Archives For Cynthia Simpson

On Tuesday the Supreme Court of the United States denied certiorari (judicial review) in the case of Forsyth County, North Carolina v. Joyner, which challenged the local government’s opening prayer policy. In this instance, Forsyth County had constructed an ”inclusive” (and thus theoretically constitutionally protected) model where all comers could have a turn, but challengers to the policy noted that the prayers were overwhelmingly Christian, and created a chilling atmosphere towards non-Christian faiths.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

During the period contested in the lawsuit, four-fifths of the prayers referred to “Jesus” in one form or another. The 4th Circuit made very clear that the lack of balance in presented prayers was an important factor in ruling that Forsyth’s policy violated the Establishment Clause.

The Lewis F. Powell, Jr., U.S. Courthouse
The Lewis F. Powell, Jr., U.S. Courthouse, home of the Fourth Circuit Court of Appeals.

“…legislative prayer must strive to be nondenominational so long as that is reasonably possible — itshould send a signal of welcome rather than exclusion. Itshould not reject the tenets of other faiths in favor of just one.Infrequent references to specific deities, standing alone, donot suffice to make out a constitutional case. But legislativeprayers that go further — prayers in a particular venue that repeatedly suggest the government has put its weight behinda particular faith — transgress the boundaries of the Establishment Clause. Faith is as deeply important as it is deeply personal, and the government should not appear to suggestthat some faiths have it wrong and others got it right.”

This skirmish over prayer before government meetings is just the latest in a protracted struggle between the ACLU and the more socially conservative-minded Alliance Defense Fund. While the ACLU is generally skeptical of allegedly inclusive sectarian open prayer models, the Alliance Defense Fund believes them to be constitutionally protected, and part of America’s heritage. Responding to this setback, the ADF said that “the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country.”

“No federal court has ruled that prayers cannot be offered before public meetings. The Supreme Court has simply missed an opportunity to clear up the differing opinions among the various circuits about the content of the prayers. This means that, for the time being, the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country. ADF will continue to litigate in favor of the historical standard until the Supreme Court eventually hears a case that will clear up the confusion.”

The Alliance Defense Fund had a lot invested in this case, and other cases like this, as Forsyth was following their blueprint for protected government sectarian prayer. A blueprint partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. Despite the fact that towns like Greece, New York and Lancaster, California have won lower-court challenges by including a smattering of minority religions in sectarian prayers (aka the “include a Wiccan gambit”), the law isn’t settled on what, if any, formula for sectarian prayer at a government meeting will pass constitutional muster. It can be folly to read too much into a denied certiorari request, but by letting this decision stand, a decision that invokes both Simpson’s and Wynne’s cases, SCOTUS does leave the idea that balance is necessary in a sectarian prayer model on the table.

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

Eventually, SCOTUS will have to make a stand on these sectarian prayer policies, just as it recently took a stand on the question of “ministerial exception.” A concept that had been invoked several times in the lower courts, but never in our nation’s highest court. When it does, cases that involve Wiccans and other minority faiths will have a major influence on how that decision is made. In the meantime, Americans United, the ACLU, the Alliance Defense Fund, and several other advocacy groups, will try to build up their positions in the lower courts. No doubt several towns and cities who fall under the jurisdiction of the 4th Circuit Court of Appeals are currently talking with their lawyers over their prayer policies, and whether they need to include more Wiccans.

There’s been quite a bit of discussion this year concerning when sectarian prayers in the United States are permissible in a governmental setting. We’ve had the drama of the “Wiccan-proof” prayer policy in Frederick County, Maryland, and Lancaster, California’s voter-approved sectarian policy, which has withstood one legal challenge so far. Both of these prayer policies are hoping that a stated commitment to broad inclusion will protect them from litigation, but a new ruling in the 4th Circuit Court of Appeals seems to have thrown some doubt on the idea that simply saying you’re inclusive while showcasing predominantly sectarian Christian prayer is acceptable.

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. [...] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

If this ruling should withstand a Supreme Court challenge, it could change the tactics of groups like the Alliance Defense Fund, a main proponent of the inclusive sectarian model. They know that these sorts of policies favor the religious majority, typically Christianity, and that religious minorities will be drowned out in a sea of invocations to Jesus. A point brought up in the 4th Circuit’s ruling.

