Which Witch?

The 4th Circuit Court of Appeals released its ruling in Simpson v. Chesterfield County Board of Supervisors today. Sometimes, there are cases where one disagrees with the outcome as a matter of policy but finds it reasonable as a matter of law. This case was not one of them.

Simpson deals with prayers given at meetings of, you guessed it, the Chesterield County Board of Supervisors. Essentially, the board has a big list of religious groups, mostly churches (given the location of the county) but also synagogues and mosques. The County then sends out invitations to the lot of them, and allows any respondees to give invocations on a first come first serve basis. The suit came when Simpson, a Wiccan, asked to give an invocation. The county refused her, with their attorney saying "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." How the county can simultaneously argue its being non-sectarian and mandate its prayers stay within the "Judeo-Christian tradition" eludes me. In any event, Simpson sued, asking that the court either declare the system of prayers an unconstitutional establishment of religion, or, alternatively, declare that denying her request specifically discriminates against her on the basis of religion and is therefore unconstitutional.

In addressing the first claim, Judge J. Harvie Wilkinson, correctly in my view, established Marsh v. Chambers as the binding precedent and affirmed that legislative prayer, in the abstract, was not unconstitutional. Wilkinson, incidentally, is reportedly on Bush's shortlist for a Supreme Court spot, making this opinion particularly disheartening. In any event, I personally do not think Marsh is particularly good law, but the 4th Circuit is bound to it and its analysis makes sense. I have no real quarrel with the first part of the ruling.

Where the opinion really begins to go wrong is when it dismisses Simpson's second claim--that the admission of only clergy compatible with Judeo-Christian norms--still contains no Establishment Clause violation. The Court's analysis here ranges from the offensive to the merely incoherent. In Marsh, Nebraska hired a Presbyterian minister for 14 years to preside over prayers in the legislature. The Court here reasoned that if hiring one minister from one denomination did not violate 1st amendment restrictions, then certainly selecting many pastors from many faiths wouldn't. But this is patently absurd. For example, imagine that the county wanted to commemorate racial equality. It might select one person, say a noted civil rights leader, and have her give a speech every year, or month. In this situation, the race of the speaker (specifically, the fact that the county was only representing the views of one race) would be irrelevant. However, if the county instead selected many speakers, then systematically excluded those of a particular race (say, Native Americans), the racial discrimination would be clear. In that situation, the fact that having many speakers seems more inclusive than having only one masks--but does not eliminate--the reality that the county was blatantly engaging in racial exclusion. Similarly, in this case, the county expressly informed Simpson that her petition to give an invocation would be denied because her religion was not part of the dominant tradition. Simpson is not trying to make the county an "object of constitutional condemnation" for its inclusiveness, she is pointing out that the county's inclusiveness is a facade, it "includes" only those religions which the county considers to be sufficiently mainstream to have something worthwhile to say. That is a determination that neither Marsh, nor any other case, permits.

The opinion only goes downhill from there. Where the court moves from being illogical to plain offensive is when it implies that the Judeo-Christian tradition, and only the Judeo-Christian, has transcendental appeal that, in contrast to the cultlike Wiccans, everyone can relate to.

In seeking to invalidate the Chesterfield system, Simpson effectively denies the ecumenical potential of legislative invocations, and ignores Marsh's insight that ministers of any given faith can appeal beyond their own adherents. Indeed, Marsh requires that a divine
appeal be wide-ranging, tying its legitimacy to common religious ground. Invocations across our country have been capable of transcending denominational boundaries and appealing broadly to the aspirations of all citizens. As Marsh and other cases recognize, appropriately ecumenical invocations can be "solemnizing occasions" that highlight "beliefs widely held."

We cannot adopt a view of the tradition of legislative prayer that chops up American citizens on public occasions into representatives of one sect and one sect only, whether Christian, Jewish, or Wiccan. In private observances, the faithful surely choose to express the unique aspects of their creeds. But in their civic faith, Americans have reached more broadly. Our civic faith seeks guidance that is not the property of any sect. To ban all manifestations of this faith would needlessly transform and devitalize the very nature of our culture. When we gather as Americans, we do not abandon all expressions of religious faith. Instead, our expressions evoke common and inclusive themes and forswear, as Chesterfield has done, the forbidding character of sectarian invocations [internal citations omitted].

Nowhere in the opinion does it justify, or even attempt to explain, why Simpson's faith cannot be "wide-ranging, tying its legitimacy to common religious ground." The Court here is caught in a bind: Either Simpson's Wiccan faith shares this common ground with Judeo-Christian faiths, in which case she should be allowed to stake her claim to it same as any other religious person, or her faith doesn't share common ground, in which case it isn't common ground by sectarian ground "common" only to the religious majority. The Supreme Court has itself said legislative prayer that "have the effect of affiliating the government with any one specific faith or belief" are impermissible (Allegheny County v. ACLU, 492 U.S. 573, 603 (1989)). I'd say that it is precisely this paradox which undermines Marsh, but regardless of whether it does that or not, it certainly destroys the Court's opinion here. Skipping over that inconvenient problem, the 4th Circuit asserts that "when we gather as Americans, we do not abandon all expressions of religious faith," happily ignoring the fact that it has just forced one American to do just that.