Recognizing the Religious Rights of Wiccans, Witches, and Other Neo-Pagans

Opening the Broom Closet: Recognizing the Religious Rights of Wiccans, Witches, and Other Neo-Pagans I. INTRODUCTION..................................................................................136 II. BACKGROUND ON NEO-PAGANISM................................................... 138 A. WICCA AND NEO-PAGANISM: WHAT IS IT AND WHICH IS WITCH? ..........................................................................................................138 B. SIMILARITIES AND DIFFERENCES BETWEEN NEO-PAGANISM AND ORTHODOX RELIGIONS.............................................................................141 C. THE NEO-PAGAN STRUGGLE TO OVERCOME MILLENIA OF ERRONEOUS AND DEMEANING STEREOTYPES..................................148 D. THE RISE OF NEO-PAGANISM IN AMERICA..........................................153 III. NEO-PAGANISM ISA VALID RELIGIOUS BELIEF ............................... 155 A. HISTORY OF RELIGIOUS RIGHTS IN AMERICA....................................156 B. NEO-PAGANISM COMPORTS WITH LEGAL DEFINITION OF A VALID RELIGIOUS BELIEF......................................................................................159 IV. DENIAL OF PARENTAL RIGHTS BASED ON NEO-PAGAN BELIEFS..... 161 A. LEGAL PRECEDENT AND THE JONES V. JONES BACKDROP.............162 B. PARENTAL FITNESS OR RELIGIOUS PREJUDICE? THE IMPLICATIONS OF HICKS V. COOK.......................................................................................164 1. The Pretextual Foundations Used to Strip the Mother of Custody...................................................................................... 165 2. Revealing the Discriminatory Application of Judicial Power......................................................................................... 172 C. THE CONTINUING STRUGGLE OF COURTS TO NOT DISCRIMINATE AGAINST NEO-PAGAN PARENTS .............................................................177 V. TITLE VII’S OVER-ALLOWANCE FOR RELIGIOUS DISCRIMINATION BY RELIGIOUS ENTITIES AND ITS IMPACT ON NEO-PAGANS.................. 179 A. THE BACKGROUND OF TITLE VII’S RELIGIOUS ENTITY EXEMPTIONS................................................................................................180 B. THE RELIGIOUS ENTITY EXEMPTION V. THE ESTABLISHMENT CLAUSE: ROUND 2......................................................................................183 C. THE RELIGIOUS ENTITY EXEMPTION V. THE FREE EXERCISE CLAUSE..........................................................................................................185 1. Discriminatory Application of the Religious Entity Exemption to Neo-Pagans ......................................................... 186 2. Less Restrictive Alternatives to the Religious Entity Exemption.................................................................................. 191 VI. THE CAULDRON IN THE COURTROOM:EVIDENTIARY DISCRIMINATION AGAINST NEO-PAGANS ..................................................................... 192 VII. THE BROADER IMPLICATIONS OF RELIGIOUS INTOLERANCE ................................................................................... 199 135 136 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 32 I. INTRODUCTION Religious freedom is a core component of our nation and one of the most widely known and accepted constitutional guarantees provided by the First Amendment. No prior civilization had adopted a national policy that tolerated various religious beliefs while simultaneously refusing to endorse or promote a national religion. Justice Douglas, in the majority opinion of United States v. Ballard, summarized that the founders were well aware of the potential for religious divisiveness when “[t]hey fashioned a charter of government which envisaged the widest possible toleration of conflicting [religious] views. Man’s relation to his God was made no concern of the state.”1 Considering the fundamental backdrop of religious tolerance, it might seem unimaginable that a skilled medical technician could be fired from her job, an alleged victim of sexual abuse could have her credibility undermined in a court of law, or a mother could lose custody of her child, under the color of legality, because of their religious beliefs. Yet, the star- tling reality is that many courts have allowed for the disparate and discriminatory treatment of earth-based religious beliefs broadly labeled as Neo- Paganism.2 Courts have vastly inconsistent views in their recognition and treatment of emergent earth-based religions.3 While many courts fully and accu- rately recognize the religious rights and freedoms of proclaimed Neo- Pagans, others explicitly or implicitly utilize mechanisms of law to engen- der hostility and perpetuate centuries-old stereotypes against such practitio- ners.4 The focus of this Comment is to identify the ways that some courts effectuate the disparate treatment of Wiccans, Witches, and similar faiths under the Neo-Pagan umbrella, so that Neo-Paganism can receive the same constitutional protections it is entitled to, along with all other valid religions. 