Discrimination Against Wiccans; Simpson v. Chesterfield Count y

Fri Apr 15 11:38:04 PDT 2005

            I think it's important not to get sidetracked.  Yes, some of
those supporting Simpson opposed Child Evangelism Fellowship's claim in the
Montgomery County Public Schools case.  Maybe that's inconsistent, maybe
not.  But if your point proves anything, it proves that supporters of Child
Evangelism Fellowship should be even more supportive of Simpson's claim than
CEF's opponents.  In a way, Simpson and CEF are kindred souls; they both are
examples of dissenting religious voices being screened out by government. 

            Look, in my mind, the most admirable voices who have fought for
"religion in the public square" (whatever that means) have done so because
they want to see religious voices being treated fairly, equally, with other
voices.  Instead of stripping religion from the square, they want it to be a
place where people from all faiths can gather.  But there always has been a
recognition that this magnifies the need for the government to play no
favorites.  Judge McConnell, reacting against cases like Allegheny County,
once put it like this:

 "If members of minority religions (or other cultural groups) feel excluded
by government symbols or speech, the best solution is to request fair
treatment of alternative traditions, rather than censorship of more
mainstream symbols. If a government refuses to cooperate with minority
religious (and other cultural) groups within the community, there may be a
basis for inferring that the choice of symbols was a deliberate attempt to
use government influence to promote a particular religious position.  Courts
should not encourage the proliferation of litigation by offering the false
hope that perfect neutrality can be achieved . . . [But] certainly they
should not allow official acts that declare one religion, or group of
religions, superior to the rest."  Michael McConnell, Religious Freedom at a
Crossroads, 59 U. Chi. L. Rev. 115, 193-94 (1992).

This is Simpson, right?  She feels excluded by government speech.  She asks
for fair treatment for her alternative tradition rather than censorship.
The government refuses to cooperate, explaining that it has declared the
Judeo-Christian tradition superior to hers.  

This case has got to be a case that most groups, left to right, can agree is
wrongly decided.  Americans United will surely be writing petitions for en
banc review and certiorari - surely groups from across the spectrum should
get involved.  

Chris     

-----Original Message-----
From: Kim Colby [mailto:kcolby at clsnet.org] 
Sent: Friday, April 15, 2005 8:34 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

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
<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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