The Contemporary New England Witch

The Contemporary New England Witch
Author Ms.Faith

Wednesday, May 18, 2011

Pagans and the Law - What should you know about your legal rights?

 Good Evening,

                        Lady Justice with Scales

Tonight we discuss our religious freedoms as afforded us as American citizens by our Constitution and the 1st and 14th amendments. This is a tricky topic. I know, I know! We have freedom of religion in our country, so that's that! Or is it?  There are entire books written regarding this topic, and I will only cover the basic areas in this discussion,  but before we start I need to make something clear. I am not an attorney. Nor do I play one on T.V.!!

But I have for many years taken an interest in the laws of our country and state and how they apply to me, and I personally feel every Wiccan, Pagan and Witch should have a working understanding of the laws that concern us.  If we drive an automobile, we need to know the laws of the road right? Well then, if you have ever felt discriminated against because of your beliefs,  the wise thing is to look up these laws and do a little research.  Many of these laws are tested and strengthened in our court system and below I have included a reference listing of the court cases that have been tested over the years. I have also included a short bibliography of reference materials I used for this discussion.  

Let us start at the beginning, and I mean the very beginning. Our Constitution of the United States of America, within the First Amendment states " Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof;" 

What this means in my understanding is that Congress shall not pass any laws regarding religion, either for or against. Our right as American citizens,  which allows our free practice of any religion or religious belief is protected by this amendment.  It is important to note that the belief or practice does not require one to be part of any organized religion or belief system. It does not require one to believe in any singular supreme deity, and truly all religious beliefs, i.e. individualistic, indigenous, agnostic, polytheistic even atheistic beliefs all are given protection under the law as it stands.

Interestingly, this amendment to our Constitution was originally only imposed on a federal level and it wasn't until the mid twentieth century, that lawsuits such as  Everson v. Board of Education (1947) incorporated the Establishment Clause, which made the 1st amendment in regards to religion apply on a statewide basis. The Establishment Clause "prohibits the federal, state or municipal establishment of an official religion or other preference for one religion over another, non-religion over religion, or religion over non-religion".  The Establishment Clause's meaning has often been a point of contention among different groups during different times in America since its inception. Primarily because its meaning can be interpreted differently and has been over the years.  According to liberals for example, the Establishment Clause erects a wall of separation between church and state, although this term does not appear in the First Amendment or in our Constitution, but in a personal letter sent by Thomas Jefferson to church leaders in Connecticut.  Hmmm.

It was not until the late twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by the states. It was common until this time for states to promote and encourage the participation of one religion over others and to the exclusion of some.  In the Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion." 

Actually the courts are not allowed to even determine if a religion is valid!  "Courts cannot judge the validity of any belief or doctrine; US v. Ballard, 322 U.S. 78 (1944)  What does this all mean? Let me put it in simple witch language.  Can you still get fired from your job if you are Pagan?, Can you lose custody of your children because you're Wiccan?, Can you be discriminated against because you are Pagan, Wiccan or a Witch? The answer to all of these questions is a resounding YES!  Yes, you can. 

Hey now! I didn't say it was right, or legal or even nice.  But the reality is, these things happen and continue to happen on a regular basis.  Just check out my list of the cases below heard in some of the highest courts.  Now, these cases and the eventual judgment of the court do hold up our constitutional rights, but they all started with an action of one against another and people did lose their jobs, custody, rights etc. etc. along the very long, expensive and time consuming process until they reached the end.  

One famous case for Wiccans everywhere! is Dettmer v. Landon 799 F. 2d 929 (4th Cir. 1986) was a court case in which the United States Court of Appeals for the Fourth Circuit held that 'although Wicca is a religion , it was not a violation of the first amendment to deny a prisoner access to rituals objects.   Yikes! To sum up this case, a prison inmate who was a practicing Wiccan wanted access to ritual materials in his cell for religious practice. .  .  .  Wiccan materials.  We use fire .  .  .   sharp knives .  .  .    hmmm, I tend to agree with the courts on this one even if it was against the Wiccan prison inmate. Um, prison inmate is the key phrase here. Yet this was a "Win" for Wiccans everywhere, simply because the courts are not allowed to even declare a religion a religion, so by this simple 'Ooops' Wicca obtained a tad more credibility than it had before.  So, this is good.  Yet, there are decisions stated also by the highest court in the land, the U.S. Supreme Court that have hurt us equally. 
Such as United States Supreme Court's notorious decision of Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 U.S. 660, 670 (1988)  In Smith, Justice Scalia wrote that the accommodation of religion should be left "to the political process" where government officials and political majorities may abridge the rights of free exercise of religion.   .  .  .  Wait, what?!  

