This report continues the work presented in Wiccan Invocation: A Canary in the Mineshaft of the United States’ Non-Establishment of Religion (2004).
The County Wins on Appeal
The three-judge panel from the Fourth Circuit Court found that, since the local government’s policy does not “‘proselytize or advance any one, or disparage any other, faith or belief’, Marsh v. Chambers, 463 U.S. 783, 794-95 (1983), we believe it fits within the Supreme Court’s requirements for legislative prayerPrayer is the vocal or silent address to the Divine. It may consist of fixed words, spontaneous words, or rest in silence with no words at all. Some forms of prayer are accompanied with specific postures or gestures, while others are not..” (p.2-3)
This ruling has reversed the earlier U.S. District court ruling. That ruling found that the County’s exclusion of Ms. Simpson from the pool of religious leaders eligible to give invocations was unconstitutional, coming from a stated preference for other religious traditions to the exclusion of Ms. Simpson’s tradition of WiccaWicca is the name of one of the major streams of contemporary American Paganism. It is a form of religious witchcraft, sometimes simply called the Craft. Many Wiccans in America today call themselves “witches,” claiming the name under which women and .... This new ruling has found that it is acceptable to bar Ms. Simpson from offering invocations. They argue that the invocations opening the Chesterfield County Board of Supervisors meetings are directed only at the board, and “when a governmental body engages in prayer for itself and does not impose that prayer on the people, the governmental body is given greater latitude than when the government imposes prayer on the people. (p.19) Thus, “the religious liberties secured to the people by the First Amendment are not directly implicated … and a governmental body may select and say nondenominational prayersPrayer is the vocal or silent address to the Divine. It may consist of fixed words, spontaneous words, or rest in silence with no words at all. Some forms of prayer are accompanied with specific postures or gestures, while others are not. for the purpose and benefit of that body so long as the prayers do not ‘proselytize or advance any one, or … disparage any other, faith or belief.’ 463 U.S. at 794-95; cf. Rust v. Sullivan, 500 U.S,. 173, 192-200 (1991) (holding that the government may control the content of its speech.)” (p.19-20.)
The judges found that the Chesterfield County Board of Supervisors “engages in prayer for itself and not for the people. As one of the supervisors testified: The purpose of an invocation is for the board members to invoke God’s blessing upon our organization, upon our meetings, and that is my understanding as to what the board’s purpose is, is to serve the board, not the individual. … [I]t’s to have God’s blessing invoked on sometimes very contentious hearings, It’s for our benefit.. (Emphasis added)” (p.21)
Thus, the Opinion concludes, “Because the prayers received and used by the Chesterfield County Board of Supervisors were for the Board alone – to invoke God’s blessing upon that organization – under Marsh, the Board’s selection and use of prayer did not amount to ‘an establishment’ of religion or a step toward establishment’ Id. (p. 21)
Even if legislative prayer is held to a different standard than prayer that is deemed for the people, it is important to note that legislative prayers have been offered in governmental settings by Hindus, SikhsSikhs call their tradition the “Sikh Panth,” meaning the “community (panth) of the disciples of the Guru.” The tradition reveres a lineage of ten Gurus, beginning with Guru Nanak in the 16th century and coming to a clos. with the death of Guru Gob..., Jains, and other members of minority religious traditions. It is notable that sometimes local settings lag behind national settings in their willingness to include minorities. For example, a SikhSikhs call their tradition the “Sikh Panth,” meaning the “community (panth) of the disciples of the Guru.” The tradition reveres a lineage of ten Gurus, beginning with Guru Nanak in the 16th century and coming to a clos. with the death of Guru Gob... leader participated in the White House’s National Day of Prayer event in May of 2005; in 2000 a Hindu priestA priest is the leader of a religious community or congregation, specially trained and often ordained to service, who leads members of the community in the rituals and practice of shared and individual life. Many traditions have forms of priesthood.In the... offered the opening prayer for the U.S. House of Representatives; two Jain nunsA nun is a woman who renounces worldly life and is ordinarily a member of a monastic order or community, thereby undertaking a special commitment to study, service, asceticism, prayer, or disciplined spiritual practice. In the Buddhist tradition, fully or... gave an opening prayer at the Ohio Senate in 2001; and the first Muslim invocation in a US governmental setting was at the House of Representatives in 1991. It would seem that religious freedom for all would mean that all religions could participate and serve in the realm of legislative offerings, but that is at issue with this ruling.
