Wiccan Invocation: A Canary in the Mineshaft of the United States’ Non-Establishment of Religion (2004)

New 2005 developments in this case are written up in a separate research report, Wiccan Invocation: Update 2005.

In the mining industry, at one time canaries were lowered into mineshafts to test the air quality. If the canary lived, the air was sufficient to support the lives of the workers who then entered the mines. In the United States, cases of Wiccans pursuing religious rights can be seen similarly as canaries, as barometers of the degree of religious freedom available not just to the Wiccans bringing the suits, but to citizens of all religious traditions. Wicca is a diverse earth-based religious tradition that honors nature and the cycles of the seasons. Wiccans celebrate solar holidays such as the solstices, equinoxes and the four midpoints in between, as well as lunar cycles. This religion is one of the fastest-growing in the United States, and it is notable for the leadership of women, concern for the environment, and in some cases for political activism, particularly efforts to counter misunderstanding and stereotyping.

In Chesterfield County, Virginia, USA, a Wiccan priestess has sued for and won her right as a religious leader to offer invocations at her local County Board of Supervisors meetings. On November 13, 2003, the District Court Judge ruled in her favor. Currently, the Board is appealing the decision. This case offers insight into tensions around religious diversity, conflict over definitions of civil religion and governmental establishment of the Judeo-Christian tradition, and the struggle required on local levels to negotiate First Amendment non-establishment concerns.

The Background

Priestess Cynthia Simpson is a leader in the local Chesterfield County group of Reclaiming Witches, incorporated as the Broom Riders Association. This group has received the tax-exempt status afforded religious groups in the United States. Simpson approached the secretary of the Board of Supervisors in the fall of 2002 to request inclusion in the list of religious leaders who are invited to offer invocations at Board meetings. The refusal letter she received stated,

Chesterfield’s non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition. Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities. Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors. (As quoted in her deposition)

After her request was denied, she sued the Board in a case that proceeded throughout 2003 and continues on appeal. The American Civil Liberties Union (ACLU) has taken on the case.

The Case for Summary Dismissal

Both sides argued for summary dismissal. In Simpson’s deposition, she argued that as a religious leader and citizen of the County, she has a right to be included among those offering invocations. She described the derision with which her request was received; two Board members made disparaging comments. “Chairman Kelly Miller termed it a “mockery,” and Supervisor Renny Humphrey made a crack, wondering whether Ms. Simpson was a good witch or a bad witch.” (Richmond Times-Dispatch, October 11, 2002) Simpson argued that the Board inappropriately evaluated theological issues, which are outside of the Board’s purview. The Board privileges Christianity and presumably Judaism, although only one rabbi has offered an invocation in the past four years, as part of a joint invocation with two Christians on January 12, 2000. The Board is establishing those religions as preferred by the government, which is unconstitutional. The First Amendment of the United States Constitution clearly states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. “

The Board’s Argument

The Board argued that “their practice of inviting all monotheistic religious leaders with congregations in the County is more inclusive than the practice approved” (Deposition, p.5) in the legal precedent of the 1983 Marsh v. Chambers (463 U.S. 783) case. This case involved a legislative body in Nebraska that hired a particular minister (a Presbyterian) to offer prayers over a sixteen-year period. This was not found to be unconstitutional because the individual was chosen, not the specific religious tradition. The Board argued,

Not only is the American civil religion monotheistic, but, as the Marsh Court recognized, its monotheism is consistent with the Judeo-Christian concept of divinity. Marsh … upheld recognition of a monotheistic divinity [and] upheld practices that are consistent with Judeo-Christian religious practices, such as belief in a rational God, belief in a Sabbath or day of rest, and recognition of Christian holidays. … In contrast to the American civil religion, Wicca is polytheistic and pantheistic. (10)

According to the Board’s version of American civil religion, Islam can be included because it can be seen as consistent with American civil religion, but Wicca is determined to be inconsistent and therefore excluded.

The Board concluded that

Twenty years ago in Marsh v. Chambers the United States Supreme Court determined that the practice of legislative bodies receiving non-sectarian, monotheistic invocations that are in the tradition of the American civil religion does not violate the First Amendment. In this case, Simpson asks this court to abandon Marsh and the numerous other cases which affirm the propriety of governmental recognition of the American civil religion and either create a new civil religion which includes all movements and beliefs that can qualify as religions or abolish the American civil religion and prohibit legislative bodies from receiving invocations altogether. Neither Marsh nor the other federal cases supporting the American civil religion permits or requires such a reversal of judicial precedent or historic legislative practice concerning invocations. (18-19, emphasis added)

Expert Testimony in the Case for Dismissal

The Pluralism Project became involved in this case in the spring of 2003 when the Virginia ACLU contacted the Project for expert testimony. Dr. Diana Eck submitted testimony arguing that the Board’s conception of “American civil religion” excludes not only Wiccans, but practitioners of Afro-Caribbean traditions such as Santeria, Vodou, Condomble and Rastafarianism, Buddhists who are not theists, Hindus whose religion can be seen as honoring 300 million gods , and Native Americans whose practices may well incorporate Christianity into a wide diversity of traditional tribal ways. The Baha’i faith, Jainism, Sikhism, Shinto, Taoism and Zoroastrianism are all religions espoused by American citizens. Atheism, agnosticism and a wide range of non-beliefs are also part of the American religious landscape, excluded from the Chesterfield County Board of Supervisors’ notion of “American civil religion.”

