RE: Discrimination Against Wiccans; Simpson v. Chesterfield Count y

[A.E. Brownstein]

I was going to express similar thoughts, but Tom sent his post first (and 
probably did a better job in expressing this analysis than I would have.) 
County boards, city councils, school boards and the like conduct 
interactive sessions. The public addresses the board directly. On some 
occasions, the board will operate as an administrative tribunal rather than 
a legislature. Prayers are typically addressed not to the board members 
alone, but to the entire audience and everyone is expected to stand. Anyone 
bringing a matter to the board who decides to leave or refuse to stand 
through the prayer does so at their peril. Whatever one thinks of Marsh, 
this is an entirely different context.

In a governmental meeting to which the public is invited as participants 
and petitioners, there is an especially strong reason for holding public 
prayer to be unconstitutional. To the extent that it is permitted at all, 
decisions about the nature of the prayer and the individuals selected to 
offer it should be as inclusive as possible and reflect the religious 
diversity of the community.

Alan Brownstein
UC Davis


At 06:10 PM 4/15/2005 -0500, you wrote:
The Marsh opinion justified legislative prayer on the basis of a very crude
version of a historical argument -- the first Congress did this, and it's
been done consistently since -- not really on the basis of a coherent,
generalizable analytical principle such as "it's just solemnization" or
"it's just a personal act by the legislators, not directed at the public."
For that reason, it's difficult to know how to apply Marsh in a principled
or convincing way, as I think this decision dramatizes.
With respect to the "it's just for the legislators, not directed at the
public" rationale, I have more trouble accepting it in this kind of case
than in Marsh.  At a county board meeting, unlike a session of Congress,
regular citizens often must attend in order to present some kind of proposal
or petition to the board:  so they have to listen to the prayer (and
probably refrain from walking out on it, so as not to offend the board
members).  And if the prayer is really just for the board members, then
since there's typically only a few of them (again unlike Congress), they
could have it together before entering the room and starting the public
meeting.  Finally, if the prayer is truly just the board members personally
asking for guidance together, then they ought to be able to have a highly
"sectarian" prayer if they all agree on it, rather than being constrained by
the "nonsectarian monotheism" requirement that the Fourth Circuit has set
forth in its cases.
Tom Berg, University of St. Thomas (Minnesota)
  _
From: David Cruz [mailto:[EMAIL PROTECTED]
Sent: Fri 4/15/2005 1:13 PM
To: Law & Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

On Fri, 15 Apr 2005, West, Ellis wrote:
> [snip]  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, [snip]
Does that count as a *secular* purpose??  I thought legislative prayers
were typically justified on solemnization rationale.
David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.
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Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Von Keetch]

Title: Re: Discrimination Against Wiccans; Simpson v. Chesterfield County






My apologies to the list for sending the previous email.  Sometimes my Blackberry gets the better of me.
--
Von Keetch
Sent from my Blackberry Wireless

-Original Message-
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: religionlaw@lists.ucla.edu 
Sent: Fri Apr 15 17:31:57 2005
Subject: Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

Just let them wait until I get home.  Thanks.
--
Von Keetch
Sent from my Blackberry Wireless

-Original Message-
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics 
Sent: Fri Apr 15 15:16:35 2005
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

I canât imagine that it is constitutionally permissible for public officials to have prayers said for âdivine guidance or blessing from the deity in which they believe.â  If that isnât establishment, then the term has no sensible meaning.



-Original Message-
From: West, Ellis [mailto:[EMAIL PROTECTED]]
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
[EMAIL PROTECTED]

    -Original Message-
    From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] 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 Relig

Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Von Keetch]

Title: Re: Discrimination Against Wiccans; Simpson v. Chesterfield County






Just let them wait until I get home.  Thanks.
--
Von Keetch
Sent from my Blackberry Wireless

-Original Message-
From: [EMAIL PROTECTED] <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics 
Sent: Fri Apr 15 15:16:35 2005
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

I canât imagine that it is constitutionally permissible for public officials to have prayers said for âdivine guidance or blessing from the deity in which they believe.â  If that isnât establishment, then the term has no sensible meaning.



