Chapter IV: Paganism, Wicca and the Judicial System

by Jesse Potter aka Elkin Vanaeon
On this ninth day of August in the year of our Lord and Lady 2005 CE

By now, you've noticed that I'm a bit long-winded - I have a tendency to be thorough, which is one of my annoying characteristics. One of the main reasons for writing this book was to find a way of addressing the problems of paganism, especially Wicca, within the realm of Justice in today's society. I found it necessary to provide a background of factual history on the subject, in several different ways so there would be no room for error, to demonstrate the injustices committed against Paganism and the people of Wicca.

Paganism is and always has been viewed as a threat by monotheistic religions that have their own creation schemes, and beliefs of specific dogmas and doctrines. 'Pagan Religions', such as Wicca, are only now in this time period beginning to be recognized and protected as minority religions. Minority religions are protected under the First Amendment of the Constitution by the Federal Judicial branch of the United States Government and within the context of being a religion or belief under the mandate of the United Nations. The belief of and practice of paganism is listed as a "Human Right" recognized by over one hundred countries including the United States under Article 18 of the definition of 'Human Rights,' in the United Nations General Assembly resolution 217 A (III) the "Universal Declaration of Human Rights", which states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice,worship and observance."

Pagan Religions, such as the Religion of Wicca may be a minority, but have the same rights to full protection under Federal law that members of any other religion cherishes in the United States of America. Like many other religious minorities Wicca is under constant scrutiny by religious fundamentalists who oppose anyone's beliefs other than their own. Cases of religious persecution are presented to the courts for intervention when the rights of the individual or of a group have been denied. Mediation may resolve the problem before going to trial, but it may be only through the trial process that those violations and abuses against members of a religious minority can be resolved. Organizations such as the American Civil liberties Union and watchdog groups such as the Witches Anti-defamation League, the Witches League for Public Awareness, the Witches Voice, and many others provide assistance to members of Wicca who have such difficulties. Wicca has been declared a religion protected against government intrusion under the First Amendment of the Constitution numerous times and has two distinct but complementary protections for religious liberty:

The Establishment Clause - which prohibits governmental intrusion or entanglement into religious matters.
The Free Exercise Clause - which guarantees that each individual, may practice his or her faith freely, without governmental intrusion or scrutiny.

One recent case made history as a landmark decision concerning the protection and rights of a minority religion under the Constitution of the United States. It was of Santeria though, and not of Wicca: It was the "Church of Lukumi Babalu Aye, Inc. v. City of Hialeah No. 91-948 SUPREME COURT OF THE UNITED STATES Nov. 4, 1992 June 11, 1993 508 U.S. 520." Syllabus Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one of its principal forms of devotion. The animals are killed by cutting their carotid arteries, and are cooked and eaten following all Santeria rituals except healing and death rites. After the church leased land in respondent city and announced plans to establish a house of worship and other facilities there, the city council held an emergency public session and passed, among other enactments Resolution 87-66, which noted city residents' "concern" over religious practices inconsistent with public morals, peace, or safety, and declared the city's "commitment" to prohibiting such practices; Ordinance 87-40, which incorporates the Florida animal cruelty laws and broadly punishes "[w]hoever . . . unnecessarily or cruelly . . . kills any animal," and has been interpreted to reach killings for religious reasons; Ordinance 87-52, which defines "sacrifice" as "to unnecessarily kill . . . an animal in a . . . ritual . . . not for the primary purpose of food consumption," and prohibits the "possess[ion], sacrifice, or slaughter" of an animal if it is killed in "any type of ritual" and there is an intent to use it for food, but exempts "any licensed [food] establishment" if the killing is otherwise permitted by law; Ordinance 87-71, which prohibits the sacrifice of animals, and defines "sacrifice" in the same manner as Ordinance 87-52; and Ordinance 87-72 which defines "slaughter" as "the killing of animals for food" and prohibits slaughter outside of areas zoned for slaughterhouses, but includes an exemption for "small numbers of hogs and/or cattle" when exempted by state law. Petitioners filed this suit under 42 U.S.C. § 1983, alleging violations of their rights under, inter alia, the Free Exercise Clause of the First Amendment. Although acknowledging that the foregoing ordinances are not religiously neutral, the District Court ruled for the city, concluding, among other things, that compelling governmental interests in preventing public health risks and cruelty to animals fully justified the absolute prohibition on ritual sacrifice accomplished by the ordinances, and that an exception to that prohibition for religious conduct would unduly interfere with fulfillment of the governmental interest, because any more narrow restrictions would be unenforceable as a result of the Santeria religion's secret nature.

