Discrimination Against Wiccans; Simpson v. Chesterfield County

Sat Apr 16 17:51:16 PDT 2005

These people can have prayers on their own behalf in a house of worship.
The constitutional issue arises because they choose to have them in a
public space.  That fact alone points to a violation of the
non-establishment principle.  Furthermore, the prayers offered ARE
intended to influence the religious beliefs/practices of others.
Justice O'Connor refers to this as endorsement.  (And endorsement is a
relatively weak non-establishment standard.  So it must be the case that
under a more rigorous understanding of the non-establishment principle
these prayers are utterly unconstitutional.)

-----Original Message-----
From: West, Ellis [mailto:ewest at richmond.edu] 
Sent: Friday, April 15, 2005 6:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield
County

Aren't these kinds of prayers routinely uttered in Congress, state
legislatures, inaugurations, etc.?  The legislators and public officials
who ask for and authorize these prayers on their own behalf aren't
trying to establish a religion for others or for the nation.  I'm not
arguing that the prayers are constitutional, but simply suggesting that
for anyone to show that they are unconstitutional, s/he must take
account of the fact that this particular "government" involvement with
religion is different from the usual one where the government is indeed
trying to influence, if not control, the religious beliefs/practices of
others.

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 Newsom Michael
	Sent: Friday, April 15, 2005 5:17 PM
	To: Law & Religion issues for Law Academics
	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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