-Original Message-
From: West, Ellis [mailto:[EMAIL PROTECTED]]
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
[EMAIL PROTECTED]

    -Original Message-
    From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] 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?

    -

RE: Discrimination Against Wiccans; Simpson v. Chesterfield Count y

[Berg, Thomas C.]

The Marsh opinion justified legislative prayer on the basis of a very crude
version of a historical argument -- the first Congress did this, and it's
been done consistently since -- not really on the basis of a coherent,
generalizable analytical principle such as "it's just solemnization" or
"it's just a personal act by the legislators, not directed at the public."
For that reason, it's difficult to know how to apply Marsh in a principled
or convincing way, as I think this decision dramatizes.
 
With respect to the "it's just for the legislators, not directed at the
public" rationale, I have more trouble accepting it in this kind of case
than in Marsh.  At a county board meeting, unlike a session of Congress,
regular citizens often must attend in order to present some kind of proposal
or petition to the board:  so they have to listen to the prayer (and
probably refrain from walking out on it, so as not to offend the board
members).  And if the prayer is really just for the board members, then
since there's typically only a few of them (again unlike Congress), they
could have it together before entering the room and starting the public
meeting.  Finally, if the prayer is truly just the board members personally
asking for guidance together, then they ought to be able to have a highly
"sectarian" prayer if they all agree on it, rather than being constrained by
the "nonsectarian monotheism" requirement that the Fourth Circuit has set
forth in its cases.
 
Tom Berg, University of St. Thomas (Minnesota)
 

  _  

From: David Cruz [mailto:[EMAIL PROTECTED]
Sent: Fri 4/15/2005 1:13 PM
To: Law & Religion issues for Law Academics
Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County



On Fri, 15 Apr 2005, West, Ellis wrote: 

> [snip]  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, [snip] 

Does that count as a *secular* purpose??  I thought legislative prayers 
were typically justified on solemnization rationale. 

David B. Cruz 
Professor of Law 
University of Southern California Law School 
Los Angeles, CA 90089-0071 
U.S.A. 

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RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[West, Ellis]

Title: Message



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 [EMAIL PROTECTED] 


  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Newsom MichaelSent: Friday, April 15, 2005 5:17 
  PMTo: Law & Religion issues for Law 
  AcademicsSubject: 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:[EMAIL PROTECTED] Sent: Friday, April 15, 2005 12:50 
  PMTo: Law & Religion 
  issues for Law AcademicsSubject: 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 
  [EMAIL PROTECTED] 
  
  
-Original 
Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. 
BrownsteinSent: Friday, 
April 15, 2005 12:07 PMTo: 
Law & Religion issues for Law AcademicsSubject: 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 BrownsteinUC DavisAt 
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

RE: Religion-only accommodation question

[Anthony Picarello]

I notice that your response contains no reference to Smith that might support 
your distinction between the "blind" accommodations of religion by "cipher" 
legislatures, and whatever 
accommodations you might 
support.  No citations to its language, 
"underlying political theory," or any rule of decision (principled, 
administrable or otherwise).
The key point is that Smith 
is, among other things, very 
pro-deference to legislatures. Consistent with that, it is also very 
pro-deference to legislative accommodations of religious exercise. This is not 
just a clear implication of its 
reasoning, it is explicit in the opinion. 494 US at 890.  The 
only limitation on legislative accommodations I can find in Smith is that they 
must be "nondiscriminatory," id., which squares with the Court's typically 
greater suspicion of denomination-specific accommodations (eg, Kiryas Joel), and 
which militates in favor of broader ("blinder"?) accommodations.  
So maybe you can find support for your Est Cls argument 
against RFRA / RLUIPA somewhere else, but not in Smith, which cuts strongly the 
other way.
And whether supported by Smith or not, I think 
the rhetoric of judicial deference to legislatures hangs a bit in tension with 
occasional, standardless maligning of legislatures as "ciphers."  
And whether internally consistent or not, 
opposing all judicial and (at least) most legislative religious exemptions 
certainly operates to the systematic disadvantage of religious 
litigants.  This is not a claim about "vested interests" you may or may not 
have, but instead about the foreseeable, practical effect of your position if it 
were the law.
 