It is only in recent years that the protection of minority religions has been reconceptualized as protection for those religions that are outside of ChristianityChristianity is the religious tradition of Christians: those who confesses faith in Jesus Christ, follow the path Christ taught, and gather together in the community of the church.. Originally it was factional struggles within Christianity that gave rise to the First Amendment. In lawyer Thomas C. Berg’s article entitled “Minority Religions and the Religion Clauses,” he writes “BaptistsThe Baptist tradition includes a variety of Christian churches which trace their beginnings to the Anabaptist reform movement that rejected infant baptism insisting on the importance of baptizing only those who are able to profess the faith as believers. and PresbyteriansPresbyterian is the general name for churches governed by elected presbyters or elders and refers especially to Reformed churches in Scotland and England that shaped Presbyterian churches worldwide. The church is distinguished both from those in which aut... were key proponents of religious freedom and disestablishment at the founding … BaptistThe Baptist tradition includes a variety of Christian churches which trace their beginnings to the Anabaptist reform movement that rejected infant baptism insisting on the importance of baptizing only those who are able to profess the faith as believers. leaders, such as Isaac Backus in Massachusetts and John Leland in Virginia, took the lead in calling for an amendment guaranteeing religious freedom against the federal government. (n70) Their voting power in James Madison’s congressional district undoubtedly helped prod Madison to introduce what became the First Amendment. (n71) The original understanding of the Religion Clauses is a complicated matter, but the clauses grew in significant part out of a concern that the new federal government might impose on religious minorities. During the congressional debates, Madison explained that his proposal was based on the fear not only that one single sect ‘might obtain pre-eminence, ‘ but also that ‘two [might} combine together, and establish a religion to which they would compel others,’ presumably thereby the minority, ‘to conform.'”
Berg writes that Baptists, who were openly disdainful of established religion and upper class mores, were reviled and subject to mob violence, and they were clearly in the minority. “Baptists made up 15 percent of religious congregations in New England in 1776 compared with Congregationalists’ 63 percent.” The Presbyterians were also outsiders, dismissed as fanatics. The ability to dismiss others is based upon social and/or political power, and at times is based on informed disdain, sometimes upon ignorance, sometimes upon projection, and sometimes upon the power to completely ignore a different perspective. The desire to dismiss others can sometimes intensify with proximity; those who are abdicating a formerly shared position can be perceived as more of a threat than those with a more tolerably different, perhaps “exotic” position. Theoretical considerations of the mechanisms of othering and dismissal need to be noted; the delineations of insider and outsider made by this court decision run counter to the intentions of the First Amendment and to the legacy of Christian civic participation.
It is important to remember that the divisions within Christianity were (and sometimes still are) highly contentious, with those with majority or insider status dismissing other factions. The First Amendment was originally seen as a needed protection for those within the Christian faith with minority expressions. The court recognizes Christian factions in their instruction that the prayer be non-denominational, but the decision does not uphold the underlying principle of non-establishment of religion.
Wynne v. Town of Great Falls
The court distinguishes this case from that of Wynne v. Town of Great Falls, where the panel “struck down a uniquely Christian legislative prayer designed for and participated in by the people. 376 F.3d at 302.” In the Simpson V. Chesterfield appeal decision, the court found that the Chesterfield board had not been exclusive as in the Wynne case. The extension of invitations had been sufficiently broad in including Muslim, Jewish, and Christians as eligible religious leaders.
