Simpson v. Chesterfield County

[Lund, Christopher]

The Fourth Circuit just released a very interesting case, Simpson v.
Chesterfield County - available here,
http://pacer.ca4.uscourts.gov/opinion.pdf/041045.P.pdf
<http://pacer.ca4.uscourts.gov/opinion.pdf/041045.P.pdf> . 

 

            It's a fascinating twist on Marsh v. Chambers.  Simpson is a
Wiccan who brought suit against the County's practice of prayer.  Now most
of the lawsuits in Marsh's wake have been to shut the prayer down, either on
the basis that the public entity is not sufficiently "legislative" or
because the prayer was somehow "sectarian."  But Simpson is not trying to
shut the prayer down; she's trying to join in - the Board opened up their
meetings to members of the public to come and give prayers.  (The
prayer-givers were overwhelmingly Christian, but there was at least one
example each of a Muslim and Jewish prayer-giver.)  Simpson wrote the Board,
asking for her turn.  They turned her down, saying that their invocations
"are traditionally made to a divinity that is consistent with the
Judeo-Christian tradition" (their words).  (Simpson, by the way, was a
monotheist and her invocations were entirely nondenominational - well within
that aspect of Marsh.)

 

            The Fourth Circuit today upheld the Board's policy, holding that
Marsh v. Chambers gives the County the discretion not only to have a
nondenominational prayer, but also to select the prayer-giver.  Basically,
the Court's reasoning boils down to this: The prayer-giver in Marsh was of a
single denomination, a Presbyterian chaplain.  And if Nebraska could have a
single Presbyterian chaplain give prayers for sixteen years, surely the
County could have a more inclusive policy that includes at least some others
(i.e., Baptists, Catholics, Jews, Muslims, but not Wiccans).  Of no concern
to the Court is the fact that Simpson was singled out for exclusion (unlike
Marsh), or that the basis of the singling out was theological.  The Court
also tersely dismisses as inapplicable a passage from Marsh that suggested
that "proof that the chaplain's reappointment stemmed from an impermissible
motive" would be constitutionally problematic.  

 

            Thoughts?  (I certainly have mine, but I am biting my tongue for
the moment.)

 

            Chris

 

Christopher C. Lund

Visiting Assistant Professor

University of Houston Law Center

100 Law Center

Houston, TX  77204-6060

cclund at central.uh.edu

(713) 743-2553 (direct)

(713) 743-2122 (fax)

 

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