-Original 
Message-From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED]On Behalf Of 
[EMAIL PROTECTED]Sent: Wednesday, April 13, 2005 2:38 
PMTo: religionlaw@lists.ucla.eduSubject: Re: Religion-only 
accommodation question

  
  As I've said repeatedly, legislatures are far from perfect.  But 
  they are institutionally more competent to assess the public good than courts 
  are.  They are also more accountable.  I have no vested interest in 
  seeing accommodations denied, and support many, but the blind accommodation 
  formulation of a rfra leaves too many entities at risk of harm.
   
  Marci
   
   
  In a message dated 4/12/2005 5:35:31 P.M. Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  Somehow, then, legislatures are paragons of 
deliberation about the public good when religious people or 
institutions seek exceptions 
under the First Amendment through the courts, but then "ciphers" offering 
"blind handouts" when they would legislate accommodations of religious 
exercise for all. 
  
   
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RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Newsom Michael]

Title: Message









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:[EMAIL PROTECTED] 
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

[EMAIL PROTECTED]




-Original
Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 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 

To: 'Law
& Religion issues for Law Academics' 

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 sufficie

RE: Discrimination Against Wiccans; Simpson v. Chesterfield Count y

[Lund, Christopher]

    I
think it's important not to get sidetracked.  Yes, some of those supporting
Simpson opposed Child Evangelism Fellowship's claim in the Montgomery
County Public Schools case.  Maybe that's inconsistent, maybe
not.  But if your point proves anything, it proves that supporters of Child
Evangelism Fellowship should be even more
supportive of Simpson's claim than CEF's opponents.  In
a way, Simpson and CEF are kindred souls; they both are examples of dissenting religious
voices being screened out by government. 

 

    Look,
in my mind, the most admirable voices who have fought for "religion in
the public square" (whatever that means) have done so because they want
to see religious voices being treated fairly, equally, with other voices. 
Instead of stripping religion from the square, they want it to be a place where
people from all faiths can gather.  But there always has been a
recognition that this magnifies the need for the government to play no
favorites.  Judge McConnell, reacting against cases like Allegheny County, once
put it like this:

 

 "If members
of minority religions (or other cultural groups) feel excluded by government
symbols or speech, the best solution is to request fair treatment of
alternative traditions, rather than censorship of more mainstream symbols. If a
government refuses to cooperate with minority religious (and other cultural)
groups within the community, there may be a basis for inferring that the choice
of symbols was a deliberate attempt to use government influence to promote a
particular religious position.  Courts should not encourage the
proliferation of litigation by offering the false hope that perfect neutrality
can be achieved . . . [But] certainly they should not allow official acts that
declare one religion, or group of religions, superior to the rest." 
Michael McConnell, Religious Freedom at a
Crossroads, 59 U. Chi. L. Rev. 115, 193-94 (1992).

 

This is Simpson, right? 
She feels excluded by government speech.  She asks for fair treatment for
her alternative tradition rather than censorship.  The government refuses
to cooperate, explaining that it has declared the Judeo-Christian tradition superior
to hers.  

 

This case has got to be a case that most groups, left to
right, can agree is wrongly decided.  Americans United will surely be
writing petitions for en banc review and certiorari - surely groups from
across the spectrum should get involved.  