…the Board clarified that the prayers were “not intended, and shall not be implemented or construed in any way, to affiliate the Board with, nor express the Board’s preference for, any faith or religious denomination.” Instead, the stated goal of the policy was to “acknowledge and express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of Forsyth County.” Despite that language, the prayers repeatedly continued to reference specific tenets of Christianity. These were not isolated occurrences: between May 29, 2007 and December 15, 2008, almost four-fifths of the prayers referred to “Jesus,” “Jesus Christ,” “Christ,” or “Savior.”

What’s the problem with this? It creates a environment of intimidation and unspoken preference for one religious point of view in a place that is supposed to serve and be open to all citizens regardless of their religious preferences.

On Joyner and Blackmon’s account, the overall atmosphere made them feel distinctly unwelcome and “coerced by [their] government into endorsing a Christian prayer.” Blackmon claimed that she felt compelled to stand and bow her head because of the Chair’s instruction to stand and because of the audience’s response. Joyner offered a similar account, believing that if she had failed to comply, it would have “negatively prejudice[d] consideration of [her] intended petition as a citizen appearing for public comment.” Both characterized the prayer as sectarian, with Blackmon referring to it as including a “one-minute sermon.”

This puts into doubt the legal fig-leaf of Lancaster, California’s token inclusion of non-Christians. While the court ruled that the prayer policy of the Forsyth County Board of Commissioners is not necessarily unconstitutional, the overwhelmingly Christian nature of the sectarian prayers helped “create an environment in which the government prefers — or appears to prefer — particular sects or creeds at the expense of others.” If your prayer policy is open, but 4/5′s of your prayers are to Jesus, then you’re creating an atmosphere of preference that (perhaps inadvertently) endorses one type of religiosity over another.

It should also be noted that the 4th Circuit’s decision referenced two cases they previously heard involving Pagans and prayer. Simpson v. Chesterfield County, the case that helped created the so-called “Wiccan-proof” prayer policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. In fact, the Alliance Defense Fund’s “model invocation policy” was designed after these two cases involving Pagans and sectarian prayer earned national attention. So this is a new wrinkle of constitutional needle-threading that proponents of sectarian prayer at government meetings will have to address. The “include a Wiccan” gambit may not work if the rest of the prayers overwhelming endorse Christ. Will those who desperately want to invoke Jesus be able to stomach balancing that out with non-Christian prayers? Expect future challenges to address this very issue. Frederick County, Virginia may now technically be open to polytheist invocations, but they are under the 4th Circuit Court’s jurisdiction, so they better watch their balance.

Back in May I wrote an article looking at the issue of opening invocations at various government bodies. At the center of that piece was discussion of a recently enacted policy in Maryland by the Frederick County Commissioners. The new policy was modeled on the one adopted by the Chesterfield County Board of Supervisors in Virginia after they successfully survived a legal challenge by Wiccan priestess Cynthia Simpson. That policy, and the Frederick County Commissioners’ new policy, called for nonsectarian prayers, but only from members of established monotheistic faiths.

“Board members voted 3-to-2 on Thursday to invite religious leaders to attend their meetings to invoke “divine guidance” for the commissioners and their deliberations. The religious leaders must be ordained and affiliated with a monotheistic religion with an established congregation in Frederick County. Their prayers must avoid referring to any particular religion, denomination or sect.”

An NBC Washington headline called it the “Wiccan-proof prayer policy” and that spin must have caught the attention of County Attorney John Mathias, because the commissioners voted to alter the policy yesterday.

“They voted Thursday in Frederick to adopt changes recommended by County Attorney John Mathias. A key revision eliminates language allowing only those of monotheistic religions to offer the opening invocation. Mathias says such a restriction would have required the county to determine which religions are monotheistic.”

