Is the Constitutional right to protection of “freedom of religion” about to go down the drain in the United States? See update below! Check out this tarot reading on the subject by Donnaleigh.
Did you know that freedom of religion actually functions on a two-tier basis in California? And that some religions do not have the same rights as others? That’s correct. Not all religions have equal rights in California and the situation may be about to set a legal precedent.
In the on-going case of Patrick M. McCollum, et al., v. California Department of Corrections and Rehabilitation, et al., the CDCR, other related defendants, and the Assistant Attorneys General of California, in one of their first arguments to the court said that certain “traditional” faiths are first tier faiths and that those faiths were meant to have equal rights and protections under the United States Constitution, but that all of the other faiths were second tier faiths, and were not meant to have the same equal rights and protections under the United States Constitution as the first tier faiths.”
This “two tiers” argument was echoed by a recently filed amicus brief by the WallBuilders’, which claims that modern Pagans have no expectation of Constitutional protection under the religion clauses.
“The true historic meaning of “religion” excludes paganism and witchcraft, and thus, does not compel a conclusion that McCollum has state taxpayer standing … paganism and witchcraft were never intended to receive the protections of the Religion Clauses. Thus, in the present case there can be no violation of those clauses … Should this Court conclude that McCollum has taxpayer standing … this Court should at least acknowledge that its conclusion is compelled by Supreme Court precedent, not by history or the intent of the Framers.”
This is not about paganism and witchcraft. It’s about people of one set of religious beliefs getting to dictate which other religions get rights under the law and which ones do not, here in the United States. Although the court case itself is about overcoming what McCollum has called an “endemic” level of religious discrimination against minority faiths in our prison system, the results of the case can set legal precedents affecting our Constitutional protection of “freedom of religion” throughout the legal system.
Keep up with the case and find out what you can do at WildHunt.org.
Hear a podcast interview of Wiccan priest, Patrick McCollum by Anne Hill on Beliefnet. McCollum discusses many things that won’t be found in the text articles.
See ReligiousTolerance.org for their assessment that, based on percentage, Wicca is the fastest growing religion in the United States and Canada. Other websites differ, however most analyses do not include Wicca at all in their comparisons.
UPDATE CHANGED: I have seen an explanation that the WallBuilders’ amicus brief is based on McCreary County v. ACLU, 545 U.S. 844, 885-90 (2005)—during which there was an attempt to say that the Framers intended “religion” to mean either Christianity or monotheism. Stephen G. has just sent me the following correction:
I’m *very* happy to reassure you: the Supreme Court did *not* declare that the Framers intended “religion” to have a limited meaning; certainly, its meaning was not limited to Christianity or monotheism.
There were three opinions in the McCreary case; taking them in reverse order: (3) the dissent — written by Scalia, fully joined by then-Chief-Justice Rehnquist and Thomas, and only partially joined by Kennedy — included the language you’re understandably concerned about. But keep in mind this was a dissenting opinion, so it has no force of law. And fwiw, Kennedy did not join the offensive material in the opinion, which was confined to Part I; his joinder was limited to Parts II and III. (2) In a concurring opinion, O’Connor joined the majority, while adding some comments that didn’t go directly to the problem you’ve identified. (1) The majority opinion — written by Souter; joined by Stevens, O’Connor, Ginsburg, and Breyer — very pointedly slammed Scalia’s dissent for insisting the Framers endorsed monotheism/Christianity.
Bottom line: as of McCreary, the score was 5 to 3 in favor of a non-exclusive reading of “religion” for purposes of the Establishment Clause. And the 5 made constitutional law binding all courts in the US. I checked a USSC database for “monotheis*”; no cases since McCreary. So it looks solid. Of course, if you remove Rehnquist and O’Connor, the score becomes 4 to 2. But even if Roberts and Alito took the dark side on this issue, it’s also clear that Kennedy wouldn’t; he refused to endorse Scalia’s endorsement of monotheism.
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February 26, 2010 at 6:50 pm
Kafka's Ghost
This sounds like a job for the American Civil Liberties Union, if they are not already involved.
*tearing hair out*
February 26, 2010 at 11:06 pm
Irk
Not being a California resident I’m not sure where to start taking action for your state, but someone who is one can start right here at the ACLU’s site, I think:
http://www.aclu.org/affiliates
You find your state affiliate and work from there. California has several regions, so I’m not sure what to do there. A local’d probably be more deft with this.
February 27, 2010 at 1:11 am
mkg
Several of the articles list the different national organizations that are working with the case. I don’t have access to the lawyers. Currently McCollum, et al. have been denied “standing,” which means that a judge determined he didn’t have the qualifications to sue—which I think means that he never “qualified” as a ministerial employee for the prison system. This is being appealed.
February 27, 2010 at 7:29 am
Paul Nagy
One reason I went to a traditional seminary in the late 1980s was to get the M.Div. degree so I would not have to worry about standing or recognition if I decided to invent a religion. (I also went to seminary as an attempt to try to become reconciled to the best possibility of what Christianity could be. I have to confess that it did not work and I can say from some knowledge and faith that I am not a Christian as Christian’s determine it, nor would I want to be.)
