Religious discrimination by the U.S. Government

The Veterans' Administration
policy concerning grave markers

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Quotation:

Overview:

The Veterans' Administration (VA) will provide, upon application, a headstone or marker for the unmarked grave of most deceased veterans. They will also furnish a headstone or marker for installation in a cemetery "to commemorate any veteran whose remains have not been recovered or identified, were buried at sea, donated to science, or cremated and the remains scattered." ₁ There are restrictions on eligibility. For example, veterans, -- including some who have committed criminal acts, or who have been found to be gay or lesbian -- who receive a dishonorable discharge are refused a headstone or marker.

Since 1996, Wiccans and others -- including this web site -- had approached the VA asking that the Wiccan pentacle be added to their list of allowable religious symbols. They stonewalled for over a decade. Finally, the VA was faced with a lawsuit to force them to comply with the First Amendment of the U.S. Constitution which requires that no government law or regulation infringe on the separation of church and state. Rather than fight a lawsuit that everyone knew they would lose, the VA caved in and authorized use of the symbol in time for Memorial Day - 2007. ₈

The VA website now includes the following entry in its list of "Available Emblems of Belief for Placement on Government Headstones and Markers." ₄

Religious discrimination by the VA:

Photographs of some standard government headstones and markers, in the form of an upright marble or granite headstone, bronze niche marker, flat bronze marker, and granite or marble marker are shown on the VA web site. ₁ The four examples shown there all include include "emblems of belief (religious symbols). Two are Christian, one Jewish and one appears to be Buddhist. Also on that website is a list of all of the approved symbols and the note:

"No graphics (logos, symbols, etc.) are permitted on Government-furnished headstones or markers other than the approved emblems of belief, the Civil War Union Shield, the Civil War Confederate Southern Cross of Honor, and the Medal of Honor insignias."

VA form 40-1330 states that certain optional items, which "may be inscribed at Government expense," may include "an authorized emblem reflective of one's belief." Section 11: "Desired Religious Emblem" gives the applicant five options:

In 1991, the Graduate Center of the City University of New York conducted a massive study of over 50,000 adults across the U.S. to determine their religious identification. ₂ They found that 76.5% of American Adults are Christian. This was a reduction averaging almost one percentage point per year since the Center's earlier study in 1990. Among the smaller non-Christian religious groups, ethical systems and theological systems are:

None of the followers of these religious and spiritual faiths were given the privilege of having their faith represented on their tombstone. This is because their faith was not among the officially recognized belief systems for headstones and markers. Yet some faiths with very few followers are recognized by the VA. A list of symbols is maintained by the VA. ₄

The "American Religious Identification Survey" estimated that there were 8,000 American Wiccans in 1990 and 134,000 in 2001. At that rate of increase, they probably number a half million at this time. The Defense Department reports more than 1,800 active-duty service members in the Air Force identify themselves as Wiccans. The total in the armed forces is unknown. There is no obvious excuse -- other than simple religious discrimination and bigotry -- why the VA was unable to approve of Wicca and at least some of the other faith groups listed above.

Request for information:

We E-mailed an inquiry to The National Cemetery Administration - Public Inquiry Office on 2002-JAN-13 asking:

Re: Religious identifiers on headstone or markers provided by the VA:

"We are impressed with the wide range -- 33 in all -- of religious symbols that you allow to be placed on veterans' headstones and markers."

"Recently, the City College of New York conducted a massive phone survey of people's religious identifications. For the first time, reliable data is available for many of the smaller religions, spiritual groups and ethical systems in the U.S. We find that there are many that are not included among your officially recognized symbols -- three with over 100,000 members."

"I have two questions:

1) How would an individual approach the VA to try to convince it to add a specific faith symbol?
2) Would it be permissible for an individual to obtain a marker or headstone without a faith symbol, and later add their own symbol at their expense? "

Response From the National Cemetery Administration:

This reply arrived on 2002-FEB-20:

"Thank you for your e-mail requesting inclusion of additional emblems on our list of approved emblems for Government headstones and markers. We are currently in the process of preparing a regulation that will provide guidance to organizations interested in having their emblems placed on Government-furnished headstones and markers. When our proposed regulation has been drafted, it will undergo a comprehensive internal examination by the Department of Veterans Affairs (VA). Once approved within VA, the regulation will be sent to the Office of Management and Budget for coordination. The approved regulation will then be published in the Federal Register to allow organizations and individuals to submit comments. We look forward to any suggestions or comments you may have at that time."

"Yes, you may apply for a Govenment [sic] marker without a religious emblem and have an emblem added later at private expense."

Over a half-decade later, the VA had still not taken any action on their "proposed regulation."

