American Bar Association Journal

April 29, 2005

Volume 4, Issue 17

WITCHCRAFT NOT WELCOME
County Can Ban Wiccan From Giving Invocation, 4th Circuit Says

BY TERRY CARTER

The 4th U.S. Circuit Court of Appeals has ruled a Virginia county can refuse to let a witch give the invocation at its meetings by limiting the privilege to clergy representing Judeo-Christian monotheism.

Lawyers for Wiccan practitioner Cynthia Simpson planned to file a motion this week asking the full court, based in Richmond, Va., to review the three-judge panel’s decision.

While the U.S. Supreme Court has limited government entanglement with religion in the past, the 4th Circuit’s decision relies heavily on a case in which the high court carved out separate and broader boundaries and guidelines for prayer at legislative gatherings. In that 1983 case, the court ruled there was no violation of the establishment clause when the Nebraska legislature used a Presbyterian minister over a number of years to lead its invocations. Marsh v. Chambers, 463 U.S. 783.

The court said in Marsh that as long as the selection of a particular minister did not stem "from any impermissible motive," it was constitutional. The Marsh opinion also strongly emphasized the long history of prayer in both Congress and the Supreme Court itself.

The 4th Circuit ruled Chesterfield County’s Board of Supervisors did not show impermissible motive in refusing to permit a pantheistic invocation by a Wiccan because its list of clergy who registered to conduct invocations covers a wide spectrum of Judeo-Christian denominations. Simpson v. Chesterfield County Board of Supervisors, No. 04-1045 (April 14). Chesterfield County is in the Richmond suburbs.

"The Judeo-Christian tradition is, after all, not a single faith but an umbrella covering many faiths," Judge J. Harvie Wilkinson III wrote in the opinion.

Simpson is a leader in the spiritual group Reclaiming Tradition of Wicca and a member of another known as the Broom Riders Association. Her lawyers argue the 4th Circuit wrongfully discriminates among religions.

"A very basic point is that governments cannot make distinctions among their citizens on the basis of religion," says Rebecca Glenberg of the American Civil Liberties Union of Virginia, who argued on behalf of Simpson.

A law professor who has been involved in establishment clause litigation says the full 4th Circuit is not likely to change the ruling. And if it does, Douglas Laycock says, the Supreme Court probably would not take up a case with questions about limiting legislative prayer to Judeo-Christian faiths.

"The court has only so many chips to spend on this issue," says Laycock, a professor at the University of Texas School of Law who believes there should be greater separation of church and state. "They haven’t touched legislative prayer since the Marsh case more than 20 years ago. And it would be immensely unpopular in many parts of the country to let a Wiccan give a prayer. The courts aren’t supposed to follow election returns, though they sometimes seem to do so, and they’re even getting death threats now."

The 4th Circuit opinion carefully builds on precedent that indicates a preference for more mainstream religions.

Legislative invocations "constitute ‘a tolerable acknowledgment of beliefs widely held among the people of this country,’ being as we are ‘a religious people whose institutions presuppose a supreme being,’ " Wilkinson wrote, quoting the Marsh opinion, which itself was in part quoting the 1952 case Zorach v. Clauson, 343 U.S. 306.

After Simpson complained about not being permitted to conduct an invocation, the board of supervisors added rabbis and a Muslim imam to its list of clergy, says Ayesha Khan, legal director for the Washington, D.C.-based Americans United for Separation of Church and State, who also argued the case for Simpson. That "tokenism" wasn’t enough, she says.

"The Marsh case said that if the prayer giver was selected with impermissible motive, then it would be improper," she says. "If the board of supervisors didn’t mean to discriminate, then I don’t know what they did mean. The 4th Circuit gave short shrift to that point."

Simpson had told the board she would drop her complaint if the legislative body discontinued invocations.

"Often what we see is they’ll use lawsuits for censorship," says Steven W. Fitschen, president of the National Legal Foundation, who wrote a friend-of-the-court brief in the Simpson case. The NLF is a Virginia Beach, Va.-based Christian public interest law firm.

Chesterfield County Attorney Steven L. Micas, citing the probability of continuing litigation in the matter, limited his comment to a prepared statement: The "invocation policy was developed shortly after the Supreme Court of the United States established the constitutional ground rules for legislative invocations. Our policy exceeds the inclusiveness standards set by the court."

©2005 ABA Journal