June 2007 Church & State | Featured

War widow Roberta Stewart is a fighter.

When Stewart’s husband, Sgt. Patrick D. Stewart, was killed in action over Afghanistan on Sept. 25, 2005, after his Chinook helicopter was shot down, Stewart had to deal with her shock and grief. One thing that helped ameliorate that burden was the knowledge that Patrick would be remembered with a suitable memorial. The Depart­ment of Veterans Affairs (VA) offered to erect a memorial marker for him at the Wall of Heroes at the Northern Nevada Veterans Memorial Cemetery near Fernley, Nev.

Stewart was pleased to see her husband honored but puzzled and hurt by what came next: The VA refused to include the pentacle, the symbol of the Wiccan faith of the Stewarts, on the plaque.

The agency’s decision made little sense. Memorial markers and headstones for fallen service personnel routinely include religious symbols such as crosses, stars of David and the Muslim crescent and star. There are 38 symbols available, including emblems for atheism and humanism. But because the pentacle was not on the VA’s “approved list,” it would not appear on Sgt. Stewart’s marker.

Now, that is going to change. Amer­i­cans United sued the VA on behalf of Stewart and other Wiccan spouses as well as two Wiccan groups. On April 23, AU held a press conference to announce that the case has been settled. The result is a victory for the Wiccan families – and for the larger principle of religious freedom.

“I was in shock the day I ordered my husband’s memorial plaque and was told I could not put our emblem of faith, the pentacle, on that plaque,” Stewart said during the event at the National Press Club. “I cried for days. I never thought my own government would take the freedoms my husband and I held so dear away from us. Then, I realized my husband would want me to stand strong and fight for those freedoms; after all, he died for them. So as hard as it was, I did.”

 The settlement ends legal action that was filed last November – but the quest for Wiccan recognition goes back farther. For more than a year, attorneys with Americans United dialogued with officials at the Department of Veterans Affairs.

AU’s legal staff urged the VA to do the right thing and approve the pentacle. Doing so, the lawyers asserted, would avoid costly and time-consuming litigation.

But officials at the VA would not budge. While they were willing to talk with AU attorneys, the VA officials were clearly stonewalling. Approval of the Wiccan symbol, AU was told, was under consideration. When AU’s attorneys pointed out that the first application to approve the Wiccan symbol was filed 10 years ago, VA staffers replied that new rules were being promulgated governing the use and approval of religious symbols – despite the fact that pentacle applications had already been filed under various sets of rules in place in 1997, 2001 and 2005.

Finally, on Nov. 13, 2006, AU filed suit against the VA in U.S. District Court for the Western District of Wisconsin. The legal challenge was brought on behalf of two Wiccan groups, Circle Sanctuary and Isis Invicta Military Mission, as well as three individual plaintiffs. Joining Stewart was Karen DePolito, widow of Jerome Birnbaum, a Korean War veteran. (See “Pentacle Quest,” December 2006 Church & State.) Jill Medicine Heart Combs, whose husband, Army veteran Gary Combs, has been in a coma in a VA hospital since August of 2005, was later added as a plaintiff.

That action apparently got the attention of both the VA and the Justice Department. This spring, officials with the Department of Justice contacted AU and signaled that they were ready to talk about a settlement. Negotiations commenced, and U.S. District Judge John C. Shabaz signed off on the agreement, bringing the legal fight to a close.

At the press conference, Americans United Executive Director Barry W. Lynn welcomed the government’s decision to end the case.

“This settlement has forced the Bush administration into acknowledging that there are no second-class religions in America, including among our nation’s veterans,” Lynn said. “It is a proud day for religious freedom in the United States.”

But even as Lynn spoke, heavy questions hung in the air: Why was it necessary to file this case at all? Why didn’t the government realize right away its position was indefensible and give the Wiccans what they wanted?

The lawsuit provided some answers. During the legal discovery process, AU attorneys uncovered evidence that the VA’s refusal to approve the pentacle may have been motivated by bias toward the group.

VA staffers were apparently nervous about approving the pentacle, aware that President George W. Bush is no fan of the religious denomination.

Wicca is a nature-based faith with roots that predate Christianity. Many of its practitioners see the divine in nature and engage in rituals at the time of the new moon, full moon and other seasons. Wicca has roots in the beliefs of the ancient Celts. Circle Sanctuary, based in Wisconsin, says of Wiccans on its Web site, “They love and respect Nature and seek to live in harmony with the rest of the ecosphere...They honor the cycles of Nature.”

The religion is often misunderstood, and its symbols are not readily familiar to many people. As a result, misinformation about the faith continues to circulate.

Bush’s hostility toward Wicca stretches back to his days as governor of Texas. In the summer of 1999, a flap erupted after media reports discussed a ceremony Wiccan soldiers held at Fort Hood near Killeen, Texas, to mark the vernal equinox. Then-U.S. Rep. Bob Barr wrote to military officials urging them to block future Wiccan events. Barr introduced legislation to ban Wicca in the military and even threatened to hold congressional hearings on the matter.

As the hubbub escalated, Bush was asked to comment on the matter by ABC News. Bush, who was then seeking the Republican presidential nomination and was eager to kowtow to the Religious Right, remarked, “I don’t think witchcraft is a religion. I wish the military would rethink this decision.”

Americans United Legal Director Ayesha N. Khan noted that some of the documents obtained during legal discovery were written by VA staff members who mentioned Bush’s antipathy toward Wiccans. Khan, AU Assistant Legal Director Richard B. Katskee, Litigation Counsel Aram Schvey and other members of the AU legal team pored over thousands of pages of documents.