Dr. Eck‘s testimony offered examples of the religious diversity that is now included within the realm of ceremonial religious expression in the United States, and provided evidence for a broader definition of “American civil religion.” On September 14, 2000, a Hindu invocation opened a session of the U.S. House of Representatives, offered by a priest of the Shiva-Vishnu Temple in Cleveland. “At the State level, there has been a Hindu invocation in the Michigan State Legislature, a Buddhist invocation in the California State Legislature, a Jain prayer in the Ohio State Legislature, and Native American prayer and the lighting of sage in the Montana State Legislature.”(6) A Wiccan offered an invocation to the Dallas City Council in 2000.

The U. S. Armed Services serves as an example of defenders of the non-establishment clause of the Constitution. When faced with controversy over Wiccan rituals held on a Texan army base, Captain Ross Gunther of the Armed Forces Chaplain’s Board said, “the Department of Defense does not evaluate, judge, or officially sanction any religious faith. It is not up to us to judge religions or to make a list of denominations or religious groups that are officially acceptable.”

Dr. Eck argued that

Keeping a list of acceptable religious groups and their clergy for public use and refusing the legitimate request to be included on this list may well be construed as an establishment of acceptable religion and may perpetuate forms of religious prejudice and discrimination. (7)

Court Findings

On November 13, 2003, the court found that Wicca is a valid religion for constitutional protection, the Board’s policy is in violation of the Establishment clause, and Simpson must be included:

[W]hat ever one may think of a group that calls its local chapter the Broom Riders Association, Wicca has been recognized as a religion in this federal judicial circuit and elsewhere on the basis that it “occupies a place in the lives of its members ‘parallel to that filled by the orthodox belief in God in religions more widely accepted in the United States. … Accordingly, where Wicca is recognized as a valid religion, the policy, in its present form, must be viewed as violative of the Establishment clause because of its preference for certain other faiths. (21)

The applicability of the Marsh case was questioned, and issues of permissible motive were raised by the court. The court concluded that even with a “mercurial” (28) body of case law and extraordinary circumstances in the U.S. such as a chief justice of a state Supreme Court defying judicial authority and refusing to remove a monument of the Ten Commandments from his courtroom, there are principles that remain clear.

If the Establishment Clause means anything, it means that government is not to demonstrate any preference for one set of religious beliefs over another, or for that matter, over the lack of any religious belief. … Here, Plaintiff is a representative of an acknowledged, albeit minority religion. Nevertheless, she stood prepared to offer an invocation consistent with the only guidelines government could constitutionally command under the circumstances. She was presumptively excluded because of a stated governmental preference for a different set of religious beliefs and viewpoint, albeit the beliefs of a large segment- if not the majority – of the population. Such a policy of exclusion cannot survive constitutional scrutiny. (29)

The Pending Appeal

The Board is appealing the decision, arguing that the invocation that Ms. Simpson would offer would not fulfill the function of an invocation in that she would not appeal to a supreme deity. The Board also emphasizes the 200 year history of American civil religious practice, as well as re-iterating the precedent set in Marsh, which included dissenting opinion about religious diversity that did not sway the court twenty years ago. Nor should it now, the Board argues. Simpson counters that the discriminatory policy is unconstitutional under the Establishment clause, she has been denied equal protection, and this official favoring of the Judeo-Christian tradition violates her rights. The decision should be delivered in the fall of 2004.

Canary in the Mineshaft

While the rights of a Wiccan priestess, also known as a Witch, may not be dear to the hearts of most Americans, the rights of these minority religious practitioners offer a potent test of the lived experience of religious freedom available in practice in the United States. For Wiccans, the struggle for this freedom involves credentializing themselves as a religion in the first place, overcoming misconception and ridicule in the second place, and arguing for equal inclusion in civil realms in the third place. This offers a barometer of the freedom available to all citizens. Indeed, Wiccans can be seen as canaries in a mineshaft, testing the quality of the non-establishment of religion by the government.

This case highlights an interpretation of historical tradition coming into friction with the reality of religious diversity. Both sides are arguing for their conformity to the highest principles, one of traditional bonds and a majority-driven functional commonality, the other of protected freedoms for the minority that serve the majority and are foundational to the commonwealth. As far back as 1967, Robert Bellah offered the possibility of American civil religion becoming one part of a new civil religion of the world, which “would draw on religious traditions beyond the sphere of Biblical religion alone.” (18) Since immigration has brought the world to America, that possibility is a domestic one, which may well have global repercussions.

— Grove Harris, Pluralism Project Affiliate

Bellah, Robert N. “Civil Religion in America.” Daedalus 96 (1967): 1-21.
Bellah, Robert N. Habits of the Heart: Individualism and Commitment in American Life. Berkeley, CA. University of California Press, 1996.
Bellah, Robert N. Comment, Sociological Analysis 1989, 50:2 147.
Hicks, Douglas A. Religion and the Workplace: Pluralism, Spirituality, Leadership. Cambridge: Cambridge University Press, 2003.
Mathisen, James A. “Twenty Years After Bellah: What ever Happened to American Civil Religion?” Sociological Analysis 1989, 50:2 129-146.

Data on Invocations

  • In 2000, all the sessions were opened by Christian men, with the exception of January 12 where a male Christian Pastor was joined by a female Christian Reverend and a male Rabbi.
  • In 2001, 6 of 19 invocations were offered by women, with one Muslim participating in a four-person effort.
  • In 2002, 2 of 16 invocations were lead by women. In 2003, 4 of the 18 invocations were lead by women, and one was lead by a Muslim man.
  • 2000 – 1 woman, 17 men, one rabbi as one of three on January 12
  • 2001 – 6 women, 16 men, one Muslim as one of four on September 26, Imam
  • 2002 – 2 women, 16 men
  • 2003 – 4 women, 14 men, one Muslim as a solo presenter, President
  • Over 4 years, 13 women and 63 men offered invocations for 71 sessions. A few individuals are double counted, presenting twice.