Opening the Broom Closet: Recognizing the Religious Rights of Wiccans, Witches, and Other Neo-Pagans

Religious freedom is a core component of our nation and one of the most widely known and accepted constitutional guarantees provided by the First Amendment. No prior civilization had adopted a national policy that tolerated various religious beliefs while simultaneously refusing to endorse or promote a national religion. Considering the fundamental backdrop of religious tolerance, it might seem unimaginable that a skilled medical technician could be fired from her job, an alleged victim of sexual abuse could have her credibility undermined in a court of law, or a mother could lose custody of her child, under the color of legality, because of their religious beliefs. Yet, the startling reality is that many courts have allowed for the disparate and discriminatory treatment of earth-based religious beliefs broadly labeled as Neo-Paganism. While many courts fully and accurately recognize the religious rights and freedoms of proclaimed Neo-Pagans, others explicitly or implicitly utilize mechanisms of law to engender hostility and perpetuate centuries-old stereotypes against such practitioners. The focus of this Comment is to identify the ways that some courts effectuate the disparate treatment of Wiccans, Witches, and similar faiths under the Neo-Pagan umbrella, so that Neo-Paganism can receive the same constitutional protections it is entitled to, along with all other valid religions. The basic tenets of the Neo-Pagan belief system are first summarized to show how its beliefs are congruent with many aspects of “orthodox faiths.” Some distinctions are also discussed, but perhaps most importantly, common misconceptions that have inaccurately portrayed Wicca and Neo-Paganism as malevolent and/or anti-establishment belief systems are addressed. Next, the history and definition of American religious rights are summarized to show how Neo-Paganism comports with the Supreme Court’s definition of a valid religion protected by the United States Constitution. Applying this legal conclusion, multiple courts have violated constitutional protections by continuing to discriminate against Neo-Pagans. While treatment of Neo-Pagans in the context of parental rights, evidentiary impeachment of character, and employment discrimination (specific to Title VII’s religious entity exemption) are the detailed areas explored in this article, there are almost as many potential areas of law impacted by discrimination against Neo-Paganism as there are legal causes of action. The pocket areas selected will serve as a microcosm of the ways in which unconstitutional discrimination continues to occur against Neo-Pagans. Whether the discrimination is a product of ignorance, complacency, or complicity, the hope is that heightened legal awareness will eradicate what has become a recurring, if not systemic, atrocity in our judicial system