Snowbowl and the sacred mountains

George Ricker

Mad: ... this case really does cut to the heart of how much we're willing to accomodate beliefs that differ from our own.

But doesn't this go way beyond mere accommodation?

In my view it's accommodation that the various tribes are allowed to erect religious shrines and conduct religious services on public lands. It's accommodation that we, as a society, recognize the importance of these mountains to their religions.

However, the notion that, because something someone else does on a particular part of a particular mountain may offend their religious sensibilities, the tribes get a veto on religious grounds stretches the idea of religious accommodation into a whole new area.

Using treated effluent might well raise health and environmental concerns, and certainly those ought to be thoroughly explored. It also might cause potential customers to think twice about coming there because of concerns, whether warranted or not, about skiing on artificial snow make from such a source.

But, assuming the health and environmental questions have been satisfactorily dealt with, the notion that using the artificial snow desecrates a "sacred" place should have no relevance in a court of law. What is "sacred" only has relevance within a given religious context. It is hardly binding on the rest of society.

Certainly we may make note of religious conventions and try to avoid giving offense to others -- I'm sure that's something most of us do quite often, but, as I said earlier, I don't think religious considerations can or should trump all others.

George

http://www.godlessinamerica.com

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

MadArchitect

Rose: The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Right; and part of what I'm getting at is that the structure of our civilization and the structure of our government may well make that impossible.

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Me: The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Mad: Right; and part of what I'm getting at is that the structure of our civilization and the structure of our government may well make that impossible.

The structure of our government does not make the restriction on the prohibition of free religious exercise impossible; it makes the special accommodation for religion that you would like to interpret from the First Amendment impossible. But let me again reiterate that accommodation is not supported by free religious expression clause jurisprudence, nor does it seem evident that it was part of the Framers’ intent. You, like the Congress who passed RFRA and the President who signed it into law, seem to think that accommodation for religion should be part of First Amendment jurisprudence, it is not. So can I take it then (since you seem to refuse to answer directly) that you support RFRA’s efforts to accommodate religion despite its violation of the establishment clause, and its disregard for the separation of powers?

MadArchitect

Rose: The structure of our government does not make the restriction on the prohibition of free religious exercise impossible; it makes the special accommodation for religion that you would like to interpret from the First Amendment impossible.

Again, you misinterpret my point here. I'm not arguing that the First Amendment should be interpreted to allow for special accomodation. What I'm arguing is, that the restriction against prohibiting free religious exercise is probably impractical given the circumstances of American society. The Snowbowl case gives a shadowy illustration of how those circumstances begin to conflict with genuinely free religious exercise. The Native American plaitiffs are presumably free to exercise their religion because no law prohibits that exercise; however, there are laws in practice that indirectly limit their ability to practice their religion by de facto imposing a foreign set of values on natural features that make up a central part of their religion.

I say "shadowy illustration" because, granted, the obstruction here is fairly roundabout. If you take a different religious tradition, like Haitian Voodoo, the problems become more apparant. Voodoo religious ceremony involves animal sacrafice, and while Voodoo has made some inroads into the American landscape (most notably in New Orleans and New York), it remains very much in the underground, in part because of the legal complications that arise from this particular practice.

What it looks like to me is that, historically speaking, the provision that government should pass no laws prohibiting free religious exercise may have been conceived very broadly, but was designed with Eurocentric religious traditions in mind. Which is all fine and well so long as you can construe all religions as essentially synonymous, but in practice they prove to be otherwise. My current thinking on the matter is that there is no way to guarantee free religious practice; there is always the potential for some obscure religious tradition to develop into religious exercise some ritual that conflicts with what the rest of society considers moral or legal tabu. That is not a failing specific to the American Constitution or the American legal system. All legal systems are probably prone to the same conflict of interests.

What I'm saying, in effect, is that, practically speaking, most governments will ultimately have to pick and choose which religions they'll accomodate -- and by accomodate, I don't mean special accomodation, but the accomodation that arises from the very ways in which they structure the society of the governed. Three hundred years of development has resulted in an American society so structured that there likely is no real place for the Native American veneration of the natural landscape -- our legal system simply does not protect the same set of values, and it's absurd to behave as though the values protected by the EPA are assimilable to the religious values of the Navaho and Hopi on a 1:1 ration.

I've made a big deal out of the matter mostly because I don't think it's healthy for us to kid ourselves on this. Free religious exercise is very likely an unreachable goal, and it strikes me as being little more than realistic to suggest that, for the long term, it would be prudent to consider how facing up to that changes the "American experiment".

So can I take it then (since you seem to refuse to answer directly) that you support RFRA’s efforts to accommodate religion despite its violation of the establishment clause, and its disregard for the separation of powers?

I don't know how else to explain this: I know so little about the RFRA that I couldn't say either way. Based on what I've gleaned from reading what you've said about it, I'd say likely not, but that's still an opinion formed only from the barest of second hand information.