1. United States v. Ballard, 322 U.S. 78, 87 (1944). 2. See, e.g.,Saeemodarae v. Mercy Health Servs., 456 F. Supp. 2d 1021 (N.D. Iowa 2006); State v. Plaskett, 27 P.3d 890 (Kan. 2001); Hicks v. Cook, 288 S.W.3d 244 (Ark. Ct. App. 2008). 3. Compare Roberts v. Ravenwood Church of Wicca, 292 S.E.2d 657 (Ga. 1982) (holding by a slight majority that Wicca was a recognized religion according to Supreme Court criterion), with Plaskett, 27 P.3d at 913-14 (allowing impeachment of a victim- witness’s credibility due to her Wiccan beliefs). 4. See Gelford v. Franks, No. 07-C-258-5, 2007 WL 5582586, at *2 (W.D. Wis. Sept. 29, 2007) (noting that Wisconsin law “allow[s] Wicca[n] inmates to possess one em- blem . for religious purposes”). But see Raper v. Adams, No. 5:06-CT-41-D, 2007 WL 3532344, at *2 (E.D.N.C. Mar. 28, 2007) (concluding that a prison must be allowed great deference in forbidding a Wiccan from using tarot cards with other inmates, because tarot readings pose a security risk). 2011] OPENING THE BROOM CLOSET 137 The basic tenets of the Neo-Pagan belief system are first summarized to show how its beliefs are congruent with many aspects of “orthodox faiths.”5 Some distinctions are also discussed, but perhaps most impor- tantly, common misconceptions that have inaccurately portrayed Wicca and Neo-Paganism as malevolent and/or anti-establishment belief systems are addressed. Next, the history and definition of American religious rights are summarized to show how Neo-Paganism comports with the Supreme Court’s definition of a valid religion protected by the United States Constitution.6 Such recognition demonstrates that judicial and legislative discrimination against Neo-Pagans at any level is impermissible and in violation of the Constitution.7 Applying this legal conclusion, multiple courts have violated constitutional protections by continuing to discriminate against Neo-Pagans.8 Spe- cific cases involving parental rights,9 employment discrimination law under Title VII’s religious entity exemption,10 and rules of evidence11 are ana- lyzed to demonstrate how courts are enabled to unconstitutionally admit and/or use prejudicial religious information against Neo-Pagan practitio- ners. While treatment of Neo-Pagans in the context of parental rights, evidentiary impeachment of character, and employment discrimination (spe- cific to Title VII’s religious entity exemption) are the detailed areas ex- plored in this article, there are almost as many potential areas of law im- pacted by discrimination against Neo-Paganism as there are legal causes of action.12 The reason such an expansive range of cases exists is that any 5. Ballard, 322 U.S. at 86 (“[Freedom of religious belief] embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”) (emphasis added). The use of the word “orthodox” will be used to describe the five largest world religions: Buddhism, Christianity, Hinduism, Islam, and Judaism; the word “unorthodox” will be used to describe all other religious beliefs. These words are admittedly imperfect, because unorthodox has a negative connotation. However, the Supreme Court has relied on these words in this general context. See, e.g., United States v. Seeger, 380 U.S. 163, 165 (1965). 6. See Ballard, 322 U.S. at 86. 7. E.g., Jones v. Jones, 832 N.E.2d 1057 (Ind. Ct. App. 2005). 8. See, e.g.,Saeemodarae v. Mercy Health Servs., 456 F. Supp. 2d 1021 (N.D. Iowa 2006); In re Hilton, Nos. 06CA106, 06CA107, 2007 WL 2298129 (Ohio Ct. App. Aug. 7, 2007); Hicks v. Cook, 288 S.W.3d 244 (Ark. Ct. App. 2008). 9. E.g., Jones, 832 N.E.2d 1057; Hicks, 288 S.W.3d 244. 10. E.g., Saeemodarae, 456 F. Supp. 2d 1021; Dodge v. Salvation Army, No. S88- 0353, 1989 WL 53857 (S.D. Miss. Jan. 9, 1989). 11. E.g., State v. Plaskett, 27 P.3d 890, 913-14 (Kan. 2001); In re Hilton, 2007 WL 2298129. 12. E.g.,Doe v. Tangipahoa Parish Sch. Bd., 631 F. Supp. 2d 823 (E.D. La. 2009) (reviewing conduct of school board in the context of a potential Establishment Clause viola- 138 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 32 criminal or civil case that improperly considers a party or witness’s Neo- Pagan faith may compromise the court’s decision by an irrelevant prejudice. The pocket areas selected will serve as a microcosm of the ways in which unconstitutional discrimination continues to occur against Neo- Pagans. Whether the discrimination is a product of ignorance, complacency, or complicity, the

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