Discrimination Against Wiccans; Simpson v. Chesterfield County

Fri Apr 15 06:34:05 PDT 2005

I am not quite sure why Marty thinks this Fourth Circuit decision
(Chesterfield) is "indefensible in a fairly fundamental respect" after
his attack (last summer on this list serve) on a Fourth Circuit
decision requiring a school district to distribute fliers regarding
meetings of Child Evangelism Fellowship on the same basis that it
distributed fliers for over 200 other community organizations. I don't
understand how Marty reconciles his criticism of the Chesterfield
decision (for not requiring equal treatment among community speakers)
with his criticism of the Montgomery County Public Schools decision
(for requiring equal treatment among community speakers).

Indeed, it seems to me that it is arguably more defensible for the
government to pick and choose among religions when the government is
providing a forum for only one speaker at a time in a context in which
many observers could reasonably view the speech as having government
approval (which Marsh seems to allow whether or not it makes sense in
the overall Establishment Clause context).  It seems to me completely
indefensible for the government to distribute fliers for hundreds of
community groups, including many different religious groups, and then
refuse to distribute the fliers of a group whose views it deems
"evangelical" or "proselytizing" (even though the fliers were purely
informational about where and when the meetings were held).

Disclaimer:  I am co-counsel for Child Evangelism Fellowship in the
Montgomery County Public Schools case.

Kim Colby

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty
Lederman
Sent: Friday, April 15, 2005 8:47 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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