It’s a cloudy morning in Lansing, and as usual, I’ve arrived before dawn. The coffee has started to work and I’m knee deep in research. A colleague strolls into my office and wants to know why I’ve got a pentagram splashed across my computer screen.
“Pagan witchcraft,” I reply.
Just another typical day at the office.
Retailers are rarely caught off guard as they’ve seen it all. Whether it’s unusual orders, fraudulent activity, theft, or even medical emergencies, retailers are accustomed to rolling with the punches and hosting all sorts of visitors.
The MRA team did pause, however, when we got a question about whether a “No Shirt, No Shoes, No Service” policy discriminated against the Wicca faith. Citing the First Amendment and Michigan’s Elliott-Larsen Civil Rights Act, the patron claimed that the retailer’s policy violated her religious belief that required her to walk barefoot whenever possible.
I’ll be honest, prior to my research, my knowledge of the Wicca faith was pretty limited and possibly clouded with stereotypes on witchcraft. The truth is, the Wicca faith is difficult to pin down because it has no central authority, resulting in many different denominations or Traditions as they’re called.
Older versions of Wicca are duotheistic, with followers worshiping a Goddess and God, while other versions see God as a single, supreme and infinite energy referred to as the Great Mother. And while magic is performed, Wiccan will point out that some Wiccan are witches, but not all witches are Wiccan. Perhaps the most common shared belief among the Traditions comes from the following principle: “Do what you will, so long as it harms none.”
The patron who wanted to walk barefoot through the retailer’s store likely adhered to an animistic Tradition, with the belief that every human, tree, animal, stream and rock has a divine spirit within.
Because Wicca isn’t a mainstream religion and since it has so many variations, you may be wondering whether it is even a religion entitled to protection by the First Amendment and other applicable laws. In fact, the Fourth Circuit Court of Appeals evaluated this very issue in 1986. At issue in Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986), was whether Herbert Dettmer, a Virginian prisoner, should be granted access to certain ritual objects, such as a robe, candles and sulfur, that he claimed he needed in order to perform certain Wiccan rituals. The Department of Corrections denied access to the items on grounds that the items would endanger prison security and that the Wicca faith was merely a conglomeration of occult practices.
The Eastern District of Virginia concluded that Wicca was a religion and entered an injunction preventing the Department of Corrections from denying Dettmer access to the items. On appeal, the Fourth Circuit affirmed in part and reversed in part. Most significantly, the Fourth Circuit agreed that Wicca was a religion, entitling Dettmer to First Amendment protection. However, the Court found that Dettmer was not entitled to possessing such items because the prohibition did not discriminate against him based on his beliefs. In other words, the Department of Corrections had similar restrictions for all inmates and had reasonable concerns regarding security.
OK, so the Wicca faith is entitled to religious protections, but must you accommodate a barefoot patron? Michigan’s Elliott-Larsen Civil Rights Act prohibits discrimination in places of public accommodation based on religion, race, color, national origin, age, sex, or marital status (MCL 37.2302).
The question here though is whether a “No Shirt, No Shoes, No Service” policy discriminates on the basis of religion. We reached out to the Michigan Department of Civil Rights (MDCR) and they agreed with our interpretation that the policy was not discriminatory on its face. In other words, the policy applies to everyone in a neutral manner.
However, the MDCR did caution that a neutral policy could have a discriminatory impact and it recommended that the retailer engage in a discussion with the patron to see if a reasonable exception could be made to accommodate the patron’s religious beliefs.
While MRA agrees that it’s a good idea to work with your patrons to avoid conflict, we also understand the liability implications of allowing barefoot patrons in your stores. We believe that a court would likely side with a retailer that the policy is not discriminatory and constitutes a reasonable health and safety restriction imposed by the retailer.
For those who are wondering, the pentagram represents the five elements of water, fire, earth, air and spirit.
