May 28th, 2005

Brad @ Burning Man

Pagans, Divorce, Child Custody, and Family Law

I wanted to write about something else today. But people keep sending me links to the first article below, as if they wanted me to say something about it. And what truly amazes me is that each and every single one of them has this same tone of outrage, and shock, that suggests that they think that this is the first time that something like this has happened.

For the maybe five of you who haven't already seen this online or on your LiveJournal friends list, a couple of days ago a judge in Indianapolis who was handling a Wiccan couple's divorce added a clause to the final divorce decree prohibiting either parent from exposing their 9-year-old son to "non-mainstream religious beliefs and rituals," presumably including Wicca. (See the AP wire story here.) According to the next day's Indianapolis Star, the Indiana state branch of the ACLU is suing on behalf of the parents to get that clause removed from the court decree.

This is a tempest in a tea-pot, because it's a slam-dunk case for the ICLU. They never had one so easy. Some appeals court judge will have overturned this by the end of next week, at the absolute latest, because it flies in the face of thirty years' worth of clear and unambiguous court rulings all the way up to the US Supreme Court that hold that except in the most extremely compelling cases, such as the imminent death or permanent injury of the child, the parents' First Amendment guarantee of the right to freely exercise their religion includes the right to raise their children in the same religion as the parents. (In fact, Wiccans run the risk of getting bit by this ruling when they take in anyone under the age of 21 or anyone still living with their parents without the parents' consent, because the same court rulings have established that parents can sue anybody who abridges their parental right to control their children's religious upbringing.)

The only other useful thing I have to contribute to this discussion, though, is one hard lesson from my own experience as president of the Alliance for Magical and Earth Religions (AMER) about a decade ago. Did you notice that it's the ICLU and not the local Wiccan community that are supporting the parents? That three days into this story no reporter has found even a single Wiccan in Indianapolis willing to go on the record about this?

We founded AMER back in 1989 as a (late) response to the ongoing Satanic Ritualistic Child Abuse hoax, to help members of all religions tarred as "occult" deal with the police, legal, and media fallout from that fake scare, and to do so in a way consistent with the facts rather than go along with the dishonest scapegoating of Satanists. By the early 1990s, the scare was mostly over. That left us with the same general case load as Circle Sanctuary's defense fund, and every other Pagan rights group out there. Did you ever wonder what the bread-and-butter cases of a minority religion defense group are? I'll tell you: prisoner rights, employment discrimination, and divorce cases. In no particular order, really, all three about evenly. And what all three cases have in common with each other is almost no Wiccans or Pagans want to go anywhere near them. Why? Because neither the Wiccan religion, nor the broader Pagan community, have a strong religious or social value that says that you should stand up for bad people, get involved in muddy cases, just over a matter of principle. The religious and social ethic of those religions is that you should choose your stands on a case-by-case basis, and do what seems right in that particular case.

So when you tell 99.9% of the Pagan or Wiccan community that (to pick some cases we had forwarded to us, with identifying details stripped out) some guy who's in jail for drug trafficking, felony assault, resisting arrest, conspiracy to commit murder, or any other felony is a Wiccan or Pagan or Asatruar who's being denied the right to practice his religion behind bars, it is nigh impossible to get Wiccans or Pagans to care, to write letters on the guy's behalf or donate money to the legal fees involved in the challenge. Such cases happen all the time, because prison officials fear that people claiming to be able to put curses on others will use their spooky reputation to threaten, bully, or manipulate other prisoners, and it could lead to violence. Fifty years of judicial rulings say that they are allowed to address those concerns, but they have to do so in the least restrictive way possible; prison officials just can't be bothered to go to the effort or expensive of being least-restrictive, so they prefer blanket policies. It is nearly impossible to convince most Pagans or Wiccans that every time a prisoner loses one of these cases, it's another judicial precedent that says that Neopaganism and Wicca aren't real religions entitled to real religious protection. No, they look at the particular case, decide that, "He's a bad guy, he deserves whatever happens to him," and walk away from it.

As for the employment discrimination cases, 99.9% of the Pagans and Wiccans I've ever contacted on behalf of someone who was fired, harassed, or otherwise discriminated against at work because of their religion want to know all of the crap that has nothing to do with the law involved. The Equal Employment Opportunity Act doesn't require you to be a college graduate, or a model employee, or a virtuous person in your outside life to be entitled to protection from religious discrimination and harassment at work. But it is flatly impossible to organize Wiccans or Neopagans to do anything about any particular case of religious discrimination or harassment unless they consider the victim to be a paragon of society. If the person is anything less than perfect, they tend to take the employer's side or worse, and ask, "How do we know they didn't deserve to be harassed or discriminated against?"

So given how muddy family law cases, divorce and child custody get, are you even vaguely surprised when I tell you that it's even harder to get them to care about child custody or divorce cases?

I don't know the details of this specific case. I'm retired from that line of work, so I don't feel obligated to spend hours on the phone long distance, trying to find the people who know someone who knows the people involved, chase down the contact information, and talk to the people closest to the case to find out all the rest of the story. Will you forgive me if, having handled many such cases, I make a few educated guesses? Did you notice that the child in question is in a Catholic school? Why is that, I wonder. I'll bet the local Wiccan community knows -- and disapproves. There are many bad reasons why Wiccan parents might have chosen a Catholic school education for their son, and not a lot of good ones. I also know the long history of Wiccan internal politics, so I can guarantee you that the couple have ex-coven-mates out there telling other Wiccans what bad people the couple were. (Everybody in the Wiccan community has ex-coven-mates trash-talking them behind their back. It's just part of the religious culture.) I also wonder where the grandparents stand in all of this. I'm prepared to bet money that they're not Wiccan. It wouldn't surprise me at all if one or more of the grandparents were revealed to be Catholic, and fairly well off, and in some way financially or politically connected to the judge. Which makes it an internal family dispute. And I can count on the fingers of one hand all of the Wiccans or Pagans I've met over the years who were enthusiastic about jumping into an internal family dispute over a matter of legal principle. Finally, I found it interesting that the early drafts of the AP wire story felt a need to explain the term "skyclad" despite the fact that it appeared nowhere in the facts of the article. While I know many Wiccans and naturists who feel that there is no harm to a child from seeing their parents naked in non-sexual situations, I don't know many Wiccans, or very many more naturists, who are eager to go to court to try and establish a right to be naked in front of their own children or others' when the law clearly says otherwise in almost all 50 states.

All of this goes to the point of why, whenever I'm asked which Pagan rights charity people should support, I tell them to send their money to the ACLU, where it will actually do some good.