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Article ID: 3612

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Age Group: Adult

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Paganism and the Law

Author: Dana D Eilers
Posted: September 9th. 2001
Times Viewed: 14,742

The source for religious freedom is the United States Constitution and specifically, the First Amendment which states simply: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The opening clause of the First Amendment is commonly known as the "Freedom of Religion" clause or the "Establishment" clause. By operation of the Fourteenth Amendment, the First Amendment is binding upon the states; however, most state constitutions have a similar phrase somewhere within them. So, an action which is in violation of the federal constitution will usually be a violation of the state constitution, as well, thus giving a potential litigant dual causes of action: one in federal law and one in state law.

This does not automatically entitle Pagans to wave athames in public parks, run around naked, or have multiple spouses anymore than it entitles members of certain other religious groups to deny their children medical care or to have multiple spouses. The courts and government have been in the business of putting restrictions on religion from the very beginning of our nation's history. Additionally, the only court that every court in this country is legally obligated to follow is the U.S. Supreme Court. Just because the 11th Circuit Court of Appeals says that an apple is an apple does not automatically mean that the Supreme Court of Massachusetts is obligated to say that an apple is an apple. Courts and legal precedent are tricky things, often misunderstood by lay people.

There is no United States Supreme Court case which declares Wicca a religion, or Paganism a religion, or the Temple of the Purple Klingons a religion. There are some state and federal court cases which are very favorable to Wicca and other Pagan spiritual traditions, however.

Various Wiccan traditions have been recognized by both the federal and state courts of this country. In those cases, the specific Wiccan tradition under scrutiny met the standards for determining what is a religion as set forth by the U.S. Supreme Court in such cases as Thomas v. Review Board, 450 U.S. 707 (1981); Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965) (please see Justice Douglas' concurring opinion therein where he mentions religions whose central figure is a goddess); Torasco v. Watkins, 367 U.S. 488 (1961); and United States v. Ballard, 322 U.S. 78 (1944). An excellent case which sets forth guidelines for "what is a religion" is the case of Int'l. Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981). What should be patently obvious here is that courts can and do routinely determine what is, and what is not, a religion for purposes of the First Amendment.

Courts which have specifically considered Wicca have found it to be deserving of First Amendment protection. The hallmark federal case is Dettmer v. Landon, 617 F. Supp. 592 (Dst.Ct. East. Dst. Va. 1985) and affirmed by the Fourth Circuit Court of Appeals at 799 F.2d 929(4th Cir.1986). The state courts have taken a similar position: Roberts v. Ravenwood Church of Wicca, 249 Ga. 348, 292 S.E.2d 657 (Ga. 1982). The United States Supreme Court has specifically recognized the validity of another alternative religious tradition, which is arguably Pagan: Santeria, which is an amalgamation of traditional African nature religions practiced by the Yoruban people and some elements of Roman Catholicism. This was the case of Church of Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City of Hialeah, 508 U.S. 520 (1993). Therein, the United States Supreme Court asserted: "...we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general." Id., at 533. It should be noted that the courts which have considered Wicca have used that term synonymously with Witchcraft. Thus far, in most legal cases, no distinction between the two has been made. Thus, it can be asserted that modern Wicca/Witchcraft enjoys First Amendment protection.

The United States Military Courts of Justice have spoken upon the subject of Wicca/Witchcraft. The United States military courts have upheld the rights of Wiccans and have found Wicca to be a bona fide religion meritorious of First Amendment protections: United States v. Phillips, 42 M.J. 346 (1995); and 38 M.J.42. Judge Wiss, who wrote the concurring opinon in that case, stated: "First, Wicca is a socially recognized religion. It is is acknowledged as such by the Army. See Dept. of the Army (DA) Pamphlet 165-13-1, Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplains (April 1980), revising A Pamphlet 165-13, Religious Requirements and Practices of Certain Selected Groups: A Handbook for Chaplains (April 1978). Further, it is acknowledged as such in courts of law."

Regarding the wearing of pentacles in schools, federal courts have considered cases involving the rights of public high school students to wear these emblems of faith, and in the landmark case of Crystal Seifferly v. Lincoln Park Public Schools, Cause No. 90-DV-60070-DT, United States District Court, Eastern District of Michigan, Southern Division, the defendant school board settled the lawsuit in which the right of an honor student to wear her pentacle was the central issue. That settlement included payment of over $14, 000 in legal fees to the ACLU, who represented Ms. Seifferly. This issue has been well litigated, and the rights of Wiccans to wear the pentacle as an emblem of their faith is well settled.

