Discrimination Against Wiccans; Simpson v. Chesterfield County

Von Keetch vkeetch at kmclaw.com
Fri Apr 15 16:31:57 PDT 2005


Just let them wait until I get home.  Thanks.
--------------------------
Von Keetch
Sent from my Blackberry Wireless

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu <religionlaw-bounces at lists.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Fri Apr 15 15:16:35 2005
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

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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