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We at the Witches' Voice are continually compiling a important reference documents, form letters that you can use in your local fight for YOUR freedom... Note: The Witches' Voice Inc. does not offer legal advice nor are we qualified to do so. This document does not constitute legal advice but is intended to be used in conjunction with the legal services of an attorney licensed to practice in your state. This document can be copied and distributed to your lawyer should you decide that you need the services of one.


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Darla Kay Wynne v. Town of Great Falls, et al
The United States District Court Decision
by Dana D. Eilers, Attorney


Note: On July 22, 2004, the United States Fourth Circuit Court of Appeals has affirmed the federal district court decision in Darla’s case. Another article analyzing the Fourth Circuit opinion and subsequent reactions will follow.

Darla Kaye Wynne practices the Wiccan faith and lives in Great Falls, South Carolina where the members of the Town Council and the Mayor are all Christians. Praying in Christ’s name at the beginning of the Town Council meetings is usual stuff, and the citizens who attend usually stand and bow their heads. Darla went along with this . . . for a while, and then she stopped bowing her head, which brought on questions from Town Council members about her beliefs. When she came late to a meeting to avoid the prayer, she was not allowed to participate in the Town Council meeting even though she had signed up to speak at the meeting and was listed on the agenda. Objecting to the repeated references to Jesus, Christ, and Jesus Christ in the Town Council prayers, Darla proposed that the prayer references be limited to “God,” or that members of different religions be afforded the opportunity to give prayers. The Mayor effectively told her that this is how it was, how it always had been, and how it was going to stay. Citizens filed letters and petitions to the Town council indicating that they favored opening the Town Council with Christian prayer and that folks were opposed to allowing alternative prayers from a “self proclaimed witch.” Now, people were not only standing up, they were also throwing in “hallelujah’s” for good measure. (1)

Darla Kaye Wynne filed a lawsuit to enjoin the Town Council’s practice of praying to Jesus Christ at the start of Town Council meetings. Thereafter, the Town Council adopted a Resolution regarding prayers at the meetings, but Mayor Starnes testified at trial that nothing in the Resolution would prohibit further specific references to Jesus, Jesus Christ, or Christ in future opening prayers at Town Council meetings. The trial in this matter was not to a jury, but to a United States Federal District Judge on July 11, 2003 and on August 21, 2003, Judge Currie entered judgment in favor of the self proclaimed witch, Darla Kaye Wynne, (2) and entered an Order which enjoined the Defendants (and those in active concert or participation with them who received actual notice of the injunction) from “invoking the name of a specific deity associated with any one specific faith or belief in prayers given at Town Council meetings . . . .” (3)

Chalk up one for our side. The Witch won . . . at the trial level. The case is being appealed by the Town (no surprise there), and Town Attorney Brian Gibbons has been quoted as saying that this case “potentially could have a snowball effect for every city council, county council and school board around.” (4)

This is not the only case of its kind out there. Cynthia Simpson, a Wiccan who asked to be put on the list of Clergy giving opening invocations at meetings of the Chesterfield County, Virginia Board of Supervisors, filed a similar suit in the United States District Court for the Eastern District of Virginia. (5) On November 13, 2003, Federal District Judge Dennis W. Dohnal entered his Memorandum Opinion in Cynthia Simpson’s case (Civil Action No. 3:02CV888) Not unsurprisingly, Judge Dohnal ruled in Ms. Simpson’s favor. Should the Simpson case be appealed, it will also go to the Fourth Circuit Court of Appeals, the same court which rendered a landmark case for Wiccans in 1986: Dettmer v. Landon, 799F.2d 929 (4th Cir. 1986).

What on earth makes city governments and their administrative bodies think that they can engage in this sort of behavior? Even though the First Amendment of the United States Constitution forbids the establishment of religion by government, there is a narrow exception carved out for legislative prayer and established by the United States Supreme Court in the case of Marsh v. Chambers, 463 U.S. 783 (1983). According to the Marsh case, prayers offered for legislative bodies are permissible if they 1.) do not include references to specific deities, such as Jesus in all his appellations; 2.) reference only “God”; and 3.) are not used to proselytize, advance, or disparage any faith or belief (that is, they cannot stem from “impermissible motive.”) See Marsh, supra, at pages 794-795.

In order to justify this narrow exception to the Establishment Clause, the Supreme Court looked at the practices and intentions of the draftsmen of the federal constitution. In so doing, the Court found that these Founding Fathers utilized legislative prayer. See Marsh, supra, at pages 786-790. Specifically, the Supreme Court noted: “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” See Marsh, supra, at page 786. Additionally, the Supreme Court looked at the history of legislative prayer in the state of Nebraska and declared that a long historical tradition of the practice existed in the state, as well. See Marsh, supra, at pages 793-794. The Supreme Court was very careful to note, however, that mere historical patterns would not justify contemporaneous violations of constitutional guarantees. See Marsh, supra, at page 790. (6)

Of course, using bare history to justify a governmental action is not unknown to the Supreme Court. They used this tactic to outlaw the Mormon practice of polygamy in 1878. (7) I would also like to point out that grossly unconstitutional practices such as slavery were also part and parcel of the lives of the Founding Fathers. For example, Thomas Jefferson was a slave owner, and the issue of slavery nearly broke the back of the Constitutional Congress. Later, it did split the nation, and the resulting quarrel over state’s rights led to the Civil War. Obviously, deeply ingrained historical practices offer no guarantee that a longstanding tradition, such as that of legislative prayer, is permissible under the Constitution. I am not alone in this belief. Supreme Court Justices Brennan, Marshall, and Stevens dissented vigorously in the Marsh case.