Wiccans have successfully sued employers for Title VII discrimination. See Kosten v. Family Health Management, Inc., 955 F. Supp. 898 (19970, aff'd. 124 F.3rd 373 (7th Cir. 1998). Therein, the Northern District court of Illinois specifically found Wicca to be a religion for purposes of Title VII. The most recent case is Robert Hurston v. Henderson, Postmaster General, U.S. Postal Service, 101 FEOR 3054 (EEOC , Jan 19, 2001).

If, however, you find yourself in a position where you believe that you have been or are being discriminated against based on your religious beliefs, you should procure the counsel of an attorney licensed to practice law in your state and from the jurisdiction in which you live. Representing yourself pro se is risky business. Pagan communities have been known to raise funds to pay attorney fees, and many lawyers will take a good case which has the potential for a favorable jury verdict on a contingent basis. However, there are time limitations regarding the length of time you have to litigate potential claims based on religious discrimination and if you wait too long, you will lose your opportunity for a day in court. Do not sit around too long bemoaning your fate because you are losing precious time. As lawyers would say: "The statute is running." This actually means that your time to bring your lawsuit is running out.

Regarding religion and child custody, the basis for determining where a child is placed in a divorce proceeding is governed by state law. Each state has its own set of statutes setting forth the factors to be considered in a child custody matter. However, the majority of states utilize a standard known as "the best interests of the child" in determining how to place a child when there is a dispute between the parents. The language of the particular statute will govern but in many cases, religion will be considered if an actual threat or a perceived threat to the welfare of the child through the religion of a parent can be found. Other states have statutes broadly phrased in terms of morality such that religion could be considered as a factor within the language of the statute. However, it should be noted that to remove a child from a home or a parent based solely upon religion is unconstitutional: "Court have repeatedly held that custody cannot be awarded solely on the basis of the parents' religious affiliations and that to do so violates the First Amendment to the United States Constitution . . . . " Pater v. Pater, 63 Ohio St. 3d, 588 N.E.2d 794 (1992).

If you are entering a court situation where it is remotely possible that your Pagan religious beliefs and/or practices are going to be in question, then you must be prepared to articulate your beliefs to the court and importantly, to your attorney, if you have one. If you have an attorney, then you are the source of education. Educate your lawyer. Prepare a list of resources such as books and websites and insist that your attorney read these before you go into court.

Once in court, understand that the judge in the court in which you are appearing is, more or less, omnipotent. The Judge can do as he/she likes. Your attorney must be prepared to make sufficient legal objections if proof you would like to enter is refused by the Judge. If the legal objections are overruled, then your attorney must make an offer of proof to preserve the record on appeal. There must be a reporter in the courtroom transcribing the testimony and proceedings. If the Judge commits reversible error, that error must be preserved for appellate purposes. Otherwise the error, no matter how awful, is lost and cannot be heard on appeal.

Once the Judge issues a final Order, then there will be a limited time within which to file a Notice of Appeal, assemble the Record on Appeal, and file the Appeal. As a general rule, continuances or extensions of time may be granted if applied for, but such requests must be filed within the specified time period. Usually, if you blow a date for filing an Appeal, then the merits of your case are lost.

The preservation of one's legal rights cannot be taken for granted. This is, as most minority groups can attest, an ongoing struggle which requires sacrifice and constant vigilance. We, as Pagans, are not the first to undergo this struggle. We will not be the last.

Dana D. Eilers

Bio:Dana is a practicing Witch and for seventeen years, was a civil attorney with trial firms and worked in the states of Missouri and Illinois. She is a Smith College graduate and a 1981 cum laude graduate of The New England School of Law. She is currently semi-retired from the active practice of law, but she serves as a member of the AREN Legal Resource team, has an active interest in Pagan civil rights, and has published articles both in print and on the internet.

Also See:

CASE ANALYSIS: Hurston v. Henderson, 2001 WL 65204


Dana D Eilers

Location: North Chatham, Massachusetts

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