Christ religion

Courts don’t have a single definition of religion

By HANNAH SANTO

Herbert Dettmer requested candles, salt and a small statue so he could continue to practice his beliefs while incarcerated in Virginia in the early 1980s. He was denied access to these items – considered contraband in prisons – although similar items were permitted at other religious ceremonies performed by prison chaplains.

The Virginia Department of Corrections has not recognized Dettmer’s beliefs as a legitimate religion. Dettmer, a member of the Church of Wicca, sued and won. In Dettmer v. Landon (1985), the Virginia District Court officially recognized the Church of Wicca as protected by the First Amendment. The court held that because Wiccan beliefs and rituals are “spiritual” and have “similarities to other more widely recognized religions”, the Church must be considered a “true” religion.

Dettmer and people who are part of less visible religious communities should be protected by the First Amendment, but that doesn’t always happen due to ongoing tensions in how our courts define religion. Only by maintaining protection for the most vulnerable religious minorities does the First Amendment protect religious freedom for all.

What is Wicca?

Wicca is a modern religion rooted in pre-Christian paganism in which followers practice witchcraft through rituals honoring the divine and natural world. Dating back to the Roman Empire, the term pagan historically referred to any “other religious” – mainly non-Christians – but today the word is used to characterize a wide range of religious traditions, most of which are articulated around a respect for nature.

Wicca is a largely decentralized religion, which means that no central authority dictates its rules. However, some communities adopt a more formal structure, such as the Church of Wicca, founded in 1958, of which Dettmer was a member. While all religious traditions are internally diverse, the varieties of practices within Wicca are particularly wide. For example, some Wiccans worship both a female and a male deity while others believe in one or none. Rituals within the Wiccan tradition differ widely but are often centered on the natural world, such as the 8 Sabbats, festivals marking the passing of the seasons.

Although Wiccans constitute a small minority of the population, long-standing misconceptions equating Wicca with devil worship have led to prejudice against adherents. In August 2022, evangelical Christian demonstrators in WitchsFest United States, an annual pagan festival, disrupted the gathering, forcing some events to be canceled. Festival attendees said harassing communities for their religious beliefs defies the spirit of the First Amendment.

Do the courts protect religious traditions like Wicca?

When our courts interpret and apply the First Amendment’s protection of religious practice, they sometimes protect Wiccans like Dettmer, but not always.

A reason: Our courts have never agreed on a single definition of religion. Previous attempts to define religion were based on tick boxes that worked for the Christian majority, such as belief in one God, a central written text, a clear hierarchy of authority, etc. As a result, Christian (especially Protestant) traditions are structurally privileged in religious freedom law.

But this cookie-cutter definition does not work for non-Christian decentralized traditions. The less a religious minority resembles the majority (beliefs, hierarchy, rituals, festivals, etc.), the less likely it is to be considered a legitimate religion. Traditions that differ from those of the majority are more likely to be characterized as ideology or personal philosophy, making it more difficult for followers to access their First Amendment rights. Wiccans, whose practice does not include the structures, central text, or uniform code of beliefs that Christian traditions do, sometimes struggle to protect their First Amendment rights. If Dettmer had been an independent practitioner of Wicca, instead of an official member of the Church of Wicca, the court might not have sided in his favor.

What happens when we (re)define religion?

In recent decades, our legal system has broadened its definition of religion, slowly moving away from the application of explicitly Christian standards. However, as the Christian majority shrinks and alternative religious communities are growing in popularity, questions remain: how do we still inadvertently limit religious freedom when our standard of legitimate religion depends on sameness with the religious majority? On the other hand, what unintended consequences could happen to us if the court adopted a broader definition of religion? If we expand our definition of religion, are we opening the door to communities such as the church of the flying spaghetti monster Where followers of the Jedi Order inspired by Star Wars make requests for free First Amendment exercise? How should courts balance what religious studies scholar and attorney Winnifred Fallers Sullivan considers to be “impossibility of religious freedom”?

As the law evolves, one thing is certain: just because you find an unfamiliar religious tradition doesn’t change its First Amendment protections. Whether you are a Christian, a Jew, atheist or Wiccan, at some point your tradition was probably deemed illogical, novel, or threatening. When we protect the free exercise of our most vulnerable religious minorities, we protect religious freedom for all.

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Hannah Santos is the religious freedom program coordinator at the Freedom Forum.