In fact, of the 36 single invocations between June 20, 2001 and April 23, 2003 for which I was able to obtain the transcripts, all (100%) were in the Christian tradition and 27 (75%) were explicitly in Jesus’ name. Earlier, in 2000, one session had three people offering the invocation, one of whom was a Jew. In 2001, one session had four people offering the invocation, one of whom was a Muslim. After this court case had begun, in 2003, one solo invocation was offered by a Muslim. Prior to that, I have no evidence of an invocation being entrusted completely to someone who was not Christian.
Since the litigation began, the County has revised its invitation letter asking clergyClergy are the body of ordained men (and in some cases women) who are authorized to perform the priestly, pastoral, or rabbinical duties of the community—as distinct from the laity whom they serve. to avoid invoking the name of JesusJesus is the historical figure considered by Christians to be the Christ, the Messiah, whose life and teachings, death and resurrection give clear evidence of God’s love for humankind. Jesus was born shortly before the death of Herod the Great (d. 4 BCE... Christ. Given this recent change, the Court of Appeals found that the board is “seeking to avoid the slightest hint of sectarianism” despite its prior custom. Later they write “In fact, Chesterfield has aspired to non-sectarianism and requested that invocations refrain from using Christ’s name, or for that matter, any denominational appeal…..” The fact that the County made this change only after the case had been brought to court was deemed irrelevant by the court.
The Court writes, “Reflecting the effort to include diverse religious creeds, Chesterfield has had a wide variety of prayers, the richness of which is quite revealing. Clerics from multiple faiths and traditions have described divinity in wide and embracive terms- Lord GodGod is a term used to refer to the Divine, the Supreme being, Transcendent deity, or Ultimate reality. our Creator,…. the GodThe term god with a small “g” is used to refer to a deity or class of deities whose power is understood to be circumscribed or localized rather than universal, or to refer to a plurality of deities. of AbrahamAbraham is the patriarch, acknowledged as the father of the lineage of faith by the Jewish, Christian, and Islamic traditions. He is presumed to have lived sometime in the period 2000-1700 BCE. He is the father of Isaac by Sarah (Genesis 12.25), and the "..., Isaac and Jacob, The God of Abraham, of MosesMoses was the great Biblical prophet who is credited with leading the people of Israel out of Egyptian bondage and teaching them the divine laws at Sinai. The story of Moses is told in the book of Exodus in the Bible and is also told in the Qur’an, wher..., Jesus, and Mohammed, Heavenly Father, Lord of Lords, King of Kings” (11) Here, the Court is undertaking some theological evaluation that could benefit from fuller argumentation. These terms are Christian, and occasionally inclusive of JudaismJudaism is the worldview, the way of life, and the religious practice of the Jewish people, living in covenant with God and in response to Torah, the laws and ethics which guide the pattern of Jewish life. Jews today interpret their three thousand year ol... and IslamIslam in Arabic literally means “submitting” or “submission.” One who submits or surrenders his or her will to God is called a Muslim. While the whole of God’s creation is described as being inherently Muslim, human beings must choose whether to..., framed in patriarchal religious tradition.
