Stewart v. Nicholson

Last modified 2011.09.15

  • Status Closed
  • Type Counsel
  • Court U.S. Court of Appeals, U.S. District Court
  • Issues Fighting Discrimination, Racial Equality, Why People of Faith Support Church-State Separation

The Department of Veteran Affairs maintained a list of 38 approved religious emblems for use on official headstones, grave markers, and memorial plaques in veterans’ cemeteries. Among the included emblems were 16 variations of the Christian cross; the Star of David representing Judaism; the Baha’i nine-pointed star; the Unitarian Flaming Chalice; the Buddhist Wheel of Righteousness; and two Muslim emblems.

For more than nine years, members of the Wiccan faith and their religious congregations and clergy sought approval to add the Pentacle—the Wiccan emblem of belief—to the list, but the Secretary refused to act on any of the applications, while approving religious symbols for members of other religions in a matter of weeks or months.

On November 13, 2006, Americans United filed two lawsuits—one in federal district court in Wisconsin and the other in the Federal Circuit in Washington, D.C., on behalf of Roberta Stewart (whose husband, Patrick Stewart, was killed while on active duty in Afghanistan in 2005), Karen DePolito (whose husband, Jerome Birnbaum, was a Korean War veteran who also died in 2005), and two Wiccan organizations. James Hall of AU’s Board of Trustees served as local counsel for the Wisconsin suit. The lawsuits asked the courts to declare the Department’s Emblems-of-Belief Rule unconstitutional and to order the Department to add the Wiccan emblem to the list of approved symbols.

In January 2007, the government issued a new proposed Emblems-of-Belief Rule and then moved to stay proceedings in the district court case. The court denied the motion to stay, and set the case on an expedited schedule, which we had requested. We then voluntarily dismissed the Federal Circuit case once the VA submitted to the district court’s jurisdiction.

We conducted intensive discovery, during which we uncovered evidence that VA officials had incorporated into department policy a statement by George W. Bush (when he was a presidential candidate) that “witchcraft” isn’t a religion and, therefore, that the military should not allow members of the Armed Forces to practice it. With that and other evidence, we were able to obtain a settlement in which the VA completely capitulated, agreeing to (1) add the Pentacle to the list of approved emblems; (2) give to our clients, and to the family members of any other deceased Wiccan veterans who wanted them, memorial markers bearing the Pentacle; and (3) pay attorneys’ fees. Our clients and other families have since received the gravestones and memorials that they wanted and have dedicated them in Arlington National Cemetery and other veterans’ and private cemeteries across the country. We received the attorneys’ fees due to us under the settlement, and the case has been concluded.

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