- Location
- Desert Beach So Cal
I thought that, as a friend of Mountain States Legal
Foundation, you would enjoy reading my monthly column,
"Summary Judgment".
I welcome your comments and suggestions.
Sincerely,
William Perry Pendley
President and Chief Legal Officer
P.S. If you would like to support the work of Mountain
States Legal Foundation, please click here.
BETWEEN A ROCK AND A HARD PLACE
This month, briefs will 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.
If you would like to support Mountain States Legal Foundation,
click here. MSLF’s sole source of support is the
tax-deductible contributions it receives from people like you.
============================================================
If you would like to unsubscribe from the Mountain States
Legal Foundation Monthly Columns or update your e-mail
address, please click here.
============================================================
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
Foundation, you would enjoy reading my monthly column,
"Summary Judgment".
I welcome your comments and suggestions.
Sincerely,
William Perry Pendley
President and Chief Legal Officer
P.S. If you would like to support the work of Mountain
States Legal Foundation, please click here.
BETWEEN A ROCK AND A HARD PLACE
This month, briefs will 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.
If you would like to support Mountain States Legal Foundation,
click here. MSLF’s sole source of support is the
tax-deductible contributions it receives from people like you.
============================================================
If you would like to unsubscribe from the Mountain States
Legal Foundation Monthly Columns or update your e-mail
address, please click here.
============================================================
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
