8.24.2006
Religious Freedom and The Law
Marci Hamilton, law professor and author of "God vs. the Gavel: Religion and the Rule of Law" takes a look at two recent decisions of the United States Court of Appeals for the Fourth Circuit that deal with religious freedom. One case deals with a public school's refusal to allow evangelistic literature to be handed out, the other is the famous (at least famous for modern Pagans) Simpson v. Chesterfield Co. case in which Cynthia Simpson was excluded from a list of religious leaders allowed to pray at Board of Supervisors meetings because she was Wiccan. The proselytizing case was won, the Wiccan case lost.
"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."
While Hamilton ably argues why these two decisions were judicially in error, she also believes that the outcome of these cases are part of a larger strategy by conservative Christian groups to re-insert Christianity into the public sphere.
"Turning to the political context, the CEF case was brought by the Christian Legal Society on the merits, with the National Legal Foundation, another Christian organization, submitting an amicus (friend of the court) brief...The political reality is that these organizations are using equality principles to further Christian ends; except in the courts, their devotion is not to equality, but rather to Christianity above all other faiths. (If one knows the political lay of the land, it should come as no surprise that the NLF supported the Board of Supervisors against the Wiccan preacher, in the Simpson case. So much for the principle of equal treatment of religious groups by government.)... Here, equality is little more than a litigation tactic. Christian groups such as these quite publicly have made clear that they want to roll back the Establishment Clause in order to empower Christianity."
One can clearly see the battle lines of this growing Christian "equality" movement. On one side are groups like the National Legal Foundation and the Christian Legal Society on the other is The Hindu American Foundation, The Buddhist Peace Fellowship, and other minority faith groups who submitted amicus briefs on behalf of Cynthia Simpson. Hamilton argues that if real "equality" were at play both cases would be re-examined.
"If equality is the principle at play, then Simpson was clearly wrongly decided: The Wiccan preacher ought to have had the same access as all the others had. If the Establishment Clause is of any continuing value, both cases need to be re-examined - for public schools should not be required to distribute proselytization, any more than other local government entities should be allowed to get away with public and intentional religious discrimination."
Currently the Fourth Circuit is dominated by Republican appointees (and a majority of those Bush picks). Is this a taste of a Christian judiciary to come if another president with Bush's ideology is elected? What is obvious is that the current legal attitude of the Fourth Circuit won't benefit the legal struggles of religious minorities in America.
Labels: Paganism
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