Discrimination Against Wiccans; Simpson v. Chesterfield County

Fri Apr 15 06:12:35 PDT 2005

The entire situation reminds one of Martin Niemöller’s lines about moral
failure:

'First they came for the Communists, but I was not a Communist, so I said
nothing. Then they came for the Social Democrats, but I was not a Social
Democrat, so I did nothing. Then came the trade unionists, but I was not a
trade unionist. And then they came for the Jews, but I was not a Jew, so I
did little. Then when they came for me, there was no one left to stand up
for me.'

Doesn’t the question simply become  --  Who’s next?

Joel L. Sogol

Attorney at Law

811 21st Avenue

Tuscaloosa, Alabama 35401

ph (205- 345-0966)

fx (205)-345-0971

 <mailto:jlsatty at wwisp.com> jlsatty at wwisp.com

Ben Franklin observed that truth wins a fair fight -- which is why we have
evidence rules in U.S. courts.

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, April 15, 2005 7:47 AM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

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, <mailto:cclund at central.uh.edu>  Christopher 

To: 'Law <mailto:religionlaw at lists.ucla.edu>  & 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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