The American Civil Liberties Union has responded to this decision with this statement "The ACLU, along with almost every religious and civil rights group in America that has taken a position on the subject, rejects the Supreme Court's notorious decision of Employment Division v. Smith."

Outside of the court system, we have leaders in this country  that also pose stumbling blocks to our religious freedoms.  In 2000 for instance there was an on-line cyber debate with the then candidates for President of the United States and a girl from San Diego California submitted this question to the candidates:

"With religious diversity increasing, what are your thoughts on the protection of religious freedom and the separation of church and state? Should religions like Wicca be banned from recognition by the military, as some legislators suggest?”

George Bush (then Governor Bush)  answered: 

"I am committed to the First Amendment principles of religious freedom, tolerance, and diversity.  Whether Mormon, Methodist, Jewish, or Muslim, Americans should be able to participate in their constitutional free exercise of religion. I do not think witchcraft is a religion, and I do not think it is in any way appropriate for the U.S. military to promote it.

Hmmm.  Well he became president, I guess its a good thing he didn't get nominated to the Supreme Court, where he could have done real damage!  
I personally know a woman who lost custody of her children because the father wanted the kids to go to a parochial school and she was Wiccan, and he didn't want them educated in any magickal way. The court found in favor of the father and she was unable to afford additional representation and had been spiritually beaten down by the long divorce and pain of the entire process, so she didn't fight the case further.  Was this fair? Right? Just? Of course not.  But it happened. 

My point? Many run around using the first amendment and also the14th amendment "No state shall deny to any person within its jurisdiction the equal protection of the laws." (The fourteenth amendment protects against discrimination by state and local governments on the basis of religious beliefs, as well as gender or ethnicity.), to proclaim their rights as Wiccans, Pagans and Witches.  While its true that we do have this ultimate protection, realistically while we wait and pay the high expenses for our case to get to the United States Supreme Court which on average takes many years, and in the end many cases are not even heard, we are still out of a job, discriminated against and  judged unfairly.  Knowing your rights and resources available to you can help.  

There are many Pagan anti-defamation groups springing up in all states.  One of the first I had ever heard of was the one founded and organized by Ms. Laurie Cabot the 'Official Witch of Salem', over twenty years ago, and is called the (WLPA) Witches League for Public Awareness and more recently she founded the (PWP) Project Witches Protection and is still today a group made up of professionals who can represent and defend those who have been discriminated against.  Another excellent resource is  This website lists all sorts of pagan anti-defamation groups, as well as Wiccan and Pagan educational groups and other informative sites. The American Civil Liberties Union is also a place to get needed information on how you may be represented and helped. The ACLU can be reached through 

I have found it a personal responsibility to role model and demonstrate to the lay and magickal public a credible, reasonable, polite respect for others and to present a down to earth real persona that others can relate to and engage with.  Don't get me wrong, I had my wild witchy moments in my 20's.    O.K. .  .  .  I guess a part of my 30's also .  .  .  if you must know, where I wore long cloaks, long Gothic dresses (not just to the Renn faires as one would think, but to the local Stop and Shop and the mall! Seriously, I did!)  I still like dressing up witchy, but I keep it to special occasions like Sabbats and usually just dress nicely, a tad Bohemian, but fairly 'normal'.

Why the change? Is it just because I'm getting older! Oooh, how dare you! I'm just a few centuries young! (Big smile)   I think its because I'm getting a smidge wiser, perhaps. Because in my 20's and 30's I was just a private individual who had no interaction with the general public and most just thought me a bit different, to put it nicely.  Now, I am a business and school owner and I teach this stuff in a Adult Continuing Education program at Manchester Community College. I may only impact a tiny portion of the world, but many people do come to me as a public witch in the Manchester area for advice, questions and knowledge of a witchy sort.  I know that I can influence and affect people in many ways, just by playing this public role. I see deep responsibility in that.  We all affect people everyday by our interaction with them. How we come across is vital.  I choose to affect people in a positive, fun and non frightening way, and hopefully answer their questions in reasonable, everyday language.