 

Chris 

    

-Original Message-
From: Kim Colby
[mailto:[EMAIL PROTECTED] 
Sent: Friday, April
 15, 2005 8:34 AM
To: 'Law & Religion issues for
Law Academics'
Subject: RE: Discrimination
Against Wiccans; Simpson v. Chesterfield County

 

I am not quite sure why
Marty thinks this Fourth Circuit decision (Chesterfield) is "indefensible
in a fairly fundamental respect" after his attack (last summer on
this list serve) on a Fourth Circuit decision requiring a school district
to distribute fliers regarding meetings of Child Evangelism Fellowship on the
same basis that it distributed fliers for over 200 other community
organizations. I don't understand how Marty reconciles his criticism of
the Chesterfield decision (for not requiring equal treatment among community
speakers) with his criticism of the Montgomery County Public Schools
decision (for requiring equal treatment among community speakers).

 

Indeed, it seems to me
that it is arguably more defensible for the government to pick and
choose among religions when the government is providing a forum for only one
speaker at a time in a context in which many observers could reasonably view
the speech as having government approval (which Marsh seems to allow
whether or not it makes sense in the overall Establishment Clause
context).  It seems to me completely indefensible for the government to
distribute fliers for hundreds of community groups, including many different
religious groups, and then refuse to distribute the fliers of a group whose
views it deems "evangelical" or "proselytizing" (even
though the fliers were purely informational about where and when the meetings
were held).

 

Disclaimer:  I am
co-counsel for Child Evangelism Fellowship in the Montgomery County Public
Schools case.

 

Kim Colby

 







From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Marty Lederman
Sent: Friday, April 15, 2005 8:47
AM
To: Law & Religion issues for
Law Academics
Subject: Re: Discrimination
Against Wiccans; Simpson v. Chesterfield County



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?  M

RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[David Cruz]

On Fri, 15 Apr 2005, West, Ellis wrote:

> [snip]  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, [snip]

Does that count as a *secular* purpose??  I thought legislative prayers
were typically justified on solemnization rationale.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[West, Ellis]

Title: Message



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 [EMAIL PROTECTED] 


  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of A.E. BrownsteinSent: Friday, April 15, 2005 
  12:07 PMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: Discrimination Against Wiccans; Simpson v. 
  Chesterfield CountyI 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 BrownsteinUC DavisAt 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 
  
  To: 'Law & 
  Religion issues for Law Academics' 
  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 
  

Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[A.E. Brownstein]

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


To: 'Law &
Religion issues for Law Academics' 

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


[EMAIL PROTECTED]


(713) 743-2553 (direct)


(713) 743-2122 (fax)


 


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Please

Re: Stanford's "Warning" about Religion

[A.E. Brownstein]

But, leaving all else aside, not all "cults", or groups that operate in the 
way that Stanford describes, are religious. Stanford's implication that 
only groups identifying themselves as religious engage in the warned 
against conduct is simply wrong.

Alan Brownstein
UC Davis

At 06:33 PM 4/14/2005 -0400, you wrote:
With all due respect to those critical of Stanford on this issue, the 
problem of cults in California has been more pronounced than any other 
place in the country.  Children are coming there, usually quite 
vulnerable, and what Stanford has said is not factually inaccurate.  I did 
not read the warning so much as a criticism of all religion, but rather a 
warning about the dangers of some.   Given what some religious entities 
have done to children in this country, I don't see that as inappropriate.

Marci
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Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Steven Jamar]

There is a meanginful difference between discriminating against one religion among many religious contenders and discriminating against all religions to avoid establishment.

The validity of seeing the two cases as distinct does not resolve how either should be  resolved.

Nonetheless, like Marty, I find the individual discrimination easier to say is a violation than the exclusion of a whole class of entities in this situation.  No prayer at all v. excluding some as unworthy seems easy to me.


