Tom Jones Jr. and Tammy Burch believe a local court's decision restricts their freedom of religion
Sitting under a tree in Broad Ripple Park, Tom Jones Jr. remembers the day that changed his life. At the end of the divorce decree that had given him custody of his son, in the second to last paragraph, Marion County Superior Court Commissioner Mary Ann Oldham had forbidden him from teaching his religion to his 9-year-old.
Jones says the park is where he feels most at home. He is Wiccan. The religion is a derivative of paganism that stresses respect for the environment and extensive personal freedom. Shaking on his picnic-table bench, Jones remembers his reaction to the ruling: "What?" He says he couldn't believe the court could force him to "shelter" his son Forest from Wicca. (Ed. Note: Forest is not his real name.)
But it had, and in a ruling that is being appealed with the help of the Indiana Civil Liberties Union, Marion County Superior Court Civil Judge Cale Bradford upheld the decree. It was Bradford's job to oversee the work of commissioners like Oldham. He agreed with her decision: Jones and his Wiccan ex-wife, Tammy Burch, were to "take such steps as are needed to shelter Forest from the involvement and observation of these non-mainstream religious beliefs and rituals."
Although the court did not clarify its language, the parents felt they were forced to assume that the prohibition of "non-mainstream religious beliefs and rituals" was targeted against Wicca. A parent who fails to follow a divorce court's ruling faces being declared in contempt of court or losing custody of their child. Unless a higher court overturned Bradford's decision, Jones and his ex-wife were faced with the possibility that they might never be able to teach Forest their religion. These days, when Jones takes his son to a park, he's careful to watch his words.
When Tom Jones Jr. went to Bishop Chatard High School in the 1980s, he knew he would never become a Catholic, but the school didn't have objections to his religious search. Over the years, he called himself a Shaman, an Animist or a follower of Native American religions. He describes a long journey to find a religion to call his own, but along the way the state didn't interfere and his family generally accepted him.
Tammy Burch says her parents were less receptive of her unorthodox inclinations. She and Jones met in September of 1994, when Burch joined a Wiccan group of which Jones was a member. They hit it off, started dating and were married on Feb. 1, 1995.
They were both passionately involved in Wicca, and Jones was vocal about his religion. He wanted to get the word out about Wicca, one of the fastest growing religions in the United States. The numbers are difficult to estimate, but the City University of New York's 2001 ARIS study estimates the religion now has more than 400,000 adherents. Hundreds of thousands more follow related neo-pagan or naturalistic religions.
Jones had found that most people he met didn't know anything about Wicca, whose guiding principle is, in Jones' words, "Do whatever you want to, just don't harm anyone." Wicca is a religion that stresses devotion to multiple gods and goddesses and respect for the environment. Jones found that the biggest misconception people had was that Wiccans "don't respect life," which he stridently disagrees with.
"We don't run around drunk, naked and stoned," he says. "I have very strong ethics and morals."
Burch says colleagues and others around her frequently believed she claimed magical powers. She jests, "It'd be great if some of the things we're supposed to be able to do we could, like flying around or making ourselves win the lottery."
And when the couple had Forest, in 1995, they wanted to introduce him to their religion. He took to it eagerly, excited by Wiccan rituals like the Midsummer, a holiday where followers celebrate the longest day of sunlight.
The parents, with financial help from Jones' father, enrolled their son in a Catholic elementary school.
In May of 2003, the couple filed for divorce. After initial discord, it was a largely amicable split. There were no major issues of contention, so the pair figured they would get a speedy approval from the courts.
"Divergent belief systems"
The first hurdle was the Domestic Relations Counseling Bureau. The DRCB has a broad authority to determine factors that might affect a child's well-being. It usually asks detailed questions about the conditions of the child's family life. So when it started asking about Wicca, the parents weren't particularly concerned.
"There's a certain amount of combativeness built into the process," Jones says, but he and his soon-to-be-ex-wife were largely unconcerned about the bureau.
The bureau made its report, which is sealed, to Court Commissioner Mary Ann Oldham. It was her job to rule on the divorce, subject to final approval of a Civil Court judge. The parents appeared before her to answer questions on the case. What they didn't know was that the DRCB had included in its report a single passage on their religion.
"There is a discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school Forest attends. Ms. Jones and Mr. Jones are self-proclaimed pagans. Mr. Jones said he desires for Forest to remain in [his] school, because he believes it provided quality education; he noted his father provides for Forest's educational expenses. Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon Forest as he ages."
The DRCB believed Forest's Catholic elementary school upbringing would clash with what he learned from his Wiccan parents. Both parents say the school has been supportive of their argument in the case, and they both point to the frequent presence of non-Catholics at schools like Forest's as a counterargument to the bureau's position.
"I said, what?"
During the final divorce hearing in February 2004, Mary Ann Oldham, the master commissioner for Marion County Superior Courts 1 and 2, started questioning them about their religion, and at one point she asked something that shocked the pair: Do you worship Satan? They were startled - Wiccans see Satan as an Abrahamic concept, foreign to their cosmology. Jones remembers, "I said, 'Ma'am, I can't worship a deity I don't believe in,' then I apologized for my tone."
