Wiccans are suing the US Department of Veteran’s Affairs in Wisconsin federal court, claiming that the omission of Wiccan symbols from headstones for deceased veterans violates the First Amendment. The Department currently allows common Christian, Jewish, Islamic, and Buddhist symbols, as well as a few minor religions. The Wiccans would like a pentacle inscribed in a circle for their headstones.
Pachyderm quesetion of the day: how is a headstone a Congressional establishment of religion? Of course, this all goes back to the initial error of Barron v. Mayor & City Council of Baltimore (1833), where Justice Marshall declared that the Bill of Rights does not apply to the states. In doing so, he ignored the plain meaning of the Bill of Rights: the First Amendment applies to laws made by Congress and the other amendments give rights to the people (without limitation as to federal or state entity). This would have the effect of allowing states to regulate the potential harm from religion, speech, etc under their “police powers,” thus avoiding the nonsense of Brandenberg/Hess and its ilk. Likewise, it would avoid the nonsense of absurd interpretations of the other amendments, which plainly says that the rights of the people will not be abridged. These problems are only exacerbated with the administrative law decisions which made administrative agencies a fourth branch of government. (We can assume, for this discussion, that the VA is acting in the place of Congress.)
This leaves us with the entanglement of headstones and bereaved widows. If we were to ignore the 1833 debacle, this would not be a federal case: Congress is not establishing a religion via a law. As it is, though, we are leaving the Courts to decide whether or not a headstone is establishing religion and whether the VA is acting appropriately by limiting the headstone decorations that it offers.