Petition to the Supreme Court
The American Civil Liberties Union has filed their intention to request a further hearing; please see their petition to the Supreme Court. The petition asserts that the Fourth Circuit’s interpretation undeniably favors some religions over others. Chesterfield County government is not neutral. “It issues invitations to deliver prayers to all Christian, Muslim, and Jewish religious leaders in the County. It refuses to issue invitations to Native AmericansEach of the many Native American nations has its own distinctive life-ways, although there are some widely-shared characteristics. most Native life-ways are primarily transmitted through oral traditions; they are oriented toward living in relation to a sp..., Hindus, Buddhists, Sikhs, WiccansWicca is the name of one of the major streams of contemporary American Paganism. It is a form of religious witchcraft, sometimes simply called the Craft. Many Wiccans in America today call themselves “witches,” claiming the name under which women and ..., or members of any other religion. A clearer demonstration of official preference for some religions over others could hardly be imagined…Indeed, the Fourth Circuit’s decision may represent the first occasion in which a federal appellate court has approved a policy that explicitly positions the members of some religions as “insiders,” while making “outsiders” of persons from disfavored faiths.”(p.8) They argue that the “Marsh Court approved the Nebraska legislative prayers only because the legislature did NOT demonstrate a preference for one religion over another.” (p.9) Through an impermissible motive, Chesterfield County has, “through the selection of its prayer-givers, officially sanctioned ‘Judeo-Christian monotheism.’” (p.12)
HAF Amicus Brief
The Hindu American Foundation (HAF), the Buddhist Peace Fellowship, the Association on American IndianEach of the many Native American nations has its own distinctive life-ways, although there are some widely-shared characteristics. most Native life-ways are primarily transmitted through oral traditions; they are oriented toward living in relation to a sp... Affairs and the Interfaith Alliance have filed an Amicus Brief in support of the petition to the Supreme Court. The HAF is supported in this endeavor by a number of other prominent Hindu and Jain organizations. This collective organizing, across linguistic and other divides, seems to be a new development in the Hindu community in the U.S. The HAF claims to be the first Hindu American group to file an Amicus Brief (in 2004), and their efforts represent new organized political advocacy from that community. Organized in 2003, they have worked on a number of political fronts. Part of their challenge is to offer a unified voice from a religious community that is tremendously diverse.
The Amicus Brief argues that adherents of non-Judeo-Christian religions have a direct interest in the case, which is of course true. Their concern is the ability of these minority religious groups to take full part in American civic life. I contend further that the quality of religious freedom for all, including Christians of every denomination, Jews, and Muslims, is diminished when the rights of certain minorities are diminished.
The Amicus Brief extends the case beyond the context of the refusal given to a WiccanWicca is the name of one of the major streams of contemporary American Paganism. It is a form of religious witchcraft, sometimes simply called the Craft. Many Wiccans in America today call themselves “witches,” claiming the name under which women and ... practitioner, and explores the implications for Hindus, Buddhists, Native Americans, and for Muslims. The issue of a local governmental body taking it upon itself to determine theological stances of religious traditions is addressed. The irony of the idea of someone of the international stature and esteem of the Dalai LamaDalai is Mongolian for “ocean” and lama is the Tibetan word for “superior,” especially referring to those of superior spiritual attainment. Together the two terms constitute the title conferred upon the head monk of the Gelug school of Tibetan Bud... being refused the opportunity to offer an invocation (should he live in the area) because he is a Buddhist highlights the inappropriateness of the restriction to a varyingly conceived “Judeo-Christian tradition.” This formulation also excludes Native Americans, the original inhabitants of the area.
The brief questions the inclusion of Muslims in the category of “Judeo-Christian” religion, writing “Many adherents of Islam no doubt would be surprised to learn that a government has deemed their beliefs to be consistent with the “Judeo-Christian tradition” and they note that the two lower court decisions are inconsistent on this point.
It is debatable whether the track record of the County Board of Supervisors shows a clear effort to broaden the category of eligible religious leadership; on only one occasion was a Muslim leader invited to give the invocation as a single leader, according to data going back to 2001. Both other occasions had the Muslim participation as part of joint prayer, as was the case with Jewish participation as well.
Derision of Wicca
The brief brings up the derisive comments of Board members towards Wicca that were also cited in the ACLU arguments before the lower court. In both cases, the ridicule expressed towards Wicca in statements such as is she a good witch or a bad witch and her religion being considered a “mockery” are brought up as evidence of inappropriate discrimination. Here we have a specific location for instances of ridicule that are prevalent in this country. During recent years’ discussion of issues around school prayer, the standard extreme worst-case example and joke was that of witches offering school prayers. The position of Wicca is not simply that of an unknown religion, but one with much misunderstanding and prejudice to overcome as an initial hurdle. Many members of minority religions also face the burden of racism which can comingle with oppression due to religious discrimination. It is important to recognize the entrenched prejudice against this minority religion, as well as the additional oppressions endured by other minority religions, when examining the dynamics of their religious freedom, or lack thereof.