Administration stonewalling:

In 1998, Isis Invicta Military Mission, and the Military Pagan Network (MPN) applied to the Veterans' Administration, asking that a pentagram be added to the list of approved religious symbols for VA grave markers. The VA responded that they were in the middle of upgrading their regulations, and that they could make no decision at the time. Nine years later; the regulations had still not been updated; the application has not been processed. The VA has sent the groups several letter asking that they be patient. Rather than work under the current regulations until new ones take effect, the VA has, for some unknown reason, decided to simply place a hold on all requests.

The author of this essay is not skilled in U.S. constitutional law. However, it would seem that the VA is ruling which religions in the U.S. are legitimate, and which are not. It would seem that the establishment clause of the First Amendment to the U.S. Constitution specifically forbids this type of action by the government. The clause reads: "Congress shall make no law respecting an establishment of religion..." This is normally interpreted as requiring all Federal, State, and local governments, including the VA, to not promote one religion or faith group over any other. But that appears to have been exactly what they were doing.

Government policy on religious symbols:

In an 2004-AUG article on Wiccans in the military published in Knight Ridder Newspapers, reporter Randy Myers interviewed Mike Nacincik of Veterans Affairs. ₃ Nacincik said that the department authorizes 38 emblems, but does not allow one for Wiccans because they don't meet the emblem requirements. The government policy insisted on:

None of these are possible, because Wicca, like other Neopagan religions, Native American Spirituality, New Age, Santeria, Vodun, and other decentralized and/or aboriginal religions, has no recognized head, no national officers and no membership lists. The primitive Christian Church circa 40 CE was in a similar position. Chaplain Patrick McCollum of Moraga, CA, an expert on Wicca, commented: "It doesn't appear to me that the Veterans Affairs has any burning desire to make this happen. The Veterans Administration, above all people, should be fighting for each and every one of these men and women who have given their lives for their country." ₃

According to the Stars and Stripes newspaper, until 2005-Fall:

"VA administrators required applicants for new headstone markers to provide documentation from 'the recognized central head or primary contact person' to certify the symbol as representative of that faith. But Wiccans do not have a central governing structure.....that forced them to rebuff earlier attempts to get the pentacle approved."

"...the cemetery administration updated its rules, and now only requires historic information about the religion and other documentation supporting the use of a specific faith symbol." ₅

2006-MAY: Potential lawsuit averted:

Almost two years after the above entry. Veterans Affairs were still stuck at 38 symbols. They apparently treasuring red tape more than service to veterans. It is not clear what their motivation is: perhaps they don't care about the people they serve; perhaps they are merely incompetent and are unable to figure out how to change their regulations; perhaps they are religist -- express hatred and contempt of religions other than their own. Perhaps there is some other reason that is not obvious to us.

During 2005-SEP, Patrick Stewart, 34, a member of the Nevada National Guard was killed in Afghanistan when a rocket-propelled grenade hit his helicopter. Four others also died. Stewart was posthumously awarded the Bronze Star and Purple Heart. He was a Wiccan. His widow, Roberta Stewart, asked that a pentacle, --- a five pointed upright star enclosed in a circle --- be engraved on his plaque on the Northern Nevada Veterans Memorial Wall in Fernely, NV. Veterans Affairs refused, because the symbol was not currently approved by the department. His space on the wall remained blank. It is probably safe to say that the other four who died in the attack were properly recognized.

Ms. Stewart said: "I’m tired of waiting for final approval. It doesn’t take this long to review an application." She has contacted a lawyer who is preparing a discrimination claim.

The Stars and Stripes newspaper reported that:

"Bill Chrystal, a retired Navy chaplain and friend of the Stewarts, said the VA’s continued stonewalling has caused other problems as well. He was scheduled to hold a memorial for fallen Nevada troops later this month, but was told by state Veterans Affairs officials that Roberta could not speak because of the controversy with her application."

"Chrystal, who belongs to the United Church of Christ, has since backed out of the event and will take part in a protest event to highlight the Stewarts' fight'.

" 'What the VA has done is the very thing that the founding fathers were opposed to,' he said. 'It seems to me the whole point of our system is that the government stays out of religion, but here they aren't. It’s not the government’s job to second guess the value of a religion'."

"Stewart said the whole process has been upsetting not just to her but also to members of her husband’s National Guard unit, which returned to Nevada in March. Several of the members were outraged to find out Patrick had not yet been properly honored, and have continued to complain to her as the issue drags on." ₅

The matter appears to have been resolved, Nevada state officials obtained a legal opinion from their Attorney General's office that determined that federal officials have no authority over state veterans' cemeteries. They plan to have a plaque manufactured with a Wiccan pentacle.

Tim Tetz, executive director of the Nevada Office of Veterans Services. said:

"The VA still has not determined yet if a Wiccan symbol can go on the headstone. But we have determined we control the state cemetery and that we therefore have the ability to recognize him for his service to his country." ₆

Roberta Stewart, the widow of Patrick Stewart, said: "I'm honored and ecstatic. I've been waiting a year for this."