This is an interesting development. In theory, they should be on solid legal ground. Back in 2005 the 4th U.S. Circuit Court of Appeals decided that Chesterfield County’s policy was diverse enough, meeting the standards set by the Supreme Court in Marsh v. Chambers (though the Hindu American FoundationThe Buddhist Peace FellowshipThe Association on American Indian Affairs, and The Interfaith Alliance did not agree). So either this is a public relations move, or, they think that if this policy is challenged as-is it might not stand up in court. Considering the rather rah-rah “one nation under God” rhetoric of the original press release in May, I don’t think their hearts were suddenly moved by the absence of polytheists, or that they were worried over losing the critical polytheist vote in Frederick County (though they were contacted multiple times for comment by the DC bureau of the Pagan Newswire Collective). So it must mean that there is real concern, perhaps even outside Frederick County, that explicitly excluding non-monotheistic religions could ultimately bring down the “nonsectarian monotheist invocations only” house of cards in Chesterfield as well.

Now that Frederick County is open to polytheist invocation, at least in theory (one that I hope gets tested soon), perhaps it’s time for the ACLU in Virginia to return to Chesterfield County and begin building a new case. In the meantime, I applaud the Frederick County Commissioners for doing the right thing, albeit a few months later than I would have liked.

Few could have envisioned that when Wiccan Darla Kaye Wynne first filed suit against the small South Carolina town of Great Falls in 2001, that it would spark a seven-year judicial and legislative odyssey that threatens to escalate into a full-blown national legal battle over public prayer. Yet, with this (initially) small suit over sectarian prayer at governmental meetings, that is exactly what happened. A slow-brewing conflict that has now spawned a legislative strategy designed to silence future Darla Wynnes, and will soon face legal challenges as the “South Carolina Public Invocation Act” shortly becomes law.

“The South Carolina General Assembly unanimously passed a bill Wednesday that provides guidelines to public bodies within the state regarding their right to open a meeting with prayer. The bill, which adopts a version of the Alliance Defense Fund’s model invocation policy, now awaits a signature from Gov. Mark Sanford to become law. Sanford has already indicated his intention to sign it.”

The Alliance Defense Fund’s “model invocation policy” was designed after two cases involving Pagans and sectarian prayer earned national attention. South Carolina is their first big test of the policy, which intentionally creates “constitutional confusion” over sectarian prayer and places legal roadblocks intended to dissuade future lawsuits. Needless to say, the ACLU is readying itself to challenge the law. The ACLU national board recently took over the local South Carolina chapter, after it became clear there was a crisis of leadership and fundraising hindering it from addressing these upcoming issues.

“If there is one state that can ill afford an ineffective chapter of the American Civil Liberties Union it arguably is South Carolina … in recent years [the SC ACLU chapter] been hampered by ideological squabbling among its board members, staff leadership turnover, lackluster membership and fundraising numbers and a virtually nonexistent media presence. Aware of the problems for some time, the national ACLU board has decided to step in and try to right the ship.”

At stake are the religious freedoms of religious minorities in South Carolina, and ultimately, all over this country. Those who live in smaller towns, rural areas, and states unfriendly to the sort of diversity we represent. The ones who aren’t lucky enough to live in the Bay Area, Salem, or Paganistan. A small prayer to Jesus may not seem like a big deal, until your realize that without the promise of a secular government, our rights to an equal place at the table are jeopardized, and we are ultimately afforded second-class status due to our non-Christian allegiance. Which is why Hindu, Buddhist, and Native American groups have lined up in the past to support Pagans fighting against “Judeo-Christian” sectarian prayer.

“As adherents of non-Judeo-Christian religions, Hindu Americans, Buddhist Americans, and Native Americans have a direct interest in this [Cynthia Simpson's] case. They, like all Americans, are guaranteed religious freedom by the religion clauses of the First Amendment. The ability of these minority religious groups to take part equally in American civic life, a fundamental freedom protected by the religion clauses, is threatened by the Fourth Circuit’s holding that the Establishment Clause does not prohibit governments from excluding non-Judeo-Christian clergy from eligibility to offer legislative invocations.”

So expect a big legal fight in the near future (which, once again, pits the ACLU against the Alliance Defense Fund), one that could very well head to the Supreme Court, and don’t expect too many South Carolina lawmakers to come out in support of religious minorities. South Carolina is a place where even Democrats don’t believe Wicca is a real religion. A loss here will mean similar prayer laws sprouting up anywhere the Alliance Defense Fund has enough pull (places like Texas and Oklahoma, for example).

If you were ever looking for proof that the small legal battles Pagans get involved in matter, or that issues over sectarian prayer are important, look no further than South Carolina, and the small town of Great Falls. Where a single Pagan stood up and fought for a local legislative body that worked for all its citizens, not just the Christian ones.

South Carolina is making the news for a bill focusing on public prayer that has been advanced in its Senate. The South Carolina Public Invocation Act, originally introduced by Republican Senator Chip Campsen (with guidance by the ultra-conservative Alliance Defense Fund*), would give state-wide “guidelines” for allowable forms of public prayer.

“The legislation now headed to the Senate Judiciary Committee gives local governments three possibilities for legal prayer: Elect a chaplain, let each member of the board pray on a rotating basis, or invite local religious leaders to put their name on a list to pray and schedule them on a first-come, first-serve basis.”

It becomes clear from reading the bill that its authors are trying to navigate the legal waters created by two cases involving Wiccans and public prayers: Darla Wynne (a resident of South Carolina who won her case against Great Falls) and Cynthia Simpson (a Virginia resident who ultimately lost hers). In other words, they are trying to bring back prayers to Jesus at government meetings without the lawsuits.

“‘The content of the prayer is not important as long as it’s not used to proselytize,’ said Mike Johnson, an attorney for the Alliance Defense Fund, a national group that aims to defend the First Amendment. ‘Don’t come to the podium and make an altar call.’ … Sen. Larry Martin, a co-sponsor of the South Carolina Public Invocation Act, said he hopes the measure prevents school boards and city and county councils from receiving “blanket demands of, ‘If you pray, I’ll sue you.’” … “Too often they’re browbeaten and intimidated, and they throw their hands in the air,” [Chip] Campsen said. ‘Little towns don’t have the legal staff we have.’”

In short, if this bill becomes law, the Darla Wynnes of this world can’t sue the local city council for exclusively praying to Jesus without bringing litigation against the entire state. Its clear that the authors are hoping that their emphasis on context will win over content (ie Jesus), and in turn create a legal fog of what can or can’t be allowed.

“Joyce Cheeks, interim director of the American Civil Liberties Union of South Carolina, opposed the measure as the state government sanctioning and supporting prayers before public meetings. The bill also directs the attorney general’s office to keep up with court cases that could add to or change the possibilities. It intentionally gives no direction on whether a prayer can mention a deity, instead suggesting boards seek local legal advice on that. “I think this might actually add to the constitutional confusion,” said professor Josie Brown of the University of South Carolina Law School.”

It seems pretty obvious that this move isn’t to secure religious “rights” for all citizens, but to allow a predominately conservative Christian state to keep invoking Jesus before meetings. The press in this case seem to be uncritical about assertions that the ACLU wants to eliminate public prayer, when instead its been well-established that they are asking for non-sectarian prayers (or no prayers at all if such a compromise can’t be reached). One wonders, if this bill becomes law, how long before Great Falls uses the new blanket protection to destroy everything Darla Wynne endured and worked for.

If you live in a town where the vast majority are Christians, public invocations of Jesus before any public event don’t have to be “altar calls” to establish a quasi-official hierarchy of belief. How seriously do you think a Buddhist, Wiccan, Hindu, or Muslim will be taken at a government meeting that asks for the guidance and blessing of Jesus?

* You may remember the Alliance Defense Fund as the group who is representing The Street Preachers’ Fellowship in a suit against Grand Rapids Michigan after they were ordered to stop harassing a local Pagan gathering.

The Winston-Salem Journal reports on a lawsuit between the American Civil Liberties Union of North Carolina (along with Americans United) and Forsyth County over their policy concerning prayer at county board meetings.

“The lawsuit challenges prayer practices at public meetings of the county board of commissioners. Commissioners invite various leaders to lead an opening invocation at their meetings twice a month. They do not dictate what speakers can and cannot say. In many cases, Christian leaders pray to Jesus or Jesus Christ.”

The article points out that two cases decided by the 4th Circuit Court of Appeals involving Wiccans and public prayer are crucial to understanding how this case will most likely resolve itself. The first was the Cynthia Simpson case, in which a Wiccan tried to obtain equal access to a rotating panel of religious leaders who gave sectarian prayers at local board of supervisors meetings.

“The Fourth Circuit says it’s constitutionally mandatory for a public school to give students proselytizing Christian flyers, yet it’s constitutionally okay for a local government to refuse to hear nondenominational prayers from denominations its board members dislike. In other words, potential discrimination against a Christian evangelical group is verboten, but outright and public discrimination against a Wiccan, offering up nondenominational prayers, is perfectly fine. Common sense dictates that these two decisions cannot be sustained simultaneously – especially if equality is a principle of value.” – Marci A. Hamilton, law professor and author of “God vs. the Gavel: Religion and the Rule of Law”

In that case Chesterfield County was able to “win” by changing the prayers from sectarian to nonsectarian during the litigation process. The 4th Circuit ruled that so long as the prayers remained nonsectarian the list of religious leaders was inclusive enough and did not have to include Simpson.

The second case involved Darla Wynne, a Wiccan who faced incredible persecution when she asked that city council prayers in Great Falls, South Carolina either include other non-Christian faiths or become nonsectarian.

“Now keep in mind, I am still going to the meetings and dealing with their nonsense over my bumper stickers. Then one day, I stop bowing my head and the council waits for me to bow my head. They point out that some people won’t participate in the prayer and of course, everyone turns to look at me and comments are made such as, ‘Satanist. If you don’t like things the way they are leave. We don’t want your kind here.’”Darla Wynne

In that instance the 4th Circuit ruled that prayers had to be nonsectarian. Great Falls tried to appeal that decision to the Supreme Court and lost, forcing the city to switch to nonsectarian prayer.

So it look very likely that Forsyth County will either have to become fully inclusive with their sectarian prayer (thus opening it to Wiccans or anyone else), or will have to switch to nonsectarian prayer. A legal situation that could only have happened because modern Pagans stood up for full religious equality under the law.

Christian Justice?

Jason Pitzl-Waters —  October 11, 2005 — 2 Comments

The news has just come in that Cynthia Simpson’s appeal to the Supreme Court has been rejected. Simpson, a Wiccan (and aspiring UU minister) had taken Chesterfield County, Va to court over the right to be included in the rotating opening prayers by local clergy. Originally an ACLU-backed battle by one individual the case soon gained support from The Hindu American Foundation, The Buddhist Peace Fellowship, The Association on American Indian Affairs, and The Interfaith Alliance.

This rejection by the court means that Chesterfield County can continue to alienate faiths that are not “Judeo-Christian” in origin so long as the opening prayers remain non-sectarian (the prayers weren’t non-sectarian when the case was filed and had become so by the first appeal).

The larger question is if the Supreme Court is steering clear of decisions that would upset the “status quo” of religion in America? Simpson’s case is the second case involving modern Pagans that has been refused a hearing. The first case involving Darla Wynne fell out in our favor (a third involving incarcerated Pagans upheld a law already in place).

The appointment of John Roberts as Chief Justice of the United States could create a number of setbacks to legal cases involving modern Pagans (and other minority faiths). As Chief Justice Roberts has the power to frame the tone and direction of the court. The Chief Justice controls the “discuss list” of cases to be heard (though other justices can add to it) and speaks first at conferences where cases are discussed and voted on by the Justices. Beyond that four justices must agree to hear the case for it to be added to the schedule. If the court veers further to the right with the appointment of Harriet Miers we could see a refusal to hear any case that may broaden the rights of modern Pagans on issues of equal rights, participation, and inclusion. Considering that the Roberts-led court is already looking at a case that could limit the government’s power to protect the environment I’m not too optimistic.

As it stands the developing legal status quo is that you can exclude minority faiths so long as you don’t say “Jesus”. Our rights now rest ultimately on the makeup of the Supreme Court, a scary proposition if it becomes a haven for partisan cronies.