Religious-rights claims by Wiccans yield mixed results.

Believers in the Wicca religion may be in the minority, but recently they have played major roles in a pair of cases involving the Establishment Clause of the First Amendment.

In June, the U.S. Supreme Court declined to hear Wynne v. Town of Great Falls, a case that pitted a Wiccan against a South Carolina town council, ending a four-year legal battle. The Fourth Circuit had found that the town violated the Establishment Clause by including overtly Christian references in its opening prayers. (376 F.3d 292 (4th Cir. 2004).)

And in April, the Fourth Circuit ruled in Simpson v. Chesterfield County that the board of supervisors of a Virginia town can exclude Wiccans from its official list of clerics who are allowed to offer invocations or prayers at town meetings. The plaintiff is appealing to the Supreme Court. (404 F.3d 276 (4th Cir. 2005).)

The two opinions rely on interpretations of the High Court's decision in Marsh v. Chambers, which found that deliberative government bodies could include prayers as part of their meetings as long as the prayers were nonsectarian and did not overtly favor one religion or exclude others. (436 U.S. 783 (1983).)

The Wynne case began in 1999, when Darla Kay Wynne, a practicing Wiccan, began attending town council meetings. (Wicca is a neopagan religion based on ancient Celtic myths. Wiccans, who often refer to themselves as witches and are commonly viewed as Satanists, say they reject the notion of an evil deity.)

Wynne told the court that over time, the council meetings came to resemble religious ceremonies and that other attendees pressured her to take part in the prayers. Wynne asked the mayor if attendees could switch to nonsectarian language; he refused, saying the use of Christian prayer was a town tradition and that the majority of Great Falls residents were Christian.

Wynne said town residents and the mayor harassed her following her request. At one point, she testified, she was invited to speak at a meeting on an unrelated topic, but when the council discovered that she planned to open her talk with a nonsectarian prayer, it rescinded the invitation.

The town argued that Marsh allows prayers in the Judeo-Christian tradition and that, accordingly, its actions were permissible because there is "no meaningful distinction between the Judeo-Christian God or 'Heavenly Father' and a reference to Jesus Christ." It also contended that the prayers were not used to advance a specific religion but simply to benefit the council members themselves.

In an opinion by Judge Diana Gribbon Motz, the Fourth Circuit found that a legislative body may "invoke divine guidance for itself before engaging in its public business" but also that "the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. There have been breaches of this command throughout this nation's history, but they cannot diminish in any way the force of the command." Accordingly, the court ordered the town council to drop all references to Jesus or Christianity in its prayers.

"It was the explicit use of 'Jesus' that made Wynne clear-cut," said Robert O'Neill, a professor of law at the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression. "Since 1947 [when the Court decided Everson v. Board of Education (330 U.S. 1 (1947))], we have known that no government action that favors one religion over others, or religion at all over no religion, is allowable under the Establishment Clause."

Ayesha Khan of Americans United for Separation of Church and State, who was involved in both cases and is litigating Simpson's appeal, praised the Wynne decision but said that in Simpson, the Fourth Circuit "upheld discrimination."

The facts of the two cases are similar. Cynthia Simpson lives in Chesterfield County, Virginia, where the board of supervisors uses nonsectarian invocations during its meetings and maintains a roster of local clergy who are invited to give invocations before meetings. According to court records, the roster includes representatives of 235 Christian, Jewish, and Islamic congregations.

In 2002, Simpson asked to be placed on the list, saying she was the spiritual leader of her local Wicca congregation (called the Association of Broom Riders) and should be given the same opportunity as leaders of other religions. The board refused, saying its policy extended only to members of Judeo-Christian faiths. After repeated requests, Simpson sued the county, claiming violation of her rights to free speech and free exercise of religion.

The board argued that its practice of seeking divine guidance consistent with monotheistic Judeo-Christian tradition was "simply a tolerable acknowledgment of beliefs widely held among the people of this country." The city said it had reviewed Wicca in light of Simpson's request and found that the religion "invokes polytheistic, pre-Christian deities" and so did not meet the board's criteria for inclusion. Also, the board said it precluded establishment because it used a random "first-come, first-served" process for inviting speakers, which meant no religion was selected, or favored, over another.

The Fourth Circuit found that the board had adhered to the Marsh guidelines because it had a written, clearly worded policy about nonsectarian prayer and because its register included members of a wide variety of religions, such as Protestants, Catholics, Jehovah's Witnesses, and Muslims. The court specifically differentiated the case from Wynne, noting that in the latter, the prayers in question were "pervasively and exclusively sectarian in nature" and "violated even the spacious boundaries set forth in Marsh."

Furthermore, "Chesterfield, unlike Great Falls, did not invite the citizenry at large to participate during its invocations," Judge J. Harvie Wilkinson wrote for the court. The opening prayer was conducted "for the benefit of the board, rather than for the individual leading the invocation or for those who might also be present," so the county had followed the controlling standards of Marsh.

"Simpson struck me as a nondecision," said O'Neill. "It never had to contend with the issue that [Simpson] was excluded on the basis of her religious affiliation. The ruling stops short of fully facing the key question, which is: Is Wicca a religion for free exercise purposes? My general sense is that the lower courts are awaiting further guidance on this question."

Khan said, "This is a quintessential case of discrimination based on religion. It's pure and simple: Chesterfield County excludes all but Christian, Jewish, or Muslim religions, and the plaintiff is a Wiccan. The Fourth Circuit upheld the establishment of religious insiders and the exclusion of religious outsiders."

O'Neill noted that the two cases "were structured differently: Simpson is much more about free-exercise, while Wynne is very clear-cut--it's a case of overtly favoring one religion over another. They are capable of being reconciled, although not comfortably."

O'Neill said an upcoming Supreme Court case will be decisive. It involves the use of hallucinogenic tea in religious ceremonies. (O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004).)