Do Inmates Have the First Amendment Right to Practice Wicca in Prison?

wicca First Amendment Right
Lanesboro Correctional Institution

This is a story that involves people who are completely confused about gender and just as confused about the Constitution.

In North Carolina, a man who is so mixed up that he thinks he is a woman, is suing for the right to practice witchcraft in prison. Duane Fox (who is now trying to get people to call him Jennifer Ann Jasmaine), wants to hold outdoor witchcraft “services” twice a week, with the privilege of using fire. He cites the example of Native Americans, who have been given the opportunity to meet outdoors and use fire in their ceremonies.

He (I will use his God-given and biologically correct gender throughout) is a practitioner of Wicca, which, simply put, is the worship of the devil. Now setting a devil worshipper loose in a prison with the capacity to start fires sounds like a great example of a really bad idea.

He demands a vegan diet and wants to celebrate summer solstice on June 21 by jumping over a fire over which herbs are being dried.

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Fox is in for a 16-year stretch for a second degree sexual offense, and is living testimony to what the worship of the devil will do to a man. In his four years of incarceration, Fox has been accused of no less than 60 infractions, from tampering with locks, to disobeying orders, to sex acts, to threatening officers.

An appeals court turned down one of his appeals by noting that his original trial judge had been “faced with a cantankerous, foul-mouthed defendant, who was threatening his probation officer at the hearing.”

Not only does he want the prison to supply him with a Wiccan diet, he wants taxpayers to buy him a copy of The Book of Shadows, filled with spells and curses to be used on adversaries. The anti-Christian nature of this book is plain. One chant includes the phrase, “Oh, do not tell the priest our plight, Or he would call it sin.”

So does Mr. Fox have a First Amendment right to practice Wicca in the prison courtyard, as his federal lawsuit claims? Now rightly, this case should be settled in the North Carolina court system using the North Carolina constitution and code of law. But it’s in the federal system, so the federal Constitution must be our guide.

There has been so much confusion, distortion, misinterpretation, brainwashing, and intolerable judicial activism regarding First Amendment jurisprudence that it’s almost impossible to follow a true constitutional line. I suggest we follow the line of Joseph Story, the longest serving associate justice of the Supreme Court in the 19th century, who was nominated to the Court by the Father of the Constitution, James Madison.

Story wrote the magisterial and authoritative Commentaries on the Constitution. He wrote it as a man who knew many of the Founders, and was in touch with their thinking at the time the Constitution was crafted.

Here’s what this eminent historian and jurist said about what the Founders were aiming at in the First Amendment (emphasis mine):

The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.

According to Story, then, the purpose of the First Amendment was simple and direct, to prohibit rivalry and competition among the various Christian denominations regarding which would become the official and established church of the United States. The purpose of the amendment was most decidedly not to “countenance” – which means to “admit as acceptable” – or to “advance” – which means “to move forward, promote” the religions of Islam, Judaism, atheism, or any other religion.

Thus, according to this eminent historian and jurist, religions other than Christianity have no First Amendment rights whatsoever under the federal constitution. So if Wicca has no First Amendment rights, who gets to decide whether prisoners get to exercise Wicca in prison or not? According to Story, the Founders intended that to be a matter for the states to decide:

Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.

So if we were still using the Founders’ Constitution rather than the one mangled by renegade Supreme Court justices, we would recognize that North Carolina’s legislature can do whatever it wants with regard to Wicca. It has the perfect freedom to ban it anywhere, including in prison yards, if lawmakers believe it is contrary to public policy.

And if you’re looking for something that’s contrary to good public policy, permitting the worship of the devil comes as close as anything I can think of.

(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Bryan Fischer
Bryan Fischer is the Director of Issue Analysis at the American Family Association. He has degrees from Stanford University and Dallas Theological Seminary. He pastored for 25 years in Idaho, where he served as the chaplain of the Idaho state senate and co-authored Idaho's marriage amendment. He came to AFA in 2009.

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