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.