On Friday, April 15, 2005, at 10:13 AM, Marty Lederman wrote:

My positions in the two cases are not in the slightest bit inconsistent.  But don't take my word for it:  My principal posts on the Child Evangelism case are set out below (truncated so as to come within the space limits), and they continue to reflect my views on the Free Speech Clause question presented there.  Suffice it to say that if my school district permitted virtually all religious flyers to be included in childrens' backpacks other than those of the Wiccans, I would think that the Wiccans would have a fairly airtight constitutional claim, notwithstanding that I might think the underlying policy (allowing religious flyers at all) was constitutionally dubious (just as I think Marsh is fairly indefensible).   
 
-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)


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RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Kim Colby]

As the Court of Appeals found in Montgomery County Public 
Schools, the school district was distributing fliers for hundreds of community 
groups, including numerous religious groups.  The fact that they were 
distributing  groups' fliers was not critical to the 
Court's holding; the reasoning of the Court would not have allowed the 
exclusion of CEF simply because it was religious even if all the other groups 
were secular.  That result is required by Supreme Court precedent which 
requires inclusion of a single religious group on the same terms as "secular" 
groups.  See e.g., Widmar, Mergens, Lamb's Chapel, Pinette, 
Rosenberger, Milford.  The fact that MCPS was distributing for other 
religious groups that it deemed not to be "evangelical" or "proselytizing" 
simply made the case that much easier for the Fourth Circuit (and MCPS's 
position that much less defensible).  


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty 
LedermanSent: Friday, April 15, 2005 10:14 AMTo: Law & 
Religion issues for Law AcademicsSubject: Discrimination Against 
Wiccans; Simpson v. Chesterfield County

My positions in the two 
cases are not in the slightest bit inconsistent.  But don't take my word 
for it:  My principal posts on the Child Evangelism case are set 
out below (truncated so as to come within the space limits), and they continue 
to reflect my views on the Free Speech Clause question presented 
there.  Suffice it to say that if my school district permitted virtually 
all religious flyers to be included in childrens' backpacks other than those of 
the Wiccans, I would think that the Wiccans would have a fairly airtight 
constitutional claim, notwithstanding that I might think the underlying policy 
(allowing religious flyers at all) was constitutionally dubious (just as I think 
Marsh is fairly indefensible).   



 
My posts 
on the Child Evangelism case:
 
I agree 
with Eugene that there’s not much of a “compelled speech” problem here, for 
reasons the Court explained in Southworth. . . . .Nevertheless, I think the case is not as clear-cut as it 
appears at first; but the reasons why that is so are obscured by the 
(questionable) way in which the case was litigated.
 
The court 
finds without much effort that the District’s exclusion of the Good News Club 
flyers would be a Free Speech Clause violation if there were no Establishment 
Clause bar to distributing the flyers.  
This conclusion is not surprising, because the District conceded 
that its exclusion of the flyers – which would announce Good News Club meetings 
-- was unconstitutional viewpoint discrimination “under controlling 
precedent.”  Slip op. at 7.  That concession was probably 
ill-advised.  I think the Free 
Speech Clause question is much more complicated than the District and the court 
assumed it to be, wholly apart from Wooley and any issue of compelled 
speech.  Just as did the Supreme 
Court in Rosenberger, the court in 
this case incorrectly assumed 
that the school permits virtually all types of nonprofit speech (except 
religious speech), including most any controversial _expression_, to be conveyed 
to students and parents in the relevant “program.”  That assumption is mistaken.
 
The 
District policy in question does not permit all nonprofit groups to 
distribute whatever literature they choose.  That is to say, it is not a public 
forum, nor analogous to one.  The 
policy states that “[a]nnoucements of educational services or cultural or 
recreational programs directly related 
to the educational program may be made available to students” provided 
that the organization sponsoring the announcement is not-for-profit “and 
the announcement is approved for distribution by either the director for 
School Administration or the deputy superintendent of schools.”  Thus, groups may distribute literature 
only if (i) it is “directly related to the educational program,” and (ii) 
it is “approved” for distribution by a school official, who is presumably 
entrusted with some discretion 
in the matter.
 
