Discrimination Against Wiccans; Simpson v. Chesterfield County

Fri Apr 15 14:16:35 PDT 2005

I can't imagine that it is constitutionally permissible for public
officials to have prayers said for "divine guidance or blessing from the
deity in which they believe."  If that isn't establishment, then the
term has no sensible meaning. 

-----Original Message-----
From: West, Ellis [mailto:ewest at richmond.edu] 
Sent: Friday, April 15, 2005 12:50 PM
To: Law & Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield
County

Although I object (for religious reasons) to public prayers, such as
those before meetings of the Chesterfield County Board of Supervisors,
aren't those of you who consider the Fourth Circuit's decision to be
indefensible or worse overlooking the distinctive nature of this
particular government involvement in religion?  If the primary purpose
or effect of these prayers were the advancement of the Judeo-Christian
"religion" to the exclusion of other religions, then, of course, the
prayers are unconstitutional.  If, however, the reason for these prayers
is because the members of the Board truly want divine guidance or
blessing from the deity in which they believe, the God of the
Judeo-Christian faith, doesn't that require at least that assessments of
their constitutionality take that into account and not simply treat the
prayers as the usual kind of case involving government promotion of
religion?  I realize that many of you probably question the claim that
the reason for the prayers is to secure divine guidance or blessing, but
is that an argument that you can or should try to make in order to show
that the prayers are unconstitutional?  And if the prayers are
constitutional, then why would it be unconstitutional to exclude prayers
to those deities in which members of the Board did not believe? 

Ellis M. West 
Political Science Department 
University of Richmond, VA 23173 
804-289-8536 
ewest at richmond.edu 

	-----Original Message-----
	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of A.E. Brownstein
	Sent: Friday, April 15, 2005 12:07 PM
	To: Law & Religion issues for Law Academics
	Subject: Re: Discrimination Against Wiccans; Simpson v.
Chesterfield County

	I agree that this is an indefensible decision. (I would probably
have described it as shameful, but indefensible will do.) But it does
illustrate the problem with the argument that government may display
religious symbols and sponsor religious activities such as prayer as
long as it does so in a non-discriminatory way and is open to the
messages of all faiths.

	The commitment to pluralism on which this argument depends is
far too often rejected in practice either overtly as in this case or
more indirectly (well, the choir director says, I would include music
from other faiths in the high school concert, but I wasn't able to do so
because (make up your own excuse).

	If anyone is orchestrating the kind of amicus brief Marty
suggests, I would be interested in joining that effort.

	Alan Brownstein
	UC Davis

	At 08:46 AM 4/15/2005 -0400, you wrote:

	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 <mailto:cclund at central.uh.edu> 

	To: 'Law & Religion issues for Law Academics'
<mailto:religionlaw at lists.ucla.edu>  

	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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