Tuesday, May 17, 2005

Rewriting my earlier post on Simpson

I've been meaning to write a post about the 4th Circuit's recent decision in Simpson v. Chesterfield County Board of Supervisors. The case concerns the question of whether the 1st Amendment prohibits state or local governments from discriminating between religions when picking individual religious leaders to give legislative invocations in their chambers. The Fourth Circuit held that such discrmination is permissible. This may seem surprising - given the Fourth's conservative make-up - until you read the opinion and see that it is actually a 24-page defense of pro-Christian discrmination. Nonetheless, though I find the opinion deplorable and Harvey Wilkinson's provincial view of religion offensive, I'll be the first to admit that they pretty clearly were within the bounds of Constitutional doctrine as laid out in a Supreme Court Case from 1983, Marsh v. Chambers.

The facts of Simpson are pretty simple. The plaintiff is a Wiccan or witch, who lives in Chesterfield County and is an active participant and leader in her worship group (coven?). The County has a policy of inviting local religious leaders to give an opening prayer before each legislative session. At the beginning of the year, they send a letter to churches in the phone book. Those who respond get added to a list who then appear on their assigned day. In 2002, Simpson called the county and asked to be added to the list to lead the opening prayer. The county clerk and the county attorney denied her request, saying "Chesterfield’s non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." (page 5 of the opinion) According to Wilkinson's opinion, the Judeo-Christian God is "a divinity that would not be invoked by practitioners of witchcraft." After trying a number of times to have her name added to the list, Simpson sued in District Court, which upheld her claim. The County appealed to the 4th Circuit.

I encourage interested readers to take a look at the 4th Circuit opinion. I think it's the perfect example of what American jurisprudence will look like if the theocrats currently trying to take over our country ever gain complete control. I know that sounds extreme, but take a look. Here's a good example of what I'm talking about.

Near the beginning of the case, Wilkinson writes about the county's rejection of Simpson's request. He quotes the County's original response which denied her request because her invocation would be "inconsistent with the Judeo-Christian tradition." Not content to let this stand alone, Wilkinson adds that the Judeo-Christian God cannot be "invoked by practitioners of witchcraft." Wilkinson's decision to provide this basically approving addendum to the original statement certainly suggests that he agrees with the County's reasoning. He can squeeze this pro-sectarian discrmination into the Marsh mold because that holding basically asserts that as long as a legislature has done so traditionally, it's okay. Thus, because Chesterton County has traditionally had Judeo-Christian invocations, it may limit future speakers to Judeo-Christian representatives only. Wilkinson goes beyond this mere application of Marsh, however, to give us the following passage about why Simpson's claim is faulty (pp. 16-17 from the opinion):
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. See Marsh, 463 U.S. at 786, 792. 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." See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2322 (2004) (O’Connor, J., concurring in judgment); Allegheny, 492 U.S. at 625 (O’Connor, J., concurring in part); Lynch, 465 U.S. at 693 (O’Connor, J., concurring). [my italics]

Do you see what Wilkinson does? On page five he has basically approved the County's argument that non-Judeo-Christians cannot give adequate invocations because they do not invoke the Judeo-Christian deity. On page 16, he then does a mighty twist and accuses Simpson of denying the universality of legislative invocations given by other religious leaders. How did she do this? By seeking permission to give a Wiccan invocation.

In other words, the County denied Simpson the opportunity to give a Wiccan invocation, but she is the party guilty of ignoring "Marsh’s insight that ministers of any given faith can appeal beyond their own adherents." I could be wrong, but the Wilkinson seems to have embraced the theory that "non-traditional" religions cannot have universal appeal, but Judeo-Christian sects can.

It gets better, though. Read a little further (the next paragraph) and you come across this statement:
We cannot adopt a view [i.e. Simpson's 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.

This is just flabbergasting. In Wilkinson's view, not only has Simpson denied the universality of Judeo-Christian traditions, but she is attempting to "chop up American citizens on public occasions into representatives of one sect." You read that right. By asking to be permitted to give a religious invocation which, by the County's own policies, will not refer to any particular deity, Ms. Simpson is trying to divide Chesterfield County (and, presumably, America) into sects. By offering a public prayer as a Wiccan, Simpson is dividing our country, rejecting "common and inclusive themes", and promoting "the forbidding character of sectarian invocations." In other words, and this is the key to this opinion, the mere public invocation of non-Christian deities is divisve and serves to undermine our national and local Judeo-Christian traditions. As a result, according to Harvey Wilkinson, it is perfectly acceptable for states and localities to discriminate against non-Judeo-Christian sects in the context of legislative prayer.

The fact is, of course, that this is exactly what the Supreme Court permitted in Marsh. The disturbing thing is, Wilkinson takes 25 pages to paint an explicit picture in which Simpson is the usurper and the divider, and the Judeo-Christian tradition is under attack. Not suprisingly, this fits quite nicely into the narrative currently being promulgated by the radical Christian conservative movement in their efforts (such as Justice Sunday) to stack the judiciary with radicals and activists like Harvey Wilkinson: Christians are under attack and they have to seize the reins of government to push back the forces of evil and return America to its theocratic Christian roots.

With all that said, if you're looking for a more general rebuttal of the doctrine underlying the Simpson opinion, go read Justice Brennan's vigorous dissent in Marsh. It's quite a read, and provides an excellent discussion of the roots and purpose of the 1st Amendment with regards to religion and religiosity in our governing structures.

On a related note, take a look at this post from Matthew Yglesias and this post from Kevin Drum about the fact that liberals have won most of the important arguments about religion in the public sphere and that we ought to let some stuff slide. I find their arguments convincing to some extent, but think they overlook the fact that the right-wing in this country doesn't so much care about the presence of creches in courthouses as it does about re-writing constitutional and common law to include overtly Christian doctrines and worldviews.