Under any 
reasonable understanding, announcements of religious meetings are not “directly related to the educational 
program,” because, whatever else that criterion means, it must not encompass invitation to 
participation in religious activities – _expression_ that the District itself is 
constitutionally forbidden from conveying as part of its “educational 
program.”
 
That, frankly, should be end of the Free Speech claim, and thus the 
end of the case, except that it appears that in practice, the District’s 
enforcement of the “directly related” criterion is a bit counterintutive.  . . . Nevertheless, if “directly related” simply 
means the sort of speech that school teachers themselves would be permitted 
to make to their students – which is how the criterion appears to have been 
understood in practice -- then these school-approved advertisements satisfy, at 
least for the most part, the criterion in a way that inv

Discrimination Against Wiccans; Simpson v. Chesterfield County

[Marty Lederman]

My positions in the two 
cases are not in the slightest bit inconsistent.  But don't take my word 
for it:  My principal posts on the Child Evangelism case are set 
out below (truncated so as to come within the space limits), and they continue 
to reflect my views on the Free Speech Clause question presented 
there.  Suffice it to say that if my school district permitted virtually 
all religious flyers to be included in childrens' backpacks other than those of 
the Wiccans, I would think that the Wiccans would have a fairly airtight 
constitutional claim, notwithstanding that I might think the underlying policy 
(allowing religious flyers at all) was constitutionally dubious (just as I think 
Marsh is fairly indefensible).   



 
My posts 
on the Child Evangelism case:
 
I agree 
with Eugene that there’s not much of a “compelled speech” problem here, for 
reasons the Court explained in Southworth. . . . .Nevertheless, I think the case is not as clear-cut as it 
appears at first; but the reasons why that is so are obscured by the 
(questionable) way in which the case was litigated.
 
The court 
finds without much effort that the District’s exclusion of the Good News Club 
flyers would be a Free Speech Clause violation if there were no Establishment 
Clause bar to distributing the flyers.  
This conclusion is not surprising, because the District conceded 
that its exclusion of the flyers – which would announce Good News Club meetings 
-- was unconstitutional viewpoint discrimination “under controlling 
precedent.”  Slip op. at 7.  That concession was probably 
ill-advised.  I think the Free 
Speech Clause question is much more complicated than the District and the court 
assumed it to be, wholly apart from Wooley and any issue of compelled 
speech.  Just as did the Supreme 
Court in Rosenberger, the court in 
this case incorrectly assumed 
that the school permits virtually all types of nonprofit speech (except 
religious speech), including most any controversial _expression_, to be conveyed 
to students and parents in the relevant “program.”  That assumption is mistaken.
 
The 
District policy in question does not permit all nonprofit groups to 
distribute whatever literature they choose.  That is to say, it is not a public 
forum, nor analogous to one.  The 
policy states that “[a]nnoucements of educational services or cultural or 
recreational programs directly related 
to the educational program may be made available to students” provided 
that the organization sponsoring the announcement is not-for-profit “and 
the announcement is approved for distribution by either the director for 
School Administration or the deputy superintendent of schools.”  Thus, groups may distribute literature 
only if (i) it is “directly related to the educational program,” and (ii) 
it is “approved” for distribution by a school official, who is presumably 
entrusted with some discretion 
in the matter.
 
Under any 
reasonable understanding, announcements of religious meetings are not “directly related to the educational 
program,” because, whatever else that criterion means, it must not encompass invitation to 
participation in religious activities – _expression_ that the District itself is 
constitutionally forbidden from conveying as part of its “educational 
program.”
 