When people meet me and know I'm a witch, because of the class or lecture I'm giving or behind the sales counter at the store, they will ask me questions or start a conversation and after several minutes I've heard many times " You should talk to more people about this.  .  .  You don't come across at all like I expected .  .  .  (translation, you're not freaky, scary or weird!?) .  .  .  I've heard, "You're very knowledgeable .  .  .  You look just like anyone else! (Well I don't know about that!) .  .  .  all basically saying that my words have credibility and something of value, at least to them.  We all can affect this path positively, and I know you also have much to offer with what you've learned. But when people can't get by your outside appearance, just because its so foreign or unusual  they never get to really hear your words in the first place.  Thus when they leave you they are left with an image of what they saw and little of what you know.

 Those that wish to come across as totally freaky, weird, strange and really edge, although I understand and respect that as a personal choice, they should not be surprised when some might discriminate against them, for example:  you may not get a job you applied for, because the boss is afraid you will scare away the customers because of your individual looks! Oh my,  but don't say its religious discrimination. And no they will never tell you the real reason! I mean really why would they? 

Also some people take the 'freedom of religion' concept a tad too far in my very liberal opinion. For instance, you don't get to light candles and burn incense at your desk in your cubicle at work just because of your perceived rights.  Nor will every employer give you every Sabbat off especially when that adds an additional eight calendar days that are not found on everyone else's holiday calendar.  AND I know the accepted calendar holidays are many times Christian or Judaic in nature, and yours are also religious in nature but  .  .  .  pick your battles my dear witchlings.  It's also important to pick battles that you have an actual chance to win.   It's also important to realize that every battle is not meant for us to fight personally.   

I guess I want to sum up this discussion by saying, in my opinion,  we do live in the most wonderful country in the world, if civil, religious and societal rights and freedoms are important to you.  We have the best there are.  Frankly for those who don't fit in the majority mainstream, nor want to, this country affords many rights and privileges not found elsewhere.   The laws in our country, like our government, are always changing, evolving, morphing and growing. Administered by humans, things don't always go our way, as people are only as fair and just as their filters allow them to be.  Take responsibility for you. Know your rights, understand what they really mean, and present yourself in a way that others can learn from.  So many people want to know of these ways, if they ask you, realize you can affect them in so many ways.  

How will you affect others with your magickal knowledge?

  (Author's Note- As stated in the above discussion, I am not an attorney, nor do I have any legal training.  The information above was compiled by myself during research for this topic over the years and for this discussion.  Please always seek out a competent attorney or legal adviser for any legal needs you have. Please do not use the above information provided to make any determination as to your legal rights and status.  I myself, although I have done much research on this topic over the years, would run to an attorney should I find or suspect that my rights have been violated or infringed upon. Witches can be pretty opinionated, some of us stubborn, and we tend to feel strongly about many things.  But with today's technology and so many resources at our finger-tips we can also be highly educated and wise in the decisions we make. There are many out there with so much more knowledge than we have, seek them out.)

 Ms. Faith McCann ~owner and Head witch of Enchantments a School for the Magickal Arts and Witch Shoppe, located in Manchester, CT USA and author of 'The Life and Times of a Contemporary New England Witch' witch blog 

Court Cases used as background research  for this discussion: 

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 113S.Ct 2217 (1993)
Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829 (1989)
Callahan v. Woods, 658 f. 2d.679 (9thCir. 1981)
Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) 
Sherbert v. Verner, 374 U.S. 398 (1963)
Religious Freedom Restoration Act, 42 U.S.C. 2000bb (1993)
Lawson v. Dugger, 844 F. Supp. 1538 (S.D. Fla, 1994)
Walz v. Tax Commission, 397 U.S. 1 (1947)
Everson v. Board of Education, 330 U.S. 1 (1947)
Lemon v. Kurtzman, 403 U.S. 602 (1971) 
Larson v. Valente, 456 U.S. 228 (1982)
 Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) 
Also see under RFRA 1993:
Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994)
Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 849 F. Supp. 77 (D.D.C. 1994) 
Additional Protection is provided by  The Civil Rights Act of 1871-1978 
American Indian Religious Freedom Act (1978) 

Additional materials used for the basis of this discussion provided by: 

The Witches Voice website  and 
Pagans and The Law  Understanding your Rights by Dana D. Eilers Attorney and Pagan Activist

Please check out my newest blog The Life and Recipes of a Medieval Cook @ 

© 2010-2011 Enchantments, LLC Portions of this blog posting may include materials from my book “Enchantments School for the Magickal Arts First Year Magickal Studies.” For more information, see or go to the title of tonight's discussion and click, it will link you to my school's website. 

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