RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
Title: Message These people can have prayers on their own behalf in a house of worship. The constitutional issue arises because they choose to have them in a public space. That fact alone points to a violation of the non-establishment principle. Furthermore, the prayers offered ARE intended to influence the religious beliefs/practices of others. Justice OConnor refers to this as endorsement. (And endorsement is a relatively weak non-establishment standard. So it must be the case that under a more rigorous understanding of the non-establishment principle these prayers are utterly unconstitutional.) -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Friday, April 15, 2005 6:03 PM To: Law Religion issues for Law Academics Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County Aren't these kinds of prayers routinely utteredin 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 prayersare 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 Michael Sent: Friday, April 15, 2005 5:17 PM To: Law Religion issues for Law Academics Subject: RE: Discrimination Against Wiccans; Simpson v. Chesterfield County I cant 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 isnt 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, theGod 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 prayersas 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
Re: Discrimination Against Wiccans; Simpson v. Chesterfield County
I think this might be a very important case -- or, at the least, an omen ofthings 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 Marshwas correctly decided; others of us believe that the Courtgot it wrong; but regardlessof 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 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
The entire situation reminds one of Martin Niemöllers 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.' Doesnt the question simply become -- Whos 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 ofthings 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 Marshwas correctly decided; others of us believe that the Courtgot it wrong; but regardlessof 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
RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
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 religious groups' fliers was not critical to the Court'sholding; 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. Seee.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 Clausequestion 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 theres 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 Districts 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 Districts 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
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 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.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can
RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
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, theGod 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 prayersas 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 give prayers. (The prayer-givers
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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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 archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination Against Wiccans; Simpson v. Chesterfield County
Title: Message I cant 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 isnt 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, theGod 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 prayersas 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 sufficiently legislative or because the prayer