That, frankly, should be end of the Free Speech claim, and thus the 
end of the case, except that it appears that in practice, the District’s 
enforcement of the “directly related” criterion is a bit counterintutive.  . . . Nevertheless, if “directly related” simply 
means the sort of speech that school teachers themselves would be permitted 
to make to their students – which is how the criterion appears to have been 
understood in practice -- then these school-approved advertisements satisfy, at 
least for the most part, the criterion in a way that invitation to bible study 
would not.  See Mergens, 496 U.S. at 265-66 (Marshall, 
J., concurring in the judgment) (“although a school may permissibly encourage 
its students to become well rounded as student-athletes, student-musicians, and 
student-tutors, the Constitution forbids schools to encourage students to become 
well rounded as student-worshippers”).
 
Moreover, there 
is the additional criterion that flyers may be distributed only if “approved” by 
a school official – thus providing an unambiguous school endorsement to the 
preferred speakers.  In the 18 
months in question in the case, the District did, in fact, reject 19 of 402 
nonprofit requests to participate in the program.  (Slip op. at 6-7.)  The decision does not say why those 19 
requests were excluded, but it’s not hard to imagine plenty of requests that 
would either clearly not be 
directly related to the educational program, or that would be rejected out of 
hand by school officials:  Flyers 
for nonprofit bungee-jumping.  
Flyers urging parents to criticize school board policies.  Flyers supporting Al Qaeda, or the 
Klan.  Flyers in

RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Kim Colby]

I am not quite sure why Marty thinks this Fourth Circuit 
decision (Chesterfield) is "indefensible in a fairly fundamental 
respect" after his attack (last summer on this list serve) on a Fourth 
Circuit decision requiring a school district to distribute fliers regarding 
meetings of Child Evangelism Fellowship on the same basis that it distributed 
fliers for over 200 other community organizations. I don't understand how 
Marty reconciles his criticism of the Chesterfield decision (for not requiring 
equal treatment among community speakers) with his criticism of 
the Montgomery County Public Schools decision (for requiring equal treatment 
among community speakers).
 
Indeed, it seems to me that it is arguably more 
defensible for the government to pick and choose among religions when the 
government is providing a forum for only one speaker at a time in a context in 
which many observers could reasonably view the speech as 
having government approval (which Marsh seems to allow whether or not it 
makes sense in the overall Establishment Clause context).  It seems to me 
completely indefensible for the government to distribute fliers for hundreds of 
community groups, including many different religious groups, and then refuse to 
distribute the fliers of a group whose views it deems "evangelical" or 
"proselytizing" (even though the fliers were purely informational about where 
and when the meetings were held).
 
Disclaimer:  I am co-counsel for Child Evangelism 
Fellowship in the Montgomery County Public Schools case.
 
Kim Colby


From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty 
LedermanSent: Friday, April 15, 2005 8:47 AMTo: Law & 
Religion issues for Law AcademicsSubject: Re: Discrimination Against 
Wiccans; Simpson v. Chesterfield County

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 
  To: 'Law & Religion issues for Law 
  Academics' 
  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

Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[James Maule]

Speaking of discrimination against Wiccans:

"Calif. Boy Says He's Suspended for Makeup"
(http://www.msnbc.msn.com/id/7495484/)

A ninth-grade student has accused officials at a Southern California
high school of discrimination for suspending him for wearing lipstick
and eye makeup.

James Herndon, 16, said the five-day suspension imposed Monday by
administrators at San Bernardino's Pacific High School was unfair
because females are allowed to wear cosmetics on campus. "If I can't
wear makeup," he said, "then the girls or the staff can't wear makeup."

Herndon says his black lipstick and red eye makeup express the Wiccan
religious beliefs he shares with his mother, a priestess in the
neo-pagan faith. The suspension violates his constitutional right to
free expression, he contends

* * * * * * (rest of article at http://www.msnbc.msn.com/id/7495484/)

Jim Maule
Villanova University School of Law


>>> [EMAIL PROTECTED] 4/15/2005 8:46:31 AM >>>
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 
  To: 'Law & Religion issues for Law Academics' 
  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

  [EMAIL PROTECTED] 

  (713) 743-2553 (direct)

  (713) 743-2122 (fax)





--


  

Re: Simpson v. Chesterfield County

[Jean Dudley]

On Apr 14, 2005, at 11:01 PM, Lund, Christopher wrote:
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
Plenty of thoughts.
George Bush was quoted before the 2000 election that he thought Wicca 
wasn't  a "real" religion, and therefore was not entitled to protection 
under the First Amendment.  His words seem to echo the vast majority of 
American opinion on Wicca and Neo-Paganism.  Part of the problem is the 
general perception that Wicca and Neo-Paganism are "made up" religions, 
and therefore are invalid.