During the press conference, Lynn criticized Bush for his narrow understanding of religious freedom.

“It appears that the president’s ill-informed personal opinion of Wiccans weighed heavily when the VA made decisions on whether to approve the pentacle,” he said. “Not surprisingly, views forged by prejudice and misinformation led the VA down a legal blind alley.”

Experts in constitutional law agreed that the VA had no legal leg to stand on. VA officials had drawn up a list of 38 “approved” religious and philosophical symbols. The agency established a protocol for groups seeking approval of their symbols – then dragged its feet every time a Wic­can group applied.

Other religious groups were met with speedy ap­proval. As the Wiccan request was pending, six other faiths had their sym­bols approved. Among them was a Sikh symbol, which was approved in a matter of weeks.

Nor can the denial be traced to the number of Wiccans in the country. Estimates vary, but many scholars of religion say the faith is growing. A Department of Defense document estimated the number of Wiccans in the military at 1,800. (These figures, while telling, are irrelevant. From a constitutional perspective, a group cannot be denied its rights simply because of size.)

In addition, AU attorneys pointed out that several smaller groups have already won VA approval for their symbols. Among them are Eckankar, described on its Web site as the “Religion of the Light and Sound of God,” as well as Seicho-No-Ie, a nondenominational faith founded in Japan in 1930, and the Aaronic Order, an offshoot of the Church of Jesus Christ of Latter-day Saints. (The group, based primarily in three rural communities in Utah, is believed to have fewer than 2,000 members.)

AU’s Katskee, who coordinated the Circle Sanctuary v. Nicholson case, noted during the press conference that under the First Amendment, the government cannot play favorites among religions.

“Americans cannot be treated like second-class citizens by the government because their faith is misunderstood by some of the neighbors,” Katskee observed. “Americans cannot be denied rights because of misperceptions about their faith that may be rampant in the popular culture.”

The Rev. Selena Fox, founder of Circle Sanctuary, said the legal action should serve as a reminder to all Americans that our freedoms are not secure unless they are defended.

“The enmeshment of church and state is a dangerous cancer that is eating away at the freedom foundations of American society,” Fox told Church & State. “The veteran pentacle quest victory not only has helped stop some of this cancer, it is serving as a powerful wake-up call about the importance of upholding freedoms in our country.”

Continued Fox, “Americans need to know that just because the Constitution is a foundation document for the U.S., it does not mean it is fully implemented for everyone. We must work together to keep our freedoms healthy and strong.”

About a week after the settlement was announced, a large crate arrived at the Circle Sanctuary of­fices near Barneveld, Wisc. Inside were granite markers for Stewart and Jerome Birnbaum, a Wiccan veteran of the Korean War who died on Nov. 17, 2005. Both featured the pentacle.

On May 1, Fox presided at a ceremony erecting the markers at  Circle Cemetery, on the grounds of a nature preserve that Circle Sanctuary owns near Barneveld. (A marker for a third soldier, a Vietnam War veteran from Ohio whose family prefers to remain anonymous, was also erected.)

The media was quick to pick up on the settlement. Stories appeared in The Washington Post and The New York Times among others, and radio and television were also on the case. National Public Radio and CNN both reported on the settlement.

In addition, an Associated Press feed went around the world. The day after the press conference, AU staff members spotted stories about the case on the Web sites of several foreign newspapers.

As news spread about the settlement, reaction began pouring into the Americans United office and at Circle Sanctuary. Over the next several days, AU and Fox received a steady stream of messages, the overwhelming majority of them positive.

One man wrote to AU about being Wiccan in the military in the 1970s. Uncertain how his religion would be received, he kept it under wraps.

“I just read the outcome of your case and am simply full of tears, some in joy, some in grief for fallen brethren who passed unacknowledged and some in a singular selfish relief that now, finally now, I may change my spiritual preference as to my faith on my military documents,” the Army veteran wrote.

Another man observed, “I have always believed religion to be quite a personal matter and as such can never be determined by the masses and/or government. My education in history has taught me religion and government are a bad combination. A quote I have often seen summarizes it well: ‘The last time we mixed religion and politics, people were burned at the stake.’” 

Curiously, most Religious Right organizations remained silent. Although groups like the Family Research Council, Focus on the Family and the Alliance Defense Fund are usually quick to comment on any case touching on church-state relations, this one seemed to strike them mute.

One conservative Christian group that did speak out publicly, the Rutherford Institute, supported the Wiccans’ religious freedom rights.

“I was just aghast that someone who would fight for their country and die for their country would not get the symbol he wanted on his gravestone,” John W. Whitehead, president of the Charlot­tes­ville, Va.-based group, told The New York Times. “It’s just overt religious discrimination.”

Military officials in Nevada also backed the settlement.

“I’m pleased we can honor a fallen Nevada Guard member with the symbol of the faith he practiced,” Maj. Gen. Cindy Kirkland, adjutant general of the Nevada National Guard, told the Lahontan Valley News.

In Washington, Senate Majority Leader Harry Reid (D-Nevada), who worked with Stewart to persuade the VA to change course, issued a statement praising the settlement.

“This achievement helps mark a symbolic closure for Roberta Stewart and other loved ones of troops who have sacrificed their lives for our country,” said Reid spokesman Jon Summers.

Reflecting on the battle, Fox conceded the effort was at times trying but said she never lost faith.

“This has been a long and difficult struggle, but I am glad that the other plaintiffs and I took that stand and that we had the support of Americans United. I hope that now that this victory has been achieved, that other quests for equal rights for Wiccan and Pagan people – and those of other belief systems – will be achieved more easily.”