It wasn't until they got the commissioner's ruling that they fully realized where the line of questioning was heading. "I said, what?" Jones recalls. They were bewildered by the implications of the decree: They were now supposed to shelter their son from "non-mainstream religious beliefs and rituals." Wicca was not mentioned by name, and no definition of "non-mainstream" was given.
Displeased with the outcome of their case, the parents got a new lawyer, Alisa Cohen. They filed a motion for correction. When they entered the courtroom of Judge Cale Bradford on Nov. 17, 2004, the judge's demeanor took them aback. They say that like Oldham he seemed to be ill versed on the specifics and realities of their religion. Jones recalls that he was "not very open-minded," and Burch is more direct.
"The way that Judge Bradford said your religion like he had just said something nasty ... I get the feeling that he thinks we're all doing drugs and having orgies ... that there's a lot of stuff going on that makes our religion a whole lot more fantastic than it is."
Burch and Jones were considerably less enthusiastic about their prospects as they left the courtroom, and their fears were confirmed the next day. On Nov. 18, Bradford announced that Oldham's ruling would stand - their son couldn't follow their religion.
The court has released a statement through its spokeswoman, Beverly Philips. "The Judge and Commissioner involved in this case cannot comment about why certain decisions were made as it is pending appeal," she said.
"As the case sorts itself out over time, it will become clear why certain decisions were made. This is not an attack on Wicca or the First Amendment. The Judge and Commissioner support the constitutional guarantee concerning freedom of religion, but this case is not just about freedom of religion. It's about the court's obligation to protect minor children from certain rituals that might be harmful to their well-being, whether or not those things are affiliated with a religion."
Although it's unusual for the court to issue a statement on cases, Jones criticizes this one, saying it's an example of the court's general attitude towards him and his former wife. He says, "We are still trying to make sense out of the statement ... it indicates that they're unwilling to educate themselves about Wicca."
For the sake of the child
The legal saga is far from over. Forest's parents have appealed the case to the Indiana Court of Appeals with the help of the ICLU, and they are fairly confident of their chances. Deciding where to draw the line between parental liberties and child well-being is the difficult job of the court, but the parents contend Bradford overstepped the boundary.
Andrew Koppelman, a professor at Northwestern University who specializes in constitutional law and the enforcement of morals, says that the paragraph forbidding Forest from learning about Wicca "cannot be saved" because "the basic intention is unconstitutional."
Those who work more directly with the courts say that more guidance would have been necessary if the judges wanted to curtail specific rituals they thought were harmful.
Anne Applegate, a law professor at Indiana University and the director of the family and children mediation clinic there, is sympathetic with the general difficulty of making decisions in the best interest of the child, but says, "There's no specific practices or rituals that are being mentioned."
Bruce Pennamped, an Indianapolis divorce attorney, says that the appeals court will need to look closely at Bradford's reasons for the paragraph limiting their religious freedom. "If you're going to impose restrictions on parents which you perceive to be in the best interests of the child, you've got to show some evidence."
For now, no one can be sure what the court's motivations were. The first attorney for the parents would have had to ask for a special explanation of the ruling before the court appearances under what's known as Trial Rule 52, and it is now too late to do that.
Jones and Burch are so fearful of the possible repercussions of the decree that they say they have taken their son out of Unitarian Universalist Sunday school - they are afraid that it might count as "non-mainstream" because the state of Texas recently revoked Unitarianism's tax-exempt religious status.
Committed to religious freedom
And what about Forest? Jones and Burch have been adamant about sheltering him from the involvement and observation of reporters and photographers. But the picture they've painted is of a boy both confused and determined. For Jones, his inability to teach his child his system of ethics and morals has been "crippling."
The case was kept under wraps until Jones' story was told on the front page of The Star. Burch was at first reluctant to talk to the media, knowing that her family would not react well to the news that she was Wiccan. But now that she's "out of the broom closet," another unexpected effect of Bradford's ruling, she's more than willing. "It's about our son, so if we have to go all the way, we go all the way."
"He knows what's going on, he's very conscious of everything," Jones says.
Burch says Wicca is "a part of his life as much as it is ours." The parents are particularly upset about the court's order because they believe that its language may even obligate them to stop their child from independently pursuing Wicca.
"Here's the judge's accomplishment," Jones says, "to create a child or a future adult that's going to be very committed to religious freedom."
Jones says that response to the case has been overwhelming. He says he's repeatedly had to ask petitioners and demonstrators not to take action without his knowledge, pointing out that his child is still under the supervision of the court system until he is 18.
In January, two months after Bradford's decision, Forest's great-grandfather died. Forest was allowed to attend the Christian funeral, but Jones says it was a tough blow for his son, who enjoyed learning from the man.
When Forest's great-grandfather died, Jones was under court order to protect him from Wicca. Wiccans customarily observe a ritual on Halloween, called Samhain, a remembrance of the dead. The parents are hoping that Forest will be able to participate.
Jones, wiping back tears, tells of his sadness at not being able to involve his son in the ritual. "I want my son to be with me when I say goodbye."