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 prayer." (p.2-3)[1]

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 Wicca. 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 prayers 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, Sikhs, 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 Sikh leader participated in the White House's National Day of Prayer event in May of 2005; in 2000 a Hindu priest offered the opening prayer for the U.S. House of Representatives; two Jain nuns 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 Christianity. 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 "Baptists and Presbyterians were key proponents of religious freedom and disestablishment at the founding ... Baptist 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.'"[2]

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."[3] 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 clergy to avoid invoking the name of Jesus 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 God our Creator,.... the God of Abraham, Isaac and Jacob, The God of Abraham, of Moses, 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 Judaism and Islam, 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 Americans, Hindus, Buddhists, Sikhs, Wiccans, 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 Indian 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.[4] 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.[5]

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 Wiccan 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 Lama 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.

Muslims: Judeo-Christian?

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.

—Grove Harris, Pluralism Project Affiliate