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Mad: Again, you misinterpret my point here.

As far as I can see, I’m not misinterpreting your point. You think the First Amendment rendering it unconstitutional for Congress to make laws that prohibit free religious exercise equates to a presumption for the free exercise of religion across the board. I don’t know how else to say it. This is certainly not the case—that is an interpretation of the First Amendment without supporting caselaw. The jurisprudence does not back it up; and the Framers evidently had no such intention. If for no other reason, the Framers recognized, as you have stated, that all the world’s religions in each and every instance cannot possibly be accommodated by the state. What I’m saying, Mad, is that your interpretation of the free religious exercise clause is not supported by the caselaw and not supported by history. According to the jurisprudence, the clause does not grant free religious exercise forever and always, regardless of competing state interests.

In the instant case, Congress did not make any law prohibiting free religious exercise—it, in fact, did not make any law at all. Rather, it granted the use of federally owned land for a ski resort. That the use of such land affects rituals of nearby religious groups does not violate First Amendment restrictions on Congress regarding free religious exercise. Which is why Plaintiffs appealed to RFRA (an unconstitutional law more in line with how you seem to wish the courts to interpret the free exercise clause) and not the First Amendment.

Mad: I'm not arguing that the First Amendment should be interpreted to allow for special accomodation. What I'm arguing is, that the restriction against prohibiting free religious exercise is probably impractical given the circumstances of American society.

Mad, I note that you raise the same issue in the Chapter 7 discussion on religious accommodation for medical treatment. I think, perhaps, it would be wise to combine the question into one thread, or even a new thread rather than answer bits and pieces here and there. The issue, it seems to me, is that we are working from two enormously different assumptions of what the free religious exercise clause entails. I would be very interested in the discussion, but for it to be useful to me (i.e. justify the necessary time consumption) I would need to know that the discussion would be informed by U.S. jurisprudence. Philosophy is interesting, but you don’t argue philosophy before a judge, you argue caselaw. The point is, this could possibly put you at a disadvantage because, as I said, the caselaw as far as I know supports my position. (In fact, my position is probably largely informed by the caselaw.) That is not to say that caselaw is always right, and I’m certainly not saying that my interpretation of caselaw is always right. But for me to join this discussion would require us to look at the caselaw, which I’m not sure you are interested in doing. In fact, the reliance on caselaw may actually be antithetical to how you wish to discuss the Constitution. (Again, interesting but not useful for me at this time.) So what do you say, can we proceed under the umbrella of American jurisprudence? I figured I would get the answer to this before I bothered with the rest of the post.

Mad: I know so little about the RFRA that I couldn't say either way.

Seriously read it.

MadArchitect

Rose: You think the First Amendment rendering it unconstitutional for Congress to make laws that prohibit free religious exercise equates to a presumption for the free exercise of religion across the board.

So what precisely does the First Amendment protect? What assumption underlies any particular decision determining whether or not a law violates that clause by prohibiting religion? If it is still possible to raise laws that do, in effect, prohibit religious exercise, then I suppose the big problem here is that I fail to see the value of that particular clause. If anything, it looks to me as though it functions to implicitly condone some forms of religion while implicitly outlawing others. How that squares with either the intent or the normative interpretations of the First Amendment is beyond me, and I'm not sure, in retrospect, that I at all understand the point of the clause in the first place.

What I’m saying, Mad, is that your interpretation of the free religious exercise clause is not supported by the caselaw and not supported by history.

And what I'm now asking is, what interpetations, if any, are supported by history and caselaw? (And then, as a follow up, are those interpretations that we feel ought to be maintained?)

In the instant case, Congress did not make any law prohibiting free religious exercise—it, in fact, did not make any law at all.

That may seem to be the case from the specific vantage of modern American judicial practice, but the contrast between American governmental practice and pre-colonial Native American governmental practice illustrates that the differences in those laws are pretty central to the case. Native American social and political practice likely would not have made it possible for a commercial interest to endanger the religious claim. But so many of the post-colonial American legal system is set up in defence of a brand of ownership that was never really recognized by the culture responsible for developing Native American religious practice. I'm not talking about any one specific law that has been passed in recent memory, the effect of which has been to discourage Native American religious practice. What I'm talking about is a entire network of laws that, for reasons of cultural difference, presupposes a distinct set of values. Those values stand in contradiction to both the political and religious values of the Native American plaintiffs, so they're almost predistined to lose out on this.

Whether or not the framers of the Constitution supposed it was possible to structure American government such that it could tolerate every contemporary form of religion is beside the point in this specific instance. What I'm trying to point out is that the judicial structure of this country was (both intentionally and unintentionally) built in such a way that it excluded a set of religious traditions that already inhabited the American landscape. If 18th century Zen Buddhists were to find that their religious practice was unconformable with American law, they had the luxury of not immigrating to America. That the Native American tribes found themselves being increasingly subjected to laws that either disposed of their right to exercise their previously existing religious traditions, or which made likely forms of society that would inevitably marginalize those traditions until they were entirely impracticable, seems to me a pretty specific challenge to the idea that the United States government didn't favor some religions over others.