We could get into all sorts of discussion about what is "real 
religion", but that's not the point;  the government has no business 
deciding what is a real religion over what isn't.

In Texas, there is a big push to disqualify Unitarians because it's not 
a "real" religion;  I find that pretty mind boggling, personally.  
There there is a situation where a boy was suspended from school for 
wearing make-up;  He claims it's a part of his Wiccan faith.  
(http://abclocal.go.com/kabc/news/print_041305_ns_suspended.html)

I find that dubious;  As a Wiccan priestess myself, there is no Wiccan 
dogma that stipulates the wearing of goth makeup outside of ritual.  
However, Wicca is a dogma-free religion.  "An it harm none, do what 
thou will" is one of the major beliefs.  I suspect it's ignorance on 
the part of the article's author--also you will note that "neo-pagan" 
is used instead of Neo-Pagan.  This is a common mistake, but the OED 
and all American Dictionaries  stipulate that proper names of religions 
and religious groups are capitalized.  You don't see "judeo-christian", 
do you?

Never mind that I think he looks like a caricature of a KISS member.  
What I think about his make-up isn't at issue.  What is at issue is his 
right to express his religious beliefs as he sees fit.  I also think 
that his argument should be based on sex-discrimination, not religious 
freedom.  Girls are allowed to wear makeup at the school, boys are 
prohibited.

In Simpson v. Chesterfield County, I think the county erred by saying 
that prayers were limited to Judeo-Christian invocations.  That's 
endorsement of a religious group, and that's illegal.

Jean Dudley
http://jeansvoice.blogspot.com
Future Law Student
___
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RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Joel Sogol]

The entire situation reminds one of Martin Niemöller’s lines about moral failure:

 

'First they came for the
Communists, but I was not a Communist, so I said nothing. Then they came for
the Social Democrats, but I was not a Social Democrat, so I did nothing. Then
came the trade unionists, but I was not a trade unionist. And then they came
for the Jews, but I was not a Jew, so I did little. Then when they came for me,
there was no one left to stand up for me.'

 

Doesn’t the question simply become  --  Who’s
next?

 



Joel L. Sogol

Attorney at Law

811 21st Avenue

Tuscaloosa, Alabama 35401

ph (205- 345-0966)

fx (205)-345-0971

[EMAIL PROTECTED]

 

Ben Franklin observed that truth wins a
fair fight -- which is why we have evidence rules in U.S. courts.

 



-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Friday, April 15, 2005 7:47
AM
To: Law &
 Religion issues for Law Academics
Subject: Re: Discrimination
Against Wiccans; Simpson v. Chesterfield County

 



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 





To: 'Law
& Religion issues for Law Academics' 





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

[EMAIL PROTECTED]

(713) 743-2553 (direct)

(713) 743-2122 (fax)

Re: Discrimination Against Wiccans; Simpson v. Chesterfield County

[Marty Lederman]

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 
  To: 'Law & Religion issues for Law 
  Academics' 
  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
  [EMAIL PROTECTED]
  (713) 743-2553 
  (direct)
  (713) 743-2122 
  (fax)
   
  
  

  ___To post, send 
  message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change 
  options, or get password, see 
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  that messages sent to this large list cannot be viewed as private.  
  Anyone can subscribe to the list and read messages that are posted; people can 
  read the Web archives; and list members can (rightly or wrongly) forward the 
  messages to others.
___
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To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archive