by Max Brantley
A lawyer calls attention to a Court of Appeals decision this week not to rehear an earlier ruling upholding a change of custody of a two-year-old from his mother to his father.
The Court of Appeals' original decision affirming the change of custody noted that the trial judge was influenced by the mother's statement that she followed Wicca -- although she later said it was just a casual remark and that she really was a Baptist. The opinion cited Judge Robert Vittitow's concern about care of the child, but also said:
"Finally, he stated his concern over her testimony regarding the Wicca religion, stating she probably was more involved in it than she led the court to believe."
Judges Robert Gladwin, David Glover, Wendell Griffen and Pryce Marshall formed the all-male majority in favor of the mother losing custody. Judges Jo Hart and Sarah Heffley formed the all-female dissent.
(Note for Judge Vittitow and the Court of Appeals: Wicca is a belief based on nature. At least one soldier killed in the Iraq war is buried under a Wiccan headstone at Arlingotn National Cemetery with a symbol like the one inserted here. Just because it's OK for the Army and its fighting men does not, of course, mean it's acceptable to Arkansas jurists.)
The mother asked for a rehearing. It was denied yesterday without comment, except a stinging dissent from Judge Hart, who still believes a religious prejudice -- irrelevant to the law -- was the contributing factor in Vittitow's decision.
From Judge Hart's dissent:
As the appellant points out, this court committed a clear error by ignoring the obvious fact that the trial judge based his change-of-custody decision in large part on his finding that the appellant was a participant in some nefarious “cult.”
...As I stated in my dissent, even if it were proven that the appellant was a practicing Wiccan, that conclusion can have no bearing on the decision to change custody. The majority makes a clear mistake of fact because there is absolutely no evidence that practicing Wicca was in any way harmful to the child or even that there were any practices conducted in the child’s presence. Accordingly, this cannot be a reason for changing custody.
... Finally, I am compelled to mention that the appellee’s intemperate response to the appellant’s rehearing petition was not only inappropriate but was vile and slanderous. He argues, among other things, that the majority was correct to allow the trial court to make a custody decision based on his perception of the appellant’s religious beliefs because not all religions are worthy of constitutional protection. He denigrates Mormons, asserting that “Mormons practice incest and child marriages,” and proclaims that “Wicca is a cult, not a religious belief.” He admonishes that “this court is committing a grievous error if it allows cult activities to be protected” and that the “trial judge appropriately ruled in this case after carefully considering the facts.” In light of the appellee’s further illumination of this issue, I simply cannot say that the trial court’s decision was “appropriate.” I lament that this court has accepted the appellee’s invitation to embark on a grand inquisition.