That, ultimately, is the problem I have with the way the First Amendment is being interpretted in instances like this. It isn't that I think the Constitution could, or even should, protect all forms of religious exercise -- even in theory. It's that the clause fails to recognize the ways in which laws that presumably are not about religion in any explicit way serve to structure American society so as to favor particular religions, specifically religions that share or can accomodate the values and presuppositions that undergird those laws -- such as private ownership, usufruct, etc. That the Constitution cannot guarantee freedom of religious exercise to all traditions probably would not have bothered the Framers or most people involved in caselaw all that much, but I suspect that the idea that it failed to ensure against implicit favortism towards specific religious traditions probably would have.

The issue, it seems to me, is that we are working from two enormously different assumptions of what the free religious exercise clause entails.

It's probably a mistake to reflect what I'm saying here back on your perception of how I interpret that clause entails. What I'm worried about is not so much what the significance of that particular clause is or ought to be, but rather on the ways in which American political philosophy is grounded in the ideals and concepts generated by Western Christian thought, and the ways in which that relationship limits the degree to which American government can function as a distinctly secular agent.

But for me to join this discussion would require us to look at the caselaw, which I’m not sure you are interested in doing.

Actually, I'd like to look at specific caselaw. But I'd like to prep by reading something that would prepare me to evaluate the genre of caselaw. If you could suggest some other source I can go to, just so that I avoid making all of the most basic mistakes, I'd be more apt to comment on any particular caselaw you set before me.

me: I know so little about the RFRA that I couldn't say either way.
Rose: Seriously read it.

I'm afraid it's going to have to wait until later on in the week. I only have about a quarter of an hour left before I need to log off.

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Mad: Voodoo religious ceremony involves animal sacrifice…

Heh heh heh…I know you had no intention in starting a sidetrack discussion on animal sacrifice, but this is an interesting, relatively recent, SCOTUS decision on animal sacrifice within the Santeria faith. Thought you might enjoy it. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Sorry for the delay, it took me a couple extra tries to find the case. I first read a little while ago.

Edited by: irishrosem at: 7/17/07 6:16 pm

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

Mad: So what precisely does the First Amendment protect?

Ay, there’s the rub, eh Mad? And now we are left with constitutional interpretation—hardly an exact science. I imagine my interpretation of the Constitution is likely to be very different than yours, and probably not very helpful to you, but since you asked…

The purpose of the First Amendment is to eradicate the government’s hand in religion altogether. I read the religion clauses as flip sides of the same coin, as the religion clauses are often described within First Amendment discussions. But I do so in a very literal way—meaning that the First Amendment religion clauses have one core purpose, which is expressed in two restrictions on the government (Congress). The clauses’ purpose is to eradicate government’s role in religion altogether; the clauses achieve this purpose by stating that Congress cannot establish religion, nor can it prohibit religious exercise. The amendment specifically articulates that Congress shall make no law prohibiting the free exercise of religion. The amendment does not articulate these restrictions by stating that Congress shall make no law that has the effect of prohibiting the free exercise of religion.

Mad: If it is still possible to raise laws that do, in effect, prohibit religious exercise, then I suppose the big problem here is that I fail to see the value of that particular clause.

And this is how the above interpretation of the First Amendment is criticized. And you are in good company, Mad, as Justice O’Connor stated in her concurring Opinion in Employment Division v. Smith, “If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.”

I’ll ignore O’Connor’s misplaced accusation that a literal interpretation of the First Amendment is actually a “construed” interpretation. The real sin in her denouncing the religion clauses, when directly and literally interpreted, as not having “any vitality,” ignores the very history in which the First Amendment was penned. The Framers did not take for granted, as O’Connor now evidently does, that a State “directly target[ing] a religious practice” is an “extreme and hypothetical situation.” In fact, the Framers had daily reminders from within their own colonies, now states, and from Europe, that governments normally directly target, and attack, free religious exercise. To assume that the amendment has no value, or “vitality,” today, merely because it has successfully accomplished its purpose over the past 200+ years, and therefore must be read with a different intent seems like preposterous logic to me. Apply the same reasoning to the Third Amendment. Should we read further into the quartering amendment just because it is an “extreme and hypothetical situation” to imagine the State forcing soldiers to be quartered in citizens’ private homes? A federal government that could establish a state religion, or make laws that prohibit the free exercise of religion, was a very real threat to the Framers. That threat was therefore addressed by the religion clauses of the First Amendment. But I think it’s irresponsible to presume the clauses intended to grant religious accommodation to generally applicable laws made in the state’s interest. Consider Thomas Jefferson’s own perspective on the matter as quoted in Reynolds v. United States, 98 U.S. 145:

Quote:
Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties. [Emphasis mine]

Mad: That the Constