after having considered the case in full. Rather than have several different conversations about standing, I opted to instead to expand one conversation I'd been having into a blog post, with the hope of putting some information into what I saw, at the time, as a void. Given the response which I've received to the post, I do feel it's at least helped to bring the conversation more into focus.
After reading McCollum's response and having a few discussions with some of my fellow Pagan legal wonks, there are some corrections and clarifications which I want to make.
- The "separate cases" concept which I listed was, honestly, slightly inaccurate. This was brought to my attention by Alley V. (Alley, if you want better attribution, please step forward.) My goal in discussing things in that fashion was to show independent sets of claims and I went so far as to call them "two cases." The claims are all still being stated in a common context, so there really isn't an advantage to considering them separate cases. I, ultimately, used a poor metaphor here, and I should have reached for a different one.
- After some conversations with some other Pagan legal wonks (a lawyer and a law student), and especially after reading McCollum's response, I have to take back my prior opinion about the exemption to Title VII and I also disagree with my prior agreement with the 9th Circuit that McCollum's right to employment is derivative of the inmates' rights of free practice. I was, in fact, uncritically applying an exemption which is mostly for private religious institutions and not for a state chaplaincy program such as is discussed in this case. Also, McCollum notes that the court mistakenly believed his claims related to Title VII were on appeal to summary judgment. I haven't checked, but I'll assume McCollum is correct, in which case the 9th Circuit did make a mistake In fact, the more I think about it, the less I like it.
With regard to what McCollum says about the administrative tactics of the CDCR, I have absolutely no doubt. To call the deck stacked is to make a serious understatement, and I have no doubt that demonstrating that the exhaustion of administrative channels is beyond difficult. Frankly, I don't know how McCollum has had the energy to persevere under these conditions, because I don't know that I would. My point from the beginning was to show that this is a series of setbacks based on legal procedure and not on the merits of the case. That's a setback, but not utter defeat.
And I want to make clear, again, my support. As I stated previously, I'm not a lawyer. I, in fact, hoped that making a blog post explaining the issues of procedure would help others to understand what the 9th Circuit's ruling was and was not about. I'd even hoped that it might spur further analysis and discussion of the case (though it hasn't fully). All the direct fire I know to provide in the ongoing struggle are those that are available to us all...writing letters, contributing to the ongoing effort, and remaining hopeful about the future.
