Demanding Accountability
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Between a Rock
and a Hard PlaceBy William Perry Pendley
MSLFIn August, briefs were to be filed in the U.S. Court of Appeals for the Ninth Circuit in a case that may resolve what has been, over the last year, a constitutional anomaly. In 2004, one Ninth Circuit panel held that a Latin cross, erected on federal lands to honor those who gave their lives in World War I, violated the Establishment Clause and must be removed. Later, another Ninth Circuit panel held that Arizona’s designation of private property as sacred to American Indians and off limits to use did not violate the Establishment Clause and could stand! Thus, “no” to Christianity; “yes” to pantheism. The Ninth Circuit refused to hear the Arizona case en banc to resolve this conflict.
Now comes a case from a Nevada federal district court that could force another Ninth Circuit panel to decide which panel’s view of the Establishment Clause is correct. The case, Access Fund v. U.S. Department of Agriculture, et al., challenges the district court’s ruling that the Forest Service’s decision to close Cave Rock at Lake Tahoe to all climbing because it is sacred to some American Indians does not violate the Constitution’s Establishment Clause. In rejecting the climbers’ constitutional argument, the Nevada federal district court relied on the Ninth Circuit panel’s ruling in the Arizona sacred private lands case. Held the Nevada court: “The Establishment Clause does not require government to ignore the historical value of religious sites[;] protecting culturally important Native American sites has historic value for the nation as a whole because of the unique status of Native American Societies in North American history.”
However, the Nevada district court’s ruling ignores that, for the past 30 years, the “history” and “culture” associated with religious symbols embraced by governments have not saved them from court rulings that those governments had abandoned their constitutionally required neutrality. For example, in last year’s panel’s ruling regarding the Latin cross, its historical and cultural importance as a symbol that 116,000 Americans left their homes and families and gave their lives in Europe must, indeed, be “ignore[d]” given what the cross represents. What is “unique,” therefore, about American Indian religion that would permit its practitioners to demand to go where other religions dare not: the public square? In a word, “nothing;” in fact, that is what the U.S. Supreme Court ruled back in 1988.
In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court, in a Justice O’Connor opinion, rejected the demands by three American Indian Tribes in northwestern California that portions of the national forest traditionally used by them for religious purposes be closed to logging and road building: “Nothing in the principle for which [the Tribes] contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but their own from sacred areas of the public lands. . . . Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.”
Yet even if the Lyng case were not the binding legal precedent that it is, Establishment Clause jurisprudence makes clear that the Forest Service’s decision at Cave Rock runs afoul of every traditional Supreme Court test, for the Forest Service’s action “advances,” “endorses,” and “entangles” itself with American Indian religion. By agreeing with American Indians that Cave Rock is sacred and by rejecting the view of climbers that it is not, the Forest Service “conveys a message of endorsement,” informing American Indian religious practitioners that they are “insiders” and the climbers that they are “outsiders.” Indeed, the Forest Service is not demanding that non-Indians simply “respect” American Indian religion; it is “employ[ing] the machinery of the state to enforce religious orthodoxy” that views Cave Rock as sacred!
If the Ninth Circuit fails to get it right, the Supreme Court awaits.
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