Update: Supreme Court Will Not Hear This Case
On October 11, 2005 it became known that the Supreme Court will not hear this case. Only about 1% of all petitions to the Supreme Court are actually heard, and this does not reflect on the integrity of the petition. The issues will not go away, and it is possible that the Supreme Court might hear a related case when additional circuits are involved in controversial rulings. The recent Supreme Court ruling on the pair of 10 Commandments cases expressed both the inappropriateness of Christian influence in the courtroom and respect for the historical legacy of Christianity in the country. The issues around public invocations in governmental settings are being addressed in lower courts in a number of places; in 2005 alone these include Modesto, (CA), Escondido City, (CA), Great Falls, (SC), as well as Chesterfield County (VA).
The Supreme Court is one body that adjudicates for the rights of citizens and upholds the Constitution, but it is not infallible and is often part of historic shifts and changes over time. Other factors are involved in the shifting of the social fabric, and a peaceable resolution to the conflict in Chesterfield County could be increased with more participation from diverse religious perspectives. Is the room for Jewish participation substantial? Only one Jewish leader has offered an invocation, and that was as part of a panel of three. This is less participation than that of the Muslim community, and it is worth questioning how much inclusion Jews feel in the categorization “Judeo-Christian.” In a recent controversy over National Day of Prayer activities in Troy, Michigan, the lack of Jewish inclusion was pointed out to reveal that the organizing group was exclusively Christian and planning an exclusively Christian event.
Where the interfaith community is in regards to this case? National Interfaith participation by Wiccans is strong, with prominent participation in the United Religions Initiative, the Council for the Parliament of World Religions, and more. Local participation for and from Wiccans varies widely, from being excluded to being sought out. In Richmond, Virginia, near to Chesterfield County, the local interfaith group, established in 1927, recently clarified its bylaws to exclude Wiccans, Scientologists, and other groups whose inclusion would be divisive for the current membership.
The refusal of the Supreme Court to hear this petition does not solve the public disagreement over this issue; the court of public opinion will still be divided. Open discussion within the County could have an ameliorating effect. Indeed, either side “winning” any court battle would not assure a strengthened social understanding of the issues involved. Public education on the underlying issues is required, so that people may come together as citizens and protect larger civic interests in religious freedom for all, instead of being swayed by the desire to judge and exclude leaders and members of an unfamiliar religion.
—GroveSacred groves have historically been among the most important sites for Pagan worship. In Druidism, trees are thought to have specific attributes that contribute meaning to the site where they grow. Contemporary Druid groups are often called “groves.”... Harris, Pluralism Project Affiliate
 References to the opinion of the Circuit Judges Wilkinson, Niemeyer and Williams, of the United States Court of Appeals for the Fourth Circuit are cited from the .pdf document made available online by the United States Courts of Appeal, Forth Circuit. http://www.ca4.uscourts.gov/Opinions/Published/041045.P.pdf ↩︎
 Thomas Berg, “Minority Religions and the Religion Clauses,” Washington University Law Quarterly, Fall, 2004, p. 933-934 (according to online page indicators from web version.)↩︎
 op cit, Footnote 64 citing Roger Finke and Rodney Stark, The Churching of America 1776-1990.↩︎
 The Hindu American Foundation Website, http://www.hinduamericanfoundation.org/Content/Achievements/media_press_release_publicprayercase.html, viewed 10/5/2005.↩︎
 Pluralism Project Research Report http://www.pluralism.org/research/profiles/display.php?profile=74103, viewed 10/5/2005.↩︎