Discrimination Against Wiccans; Simpson v. Chesterfield County

[Marty Lederman]

I think this might be a very important case -- or, at the least, an omen of things to come, in a range of cases involving charitable choice, school vouchers, etc.  Indeed, it's the classic "Wiccan" hypo -- that many of us have been invoking, and wondering about, in various discussions of alleged "neutrality" in government aid and expression programs -- come to life.

We can all agree, can't we, that this is indefensible in a fairly fundamental respect?  Might I suggest that it's a bit of a scandal that the only amicus urging affirmance was Americans United?  Where were all the defenders of Free Exercise -- the groups that regularly file briefs on behalf of a nondiscrimination principle in such cases?  I wonder whether this isn't a perfect occasion for an amicus brief (at the en banc stage, say) from a wide-ranging coalition of religious leaders and religion-law scholars, from across the spectrum(spectra?), whose views on Religion Clause issues often radically diverge but who are all in accord on this one . . .  (As in:  "Marsh v. Chambers was a closely divided and hotly contested decision.  Many of us think Marsh was correctly decided; others of us believe that the Court got it wrong; but regardless of our respective views on Marsh, on this much we all agree . . . ")

Any takers?
  ----- Original Message ----- 
  From: Lund, Christopher 
  To: 'Law & Religion issues for Law Academics' 
  Sent: Thursday, April 14, 2005 11:01 PM
  Subject: Simpson v. Chesterfield County


  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. 



              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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