2006-NOV: New lawsuit launched:

Circle Sanctuary is a 200 acre (80 hectare) nature center in Wisconsin, about 30 miles (45 km) west of Madison. Their Lady Liberty League organized a Veteran Pentacle Quest Team to promote the acceptance by the VA of pentacles for Wiccan veterans and their spouses.

Americans United for Separation of Church and State launched a lawsuit against the U.S. Department of Veterans Affairs on behalf of Circle Sanctuary. Their goal was to have grave markers provided by the Department for Wiccans as they are for other religions. At the sanctuary are the graves of a Vietnam veteran from Ohio and Jerome Birnbaum, a Korean war veteran. There is also a memorial to Nevada National Guard Sgt. Patrick Stewart who was killed in Afghanistan in 2005. The widows of Stewart and Birnbaum joined the lawsuit.

Selena Fox, a Wiccan priestess and founder of the Sanctuary points out that the 1978 and later editions of the Army chaplain handbook includes a section on Wiccans. The New York Times reported that about 1,800 active-duty service members identify themselves as Wiccans according to the Department's own data. In reality, the 1,800 number refers only to the Air Force, not to all of the armed forces. The Pentagon did not survey the entire military.

She attributes the lack of acceptance of the pentacle symbol as religious prejudice. She said:

"I didn't want to have to sue the government to try to get the U.S. Constitution upheld. It's discrimination. There's no other explanation I can think of." ₇

The VA caves in and follows U.S. Constitution:

An out-of-court settlement was announced on 2007-APR-20. ₁₀ It calls for the Wiccan symbol, a pentacle, to be placed on grave markers within 14 days for all families who have pending requests with the VA. This will provide the symbols in time for Memorial Day. It also requires the VA to pay $225.000 to the plaintiffs to handle their "reasonable costs and attorney's fees." Matt Burns, a VA spokesperson, said that the agency sought the settlement in the interests of the families involved and to save taxpayers the expense of further litigation.

Americans United for Separation of Church and State (AU) represented the Wiccans in the lawsuit. Their director, the Rev. Barry W. Lynn, said:

"This settlement has forced the Bush Administration into acknowledging that there are no second class religions in America, including among our nation's veterans. ... It is a proud day for religious freedom in the United States. ... Sadly, the refusal of the federal government to recognize the Wiccan pentacle seems to have been built on inexcusable bias, a foundation that has crumbled under the press of this litigation."

AU's web site states that:

"Americans United’s attorneys uncovered evidence that the VA’s refusal to recognize the Pentacle was motivated by bias toward the Wiccan faith. President George W. Bush, when he was governor of Texas, had opposed the right of Wiccans to meet at a military base in that state. Bush’s opinion of Wiccans was taken into consideration when making decisions on whether to approve the Pentacle."

"Many people have asked me why the federal government was so stubborn about recognizing the Wiccan symbol," said AU’s Lynn. "I did not want to believe that bias toward Wiccans was the reason, but that appears to have been the case. That’s discouraging, but I’m pleased we were able to put a stop to it." ₉

Ayesha N. Khan, the AU's legal director wrote:

"It is rank hypocrisy for this administration to claim publicly that it cares about religious freedom and equality but then to quietly and deliberately discriminate against a minority faith like Wicca. Until now, this administration’s view has been that Wiccans are good enough to fight for their country, but not good enough to be acknowledged with a proper headstone." ₉

The American Civil Liberties Union represented two Wiccan faith groups and three individuals in a similar lawsuit launched in 2006. They said that the agreement also settles their case.

Jan O'Rourke's last wish:

Jan Denna O'Rourke of Florida, a Wiccan priestess of the Middle Earth tradition, dedicated her life to the service of others and was particularly active in inter-faith work. On 2005-FEB-15, she wrote an email to her friend Rev. Paula Johnson saying: "At this point if I was to die tomorrow I would be eligible for a Wiccan service, just no Pentacle on my headstone. Hopefully this will be changed before my demise." It was not changed; she unexpectedly died eight days later. Jan was buried in Arlington National Cemetery beside her husband Captain William O'Rourke. Their headstone contained a Christian cross on her husband's side, but nothing on Jan's side.

Following the VA's out of court settlement, a replacement headstone engraved with both a pentacle and cross arrived and was installed at Arlington on Beltane, 2007-MAY-01. It was among the first VA-issued markers with a pentacle. The O'Rourke's headstone is the first VA-issued multi-faith headstone in history.

A memorial service and headstone dedication was held on 2007-JUL-04. Paula Johnson wrote:

"Rev. Selena Fox, Senior Minister and High Priestess of Circle Sanctuary will conduct Jan's Independence Day interfaith headstone dedication and memorial service. Joining her will be United Church of Christ minister Rev. Barry Lynn, who also is Executive Director of Americans United for Separation of Church and State.