The Court of Appeals affirmed. HELD: By the Supreme Court, the judgment is reversed. 936 F.2d 586, (CA 11 1991) reversed. Opinions JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, IIA-1, II-A-3, II-B, III, and IV, concluding that the laws in question were enacted contrary to free exercise principles, and they are void. Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: it must be justified by a compelling governmental interest, and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied. (b) The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. That this religious exercise has been targeted is evidenced by Resolution 87-66's statements of "concern" and "commitment," and by the use of the words "sacrifice" and "ritual" in Ordinances 87-40, 8752, and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and exemptions demons. Ordinances 87-40, 87-52, and 87-71 are substantially under-inclusive with regard to the city's interest in preventing cruelty to animals, since they are drafted with care to forbid few animal killings but those occasioned by religious sacrifice, while many types of animal deaths or kills for non-religious reasons are either not prohibited or approved by express provision. The city's assertions that it is "self-evident" that killing for food is "important," that the eradication of insects and pests is "obviously justified," and that euthanasia of excess animals "makes sense" do not explain why religion alone must bear the burden of the ordinances. These ordinances are also substantially under-inclusive with regard to the city's public health interests in preventing the disposal of animal carcasses in open public places and the consumption of un-inspected meat, since neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. Ordinance 87-72 is under-inclusive on its face, since it does not regulate non-religious slaughter for food in like manner, and respondent has not explained why the commercial slaughter of "small numbers" of cattle and hogs does not implicate its professed desire to prevent cruelty to animals and preserve the public health. (d) The ordinances cannot withstand the strict scrutiny that is required upon their failure to meet the Smith standard. They are not narrowly tailored to accomplish the asserted governmental interests. All four are overbroad or underinclusive in substantial respects because the proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. Moreover, where, as here, government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the governmental interests given in justification of the restriction cannot be regarded as compelling. Within this specific case the Court tested:

The Church of Lukumi Babalu Aye, whose members worship of the religion of Santeria, and
The local laws and ordinances of the community against the Federal Laws of the Constitution, and
The moral and ethical views of the community.

The religion of Santeria and the members of the church were both declared having First Amendment Protection against local laws, ordinances, and improperly biased ethical views by the Community. Wicca as a minority religion, which doesn't practice animal sacrifices, may someday be placed on trial before the Supreme Court under similar circumstances. The animosity which fundamentalist groups and their members who work in local government is clearly evident, to the point of attempting the passage of local laws as well as Bills before Congress in an attempt to redefine the terms of the Federal Constitution. The difficulty they face is that to deny constitutional protection of one minority religion would also mean denying all other minority religions and probably most major religions as well. It is at this time I must point out that I am not a lawyer, attempting to teach law or give legal advice. I am merely pointing out legal decisions that have already been handed down and emphasizing common sense points of interest:

Religious freedom is one of the most fundamental aspects the 'United States of America' was founded on.
Within a trial pertaining to the violation of civil and religious rights, the case may require the testing of local, state and federal laws as well as the morals and ethics of all parties involved. Judgments made by a lower court may be contested through the appeal process to a higher court.
It does not require a declaration by Congress, the President of the Unites States of America, or a District or Supreme Court to determine whether a person or people who worship and practice their beliefs are to be considered a legal religion. A religion exists legally because of the legal existence of an individual or group who practice their religious beliefs. It is only in the need of judgements of harmful actions, by opponents to other individuals and their beliefs, that the legality of those harmful actions against those individuals right to practice their religious beliefs may be contested in a court of law. This requires a challenge and judgement to be made by the Judicial System of Courts only when constitutional rights, such as the First Amendment, are being violated against an individual or group so that restitution may be made.
'Common Sense' declares that just being in the right does not prevent injustice. The most horrendous crimes against humanity were violations of human rights that were not prevented, but merely judged after the fact either historically by peoples or by a court of law.
Within the United States, there is a State Supreme Court for every State of the Union. It is the responsibility of the judges to evaluate and maintains State Laws under their State Constitution. Those laws may be in direct conflict with Federal Constitutional Law. Unlawful judgements made by a State Supreme Court may be appealed to the Federal Supreme Court. - The Federal Supreme Court makes the final judgements in the determination of the validity of judicial decisions made by previous Courts in regards to the violation of:

Local, state and federal laws, and
Civil and religious liberties of an individual or group regarding the protection of Constitutional Rights in comparison to those laws.

Opponents to Wicca do not want this form of testing or especially the publicity!