Years of electing questionable politicians and years of appointing rightwing jurists has created some seriously faulty versions of constitutionalism becoming normative nationally and in the States. The so called “original intent” as a limitation on how to reinterpret laws to changing social practice and mores is being used daily in the courts to attract aspects of human rights. Freedom of worship and creating second- order religions has been a judicial practice for decades. The prohibition of peyote use in the Native American Church has held up in the courts for decades.
In European and International law Human Rights scholarship and legislation has gone well beyond the so-called American Constitutional protections especially as being artificially limited by our conservative courts. Politically we need to protest and resist such misuse of the courts to abridge freedom of worship. (The excuse being the rampant use of new religions as a way of avoiding taxes; somewhat true but mostly trumped up by boogieman-seeking jurists, vigilant to make sure Joe citizen isn’t shirking his fiscal duty to the behemoth, warfare state.) Personally however my response, especially these days, is to worship and practice one’s religion as if the State does not exist. Seek nothing from the State and the State will ignore you.
When in seminary I met a fellow who was there because he was driven into personal financial ruin because he had started his own church. The judge said because he did not have a theological education, he was not qualified to found a church. It is a bogus point-of-view that unfortunately had terrible teeth because of the power of the court behind it. The fellow lost all the churches income and property and all of his own too. Some Baptists became aware of the persecution and offered him a scholarship to seminary where I met him and heard his story.
In the long term two-tiered religion test will lose out as it is frankly a judicial way of determining what a religion is, that in fact has the force legislation to limit religious self-determination. Jurists like legislators do not have the right to abridge human religious choice as long as it does not harm persons or property.
February 27, 2010 at 8:26 am
Kafka's Ghost
>>In the long term two-tiered religion test will lose out as it is frankly a judicial way of determining what a religion is, that in fact has the force legislation to limit religious self-determination.<<
I hope this is true and that the court realizes what a slippery slope this presents.
(mkg, I confess to having just scanned the articles, but I would be surprised if the ACLU were not involved; will continue to follow with interest…)
February 27, 2010 at 8:37 am
Helen
Hmmm. If one looks at the way things were originally set up in Pennsylvania, they’d find that there, at least, pagans and witches WERE intended to be protected.
Thanks for alerting us all to this!
February 27, 2010 at 2:24 pm
mkg
Helen – Can you tell us more about your intriguing comment that pagans and witches were intended to be protected as freedom of religion in Pennsylvania?
Paul – I agree with you that it’s best to keep one’s religious matters away from state concerns. However, there are times when this is not practical. If you are ministering on a regular basis and maintaining a center for your flock then there are certain rights that are yours as much as that of the church on the main street. My understanding is that McCollum is long-established and well-trained as a Wiccan priest.
BTW, pagans now have an excellent seminary with professional teachers of the highest caliber in Cherry Hill Seminary.
February 28, 2010 at 12:55 pm
Beth Owl's Daughter
Thank you for publicizing this case to a wider audience, Mary. It is a very important story that the mainstream media is not giving as much attention to as it should. (I know.. what else is new?)..
And thank you also for letting your readers know about Cherry Hill Seminary, the only resource of its kind in the world. They deserve a lot more recognition (and support!), in my opinion!
March 2, 2010 at 10:49 pm
Anne Hill
Hi Mary,
Thanks for letting people know about my interview with Patrick on Dream Talk Radio. Speaking of which, I would love to have you on the show, too!
At Pcon I mentioned my friend Dyane Sherwood’s beautifully illustrated book “Transformation of the Psyche: The Symbolic Alchemy of the Splendor Solis.” They reproduced 22 plates from the illuminated manuscript of 1582 for the book, with outside financial help from the Life Balance Institute. The publisher is Brunner-Routledge. Maybe this will be helpful for your new project–I certainly am looking forward to seeing the finished product!
Dyane is also the editor of the Journal of the SF Jung Institute. Given that the “card reader” is such a vibrant archetype, she may be interested in publishing an article based on your research.
March 3, 2010 at 10:23 am
Lalia Wilson
The best chance for religious freedom in this case is to broaden it to wider than just Pagans or Wiccians. Many other religions are polytheistic, especially when examined by Fundamentalist Christians. These would include Hinduism and Taoism…
Among fellow travelers, who would be supportive of the religious freedom issue, are the Unitarian-Universalists who uphold “earth-centered spirituality.”
Finally, please, PLEASE, disabuse all those Traditionalists (Fundamentalist Christians) about the Founders. The whole reason we have separation of Church and State is because the Founders did not agree. Get that? DID NOT AGREE about all the questions regarding religion. They agreed to disagree. So coming back now and saying all these things about the glorious days of 1776 when everyone believed in ONE TRUE GOD is false. No everyone did not agree. And those who did saw Him in different ways that they would have fought over if one person’s view had become the Law of the Land.
May we move forward to tolerance and understanding!
March 27, 2010 at 12:50 pm
Donnaleigh: Tiering and Tearing of Religions : All The News, That's Fit To Predict!
[…] On February 26, 2010, Mary K Greer wrote a provocative blog describing how, in California, freedom of religion actually functions on a two-tier basis, and that some religions do not have the same rights as others. Mary’s insightful blog on second tier religions can be read HERE. […]