Using the Marsh case, at least one federal court has held that references to Jesus Christ in legislative prayer violates the Establishment Clause of the First Amendment. See Bacus v. Palo Verde Unified Sch. Dist. Bd. of Education, No. 99-57020, 2002 WL 31724273 (9th Cir. Dec. 3, 2002 [unpublished opinion]). At least one state court has made a similar finding. See Rubin v. City of Burbank, 124 Cal. Rptr.2d 867 (Cal. Ct. App. 2002).

So, with respect to Ms. Wynne, what was it about the evidence presented in her case that persuaded Judge Currie to decide in her favor? (8) First, the specific references to Jesus, Christ, or Jesus Christ in the Great Falls Town Council prayers advanced a “fundamental belief of Christianity, not shared by those following other faiths.” Under Marsh, where the legislative prayer analyzed by the Supreme Court did not contain any such references, these specific references to the Christian Savior simply do not pass constitutional muster, and Judge Currie pointed to the Bacus and Rubin cases in particular. In short, when a governmental body prays in Christ’s name, it is proselytizing and advancing Christianity over all other religions, which is forbidden under Marsh.

Next, Judge Currie found that prayers specifically referencing Jesus were used to open a majority of the Town Council meetings. Also, when reconsidering its policy as to prayer, the Town Council was showered with letters and petitions supporting the use of “Christian” prayer to open meetings. Additionally, the Town Council rejected Ms. Wynne’s suggestion that the prayer delete the references to Jesus and refer only to “God.” The Town Council also rejected her proposition rotating references be made to other deities.

Importantly, Judge Currie highlighted Mayor Starnes’ trial testimony that the prayer Resolution adopted by the Town Council would not prevent the Town Council from continuing to pray to Jesus Christ. Further, Mayor Starnes noted that all the council members were Christian and that until someone from another faith was elected, the prayer probably would not change. Judge Currie specifically found that as a member of the public, Ms. Wynne’s ability to participate at the Town Council meetings was adversely affected by her refusal to accept the tradition of Christian prayer promulgated at the meetings.

Judge Currie did not buy the argument that the prayer was only for the council members, either. In fact, the Resolution adopted by the Town Council specifically stated that the invocation could request divine guidance not only for the town and its officials, but also for the citizens when conducting town business. The prayer was also listed on the written agenda as the first item of business to be conducted at the meetings.

Looking at these facts and straining them through the cases on the topic, Judge Currie found that the Christian prayers to Jesus utilized by the Great Falls Town Council were unconstitutional. The Witch won. The town lost. Even though the town is appealing, my personal thought regarding the appeal is that it will not be successful. Judge Currie’s opinion was detailed, set forth the important facts which supported his decision, and amply discussed the law involved. This was obviously a carefully considered opinion. The appeal in this matter bears watching and if the decision of the federal appellate court is reported in the National Court Reporters, there will be yet another landmark reported case for Wiccans and Pagans in this country. Thank you, Darla.

Dana D. Eilers
Email: revdana@mindspring.com

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.


ENDNOTES
  1. The facts of the underlying matter presented in this article are taken from the Findings of Fact made by United States District Judge Cameron McGowan Currie of the United States District Court for the District of South Carolina, Rock Hill Division and filed on August 21, 2003 in Cause Number 0:01-3409-22, being the case of Darla Kaye Wynne v. Town of Great falls, et al.

  2. Darla, by the way, is certainly not some brothers Grimm witch living on the outskirts of town in a hut made of chicken bones. At the time, Darla was the Assistant National Director for WARD (Witches Against Discrimination). In addition to her work for WARD, Darla is also quite active in the South Carolina Department of Corrections as a Wiccan volunteer in the prisons, working under the auspices of the Director of Chaplaincy Services.

  3. From the Conclusion of Law and Order of Judge Currie, entered August 21, 2003.

  4. Attorney Brian Gibbons, from "Town Appeals Jesus Prayer Ban," Marantha Christian Journal, found at http://www.mcjonline.com/news/03a/20030901c.shtml.

  5. This is the case of Cynthia Simpson v. Chesterfield County Board of Supervisors, United States District Court for the Eastern District of Virginia, Richmond Division, Docket Number 3:02CV888.

  6. This aspect of the Marsh case was emphasized by the Supreme Court in the later case of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 603 (1989).

  7. See Reynolds v. United States, 98 U.S. 145 (1878).

  8. It is important to remember that the federal judge made his decision based on the evidence presented in the case. In that section of his decision entitled "Findings of Fact," Judge Currie sets forth 20 salient facts culled from the evidence upon which he made his determination.


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