Within The realm of Judicial Courts and Wicca there have only been a few cases testing the Religion of Wicca that have been brought before District Courts, these are a few:

1985 CE - Dettmer v. Landon. A 29 year old inmate incarcerated at the Powhatan Correctional Center in State Farm, Virginia claimed that his First Amendment right to the free exercise of his religion, the Church of Wicca, was violated by prison officials who refused to give him any access to his religion's worship materials. Prison officials said that the worship materials that Dettmer sought --candles; a statue; a white robe; incense; and either sulfur, sea salt, or un-iodized salt would be hazardous to prison security. The prison officials also claimed that the Church of Wicca is not a religion entitled to First Amendment protection. The decision reached by the District Court was that:

"Members of the Church of Wicca sincerely adhere to a fairly complex set of doctrines relating to the spiritual aspect of their lives, and in doing so they have 'ultimate concerns' in much the same way as followers of more accepted religions.
Their ceremonies and leadership structure, their rather elaborate set of articulated doctrine, their belief in the concept of another world, and their broad concern for improving the quality of life for others gives them at least some facial similarity to other more widely recognized religions.
While there are certainly aspects of Wiccan philosophy that may strike most people as strange or incomprehensible, the mere fact that a belief may be unusual does not strip it of constitutional protection. Accordingly, the Court concludes that the Church of Wicca, of which the plaintiff is a sincere follower, is a religion for the purpose of the free exercise clause."

1982 CE - Roberts v. Ravenwood Church of Wicca, (249 Ga. 348) in 1982. It was similar to Dettmer v Landon, below. The District Court of Virginia declared in 1985 (Dettmer v Landon, 617 F Suup 592 [E. Dst. Va.]) that Wicca is "clearly a religion for First Amendment purposes....Members of the Church sincerely adhere to a fairly complex set of doctrines relating to the spiritual aspect of their lives, and in doing so they have 'ultimate concerns' in much the same way as followers of more accepted religions. Their ceremonies and leadership structure, their rather elaborate set of articulated doctrine, their belief in the concept of another world, and their broad concern for improving the quality of life for others gives them at least some facial similarity to other more widely recognized religions."

1995 CE - United States v. Phillips, 42 M.J. 346, 349 (C.A.A.F. 1995) (quoting Army Chaplain's Handbook). In the case United States v. Phillips, (42 M.J. 346) in 1995). Establishment of a correct test was necessary in determining if there was an intent to punish or stigmatize a person awaiting disciplinary action, and if not, were the conditions in furtherance of a legitimate, non-punitive, government objective. The purposeful interference with a service-member's First Amendment Right was violated in his right to believe in a particular religion and to practice his religion, which resulted in necessary judicial intervention, due to illegal pretrial punishment requiring mandated relief of post-trial abuses. Statement of Judge Wiss's concurring opinion was: "First, Wicca is a socially recognized religion, it 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." 1995 CE - The Church of the Iron Oak vs The City of Palm Beach Florida. On December 1, Judge Anne Conway presided over case number 94-1043- CIV-ORL-22 at the United States District Court, Middle District of Florida, Orlando Division. The City of Palm Bay, Florida had cited Roger Coleman and Jacque Zaleski as "Ministers for the Church of the Iron Oak," for operating a church in a residence in a residential area without a variance. The City claimed the defendants were operating a church at a home (by having six festival celebrations per year in their back yard) despite the fact that all public church functions were held in Melbourne. The defendants brought suit, on October 11, 1994, against the City of Palm Bay, Florida in Federal Court asking for a Temporary Restraining Order against the City, which was denied. In the preliminary proceedings, the City testified that weekly outdoor barbecues are allowed, but not if they are combined with worship. The City of Palm Bay also stated that only one worship activity per year is allowed in a Palm Bay residence.

This position alarmed the local Christian community resulting in fourteen Christian ministers responding to support the defendant, recognizing their own weekly home services would be even a greater violation of this interpretation. (Two of whom testified at the hearing stating they regularly held public church services in their own Palm Bay homes). On November the 21st, the Code Enforcement Board voted UNANIMOUSLY NOT to charge Iron Oak ministers Jacque Zaleski and Roger Coleman with a zoning violation. In this particular case the trial was dismissed and the city paid court costs in order to prevent the case from appearing before a court of appeals on religious grounds.

March 22^nd1999 CE - Crystal Seifferly v. Lincoln Park Public Schools, Cause No. 90-DV-60070-DT, United States District Court, Eastern District of Michigan, Southern Division, U.S. District Judge Gerald Rosen declared the terms of the "consent judgment" as follows:

The words "Pagans" and "Witches" will be removed from the Lincoln Park policy.
An exception is made for students wearing "jewelry or other symbols in the profession of their religion."
Students do not need to initiate the contact informing the administration of their religious preference. If the administration or a security officer approaches the student, the student simply needs to inform them the symbols are for the professing of their religion.
The school agrees to pay the ACLU attorneys fees.
The school will republish the policy within five school days.

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. TWV Chairperson, Rev. Wren Walker stated, "This judgment should send the clear and concise message to all public school districts that policies which single out any religion, religious symbol or other mode of religious expression for restriction will not go unchallenged." "Religious freedom as guaranteed in the Constitution of the United States applies to all religions and religious beliefs equally. This right has once again been verified and reinforced here today." April 6^th 2000 CE - U.S. District Judge S. Hugh Dillin ruled that Elwood High School seniors Brandi Lehman and Shauntee Chaffin have a First Amendment right to wear a pentagram while working because it is a symbol of their religion, Wicca. He declared, "The school system of Elwood Indiana had violated the students' First Amendment rights to wear the symbols of Wicca, a nature-based religion. The Judgement was based on an earlier legal precedent by the seven-justice majority ruling of the U.S. Supreme Court in 1969, which stated that students (in Des Moines, Iowa, in 1965), wearing black arm bands to protest the Vietnam war had the right to do so as a form of "pure speech!" That kind of expression could not be banned unless it interfered with schoolwork or discipline. The ruling imposed a preliminary injunction on the Elwood Community School Corporation to allow the students to wear the Wiccan Pentacle. Two seniors at Elwood High School brought the suit against the school system saying they are followers of Wicca and had worn Wiccan pentagrams, an inverted five-pointed star, to high school and cadet teaching classes. They worked with regular classroom teachers in third-grade classes at Edgewood Elementary School as cadet teachers. Their lawsuit said they had been told by the principals of both schools not to wear their Wiccan pentagrams while working in the elementary school. The students said the prohibition prompted them to leave the teaching program. Cases pertaining to religious rights and freedom, which pertain to Wicca, are:

1972 CE - Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.");
1990 CE - Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1357 (D.C.Cir.1990) ("The Supreme Court has consistently recognized that the religion clauses are subject to a balancing of interests test [and] that certain civil rights protected in secular settings are not sufficiently compelling to overcome certain religious interests.")
1997 CE - Agostini v. Felton, 117 S.Ct. 1997, 2015 (1997), the Court revised its "Lemon" test, by folding "excessive entanglement" into its effect analysis. In so doing, however, the Court specifically related its concern to governmental conduct that could inhibit religion, if the government should become, in the Court's words, "excessively entangled" in religious matters. More to the point, the Court has barred the exercise of regulatory jurisdiction into religious institutions based on a concern that such jurisdiction inevitably would entangle the courts in religious matters. Indeed, as in NLRB v. Catholic Bishop, supra, the Court was concerned that the very process of regulatory inquiry could violate the Constitution.
1998 CE - Florida Religious Freedom Restoration Act of 1998 was enacted. This Act essentially clarifies and establishes the test requiring a compelling state interest for governmental entanglement or burden on religion under Chapter 761 RELIGIOUS FREEDOM Title XLIV CIVIL RIGHTS
1998 CE - U.S. Legal - Doe v. Evans, 718 So. 2d 286 (Fla. 4th DCA 1998), the Fourth District Court of Appeal concluded: "When a secular court interprets church law, policies, and practices it becomes excessively entangled in religion."
2000 CE - The Senate of the United States of America took up and passed by unanimous consent the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA S.2869) and signed into law by President Clinton in September 2000. The RLUIPA replaces Hatch's original bill the "Religious Liberty Protection Act (RLPA)," S. 2081. Although S. 2869 was narrowly constructed to remove the civil liberty concerns that were included in S. 2081, the new bill still threatens the historic rights of local governments to control local land use decisions by essentially exempting religious institutions from complying with local land use ordinances. The bill prevents local governments from applying their land use regulations in ways that substantially burden religious exercise, unless doing so serves a compelling governmental interest while imposing the least restrictive means.

I have covered many topics affecting the sociological and religious aspects of paganism and humanity. I have not written this book to be deliberately offensive though some may be offended in the telling of it. That is unavoidable since the real history of this world has been of people and their actions of intolerance towards each other, which are offensive. Please read on to the next group of chapters so that you may come to your own conclusions.

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