Also assisting will be Margot Adler, Wiccan author and priestess; Marci Drewy, Director of Military Affairs for the Sacred Well Congregation; Michael Akins, Executive Director of Military Pagan Network; and Kathryn Fuller, High Priestess of Circle of the Wildewood and former National First Officer of Covenant of the Goddess. Several members of the Wiccan/Pagan veterans association, the Order of the Pentacle, will be present, including David and Janet Ewing (Virginia), Debby Morris and Suzanne Krall (Maryland , and Captain Richard Briggs and April Brennan (New Jersey). It is my honor to contribute Jan's eulogy." ₁₂

Covenant News, a fundamentalist Christian news service, reported the events objectively, with two exceptions. In their article, they enclosed the word ceremony in quotation marks, presumably because they do not wish to recognize a Wiccan ritual as having any status. They also added a biblical quotation from Exodus 22:18 at the bottom: "Thou shalt not suffer a witch to live." Many readers of Covenant News will probably regard that quotation as an advocacy of genocide against Wiccans. ₁₃

The author sent an Email to the editor of Covenant News on 2007-JUL-09 commenting:

"I was startled by the juxtaposition of two items in your JUL-08 Covenant News:

1) Under the title "National Moral Degeneracy" you mention: 'One of the most aggravated sins of moral degeneracy of our nation is that of the unrequited blood of murdered multitudes.' This apparently refers to the embryonic and fetal deaths cause by relatively free abortion access in the U.S.

2) Under the title "Wiccan dedication at Arlington on the 4th of July" you place the biblical quotation from Exodus 22:18 "Thou shalt not suffer a witch to live." This quotation will probably be interpreted by many of your readers as calling for a genocidal holy war against Wiccans and perhaps followers of other Neopagan traditions."

We do not expect a response, but will post it here if one arrives.

Author's comments:

It is sad that the surviving family members of deceased Wiccan soldiers and veterans had to sue the Federal Government to obtain the same rights automatically enjoyed by followers of Christianity, Islam, Judaism, and so many other religoins. The VA, an agency of the federal government, had established a list of "acceptable religions" and refused to recognize many minority faiths. They were apparently unable to understand the U.S. Constitution's statement "no law respecting an establishment of religion" precisely means "no law."

It is impossible to prove that this case is one of simply religious bigotry. However, some aspects of the case match the Chaplain Service's refusal to allow Wiccan chaplains in the U.S. Armed Forces. There may be a pattern of religious intolerance and discrimination here.

Still, this case proves that the legal system still works. The Constitution is more powerful than a nameless-faceless bureaucrat and the entire Veteran's Administration. Almost a decade of polite asking got nowhere. But less than two years of legal activity forced the VA to conform to the Constitution.

References:

1. "Application for standard government headstone or marker for installation in a private or state veterans cemetery," Veterans' Administration form 40-1330, at: http://www.cem.va.gov/pdf/401330.pdf
2. "Self Described Religious Identification of U.S. Adult Population, 1990 - 2001," American Religious Identification Survey, at: http://www.gc.cuny.edu/studies/key_findings.htm
3. Randy Myers, "Wiccans in the military seek more understanding, tolerance," SunHerald.com (Mississippi), 2004-AUG-18, at: http://www.sunherald.com/
4. "Available Emblems of Belief for Placement on Government Headstones and Markers," Burial & Memorial Benefits, Veterans Benefits & Services, at: http://www.cem.va.gov/
5. Leo Shane III, "Wiccan widow threatens to sue over memorial plaque," Stars and Stripes, Pacific Edition, 2006-MAY-18, at: http://www.stripes.com/
6. Scott Sonner, "Wiccan sign allowed on soldier's plaque," Associated Press, 2006-SEP-13, at: http://my.earthlink.net/
7. Scott Bauer, "Wiccan priestess fights over graves," Associated Press, 2006-DEC-21. Published by Toronto Star, DEC-22, Page A23.
8. Scott Bauer, "VA Allows Wiccan Symbols on Headstones," Associated Press, 2007-APR-23, at: http://www.washingtonpost.com/
9. "Bush Administration Agrees To Approve Wiccan Pentacle For Veteran Memorials," Americans United, 2007-APR-23, at: http://www.au.org/
10. The text of the "Settlement agreement and stipulation of dismissal," is online at: http://www.au.org/
11. Laurie Goodstein, "Correction Appended: Pagans Sue On Emblem For Graves," New York Times, 2007-MAY-07, at: http://select.nytimes.com/
12. Paula Johnson, "Dedication," 2007-JUL-01, at: http://community.cnhi.com/
13. "Wiccan Dedication at Arlington on the 4th of July," Covenant News, 2007-JUL-08, at: http://www.covenantnews.com