The 4th Circuit Court of Appeals recently issued a ruling in Simpson v. Chesterfield County Board of Supervisors involving prayers of invocation offered at the beginning of that board's meetings. Most such cases involve challenges to the constitutionality of holding such prayers, but in this case a woman was asking to be allowed to give a Wiccan invocation before one of the board meetings. The board refused to allow her to do so because, as they put it, their invocation prayers "are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." Christopher Lund sums up the decision:
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.
It seems to me that this is inconsistent with establishment clause jurisprudence that holds that granting access to public facilities only to one religion, or excluding certain religions, amounts to an endorsement of a particular religion or set of religions by government. If you're going to open a public park to Christian groups for nativity scenes, for example, then you have to allow other religious groups to put up similar displays. To do otherwise would be a de facto establishment of religion, where only one religion has exclusive access to public property and public time. I hope this one gets overturned on appeal.
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I wonder when the Republicans are going to show up wailing about "activist judges..."
(Better not to hold my breath, I think.)
A very bad ruling. I've been reading about this one for the past few days. From what I can tell the reasoning seemed to be that if Board doesn't invoke the name of Jesus, then it's just a ceremonial prayer that isn't really religious at all (sort of like the argument for the Ten Commandments being shown in a courthouse based on it being a "historical document" not as a religious one). So they can pick who leads the prayers since the prayers are just ceremonial. Or at least that's the impression I got from reading about it. Nevertheless, if the christian can lead the prayer without invoking the name of Jesus, I don't see why the wiccan can't do the same without invoking her god/goddess.
Matthew-
I think the main point was that since the board is invoking the "prayer" for itself and not for the benefit of the people in general, that the legal standard for legislative prayer as outlined in Marsh v. Chambers applies.
Whether they make a good case for that is another question.
What baffles me is how a County Council (Board of Supervisors, whatever) manages to let something as trivial as this get dragged through the courts all the way to the Circuit Court of Appeals. It's not like these things aren't expensive and distracting. I can't imagine being on the Board and sitting still while someone planned to make a major issue out of the opening prayer of all things. If it bothers people -- and it's impossible to come up with a prayer that doesn't bother someone -- why not just scrap the damned thing? Is Chesterfield county so devoid of actual problems that they can waste time and money on this?
Dave S. wrote:
Seems a difficult case to make to me. Unlike the Congress, where invocations generally are given before an empty room but for a few staffers walking to and fro, a county supervisor's board is a place where the public has to come to interact directly with the council and bring matters to their attention. In addition, there are some major differences between the situation in Marsh, the most obvious of which is that the Marsh decision did not involve explicit viewpoint discrimination done on theological grounds. I know you're not arguing in favor of the decision, I'm just pointing out the problems with using Marsh as the controlling precedent.
Steve wrote:
"...something as trivial as this get dragged through the courts..."
This is not a trivial issue for many reasons. I worked on the American Indian Freedom of Religion Act during the 1970's. Many of the legal foundations, upon which the legislation was based, and from which subsequent court rulings have become precedental(Native American Church, various Ayahuasca ritual practices, the necessity of American Indian chaplains in the military and in prisons, etc.) are predicated on the understanding that no one religion is hierarchically more important than another--Judeo-Christian-Islamic traditional forms are not paramout to, or chosen before, other religious sects. Here we now have a new Appeals Court case opinion saying otherwise; this bodes poorly for many aspects with regard to the exclusionary clause.
Spyder, I didn't mean to imply that the case itself is trivial. I too feel strongly about it. What I meant was that from the standpoint of the County Council, and its presumed mission, whatever kind of opening prayer you have is trivial. If I were on the Council, I'd be pretty pissed, not just because they're doing the wrong thing, but because they chose to make a stink about something that has nothing to do with what they're supposed to be doing. The Council's job should be tackling the pressing issues that affect Chesterfield county, not making themselves into a test-case for a 1st Amendment dispute. If the councilmen cared about their actual duties, they'd have done their best simply to avoid controversy, given that the prayer thing isn't relevant to their job description.
Michelangelo said: Nevertheless, if the christian can lead the prayer without invoking the name of Jesus
Yeah right, the day a christian can lead a prayer without invoking the name of Jesus is the day the christians can elect a Pope in the same room with a bunch of naked pictures. It just ain't going to happen.
Marsh v Chambers abstracted here, appears to give the precedent for the case. If the Nebraska legislature is allowed to pick the chaplain to hire based on the persons religious background, then the Chesterfield County Board of Supervisors can choose volunteers for their invocation based on religious considerations as well.
CHIEF JUSTICE BURGER delivered the opinion of the Court. This practice was justified almost entirely on historical precedent:
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Until the Supreme Court decides a case more in line with the Brennan and Marshall dissent, the Appeals Courts would have to follow Justice Burger's historically based first amendment exception.
This is truly an astounding decision--I heard about it a couple of days ago--but one point that seems to be overlooked.
The case required the courts to determine what is or is not an "establishment of religion." It recognizes that government has the power to determine what is and is not an "establishment of religion." And what is and is not entitled to the 1st amendment protections.
Um, OK. So just remember that the next time that you read--and possibly complain about--the fact that Germany, which doesn't have anything similar to the 1st Amendment, has banned, for example, the Church of Scientology.
Here is another one of those cases. This one is interesting in the Supreme Court's decision to hear the case, prior to their being a trial in the case. If the SC rules that the US government can ban the importation of the ritual, then the government can proceed with the criminal aspects of the case.
http://www.nytimes.com/2005/04/19/politics/19scotus.html?th=&emc=th&pagewanted=print&position=
WASHINGTON, April 18 - The Supreme Court added an important new religion case to its docket on Monday, agreeing to decide whether the government can ban the importation of a hallucinogenic tea that is central to the religious rituals of a small Brazil-based church.
The case raises the broader question of how the court will interpret, in the context of an illegal drug, a law that ordinarily requires the federal government to refrain to the maximum extent possible from interfering with religious practices.
The case is an appeal by the Bush administration of a federal court injunction won by the 130 members of the church's American branch, who brought a lawsuit five years ago to prohibit the government from invoking the Controlled Substances Act to block the importation of their tea and from seizing the sacred drink. The church, which combines elements of Christianity and indigenous Brazilian religion, opened its American branch in Santa Fe, N.M., in 1993.
A trial has still not taken place, a fact that would ordinarily pose an obstacle to Supreme Court review. In fact, on Dec. 10 of last year, the justices denied the administration's request for a stay of the Court of Appeals order until the solicitor general's office could prepare a formal petition for Supreme Court review. The denial of a request for a stay in those circumstances is usually a strong signal that the Supreme Court will not consider the eventual appeal to be worthy of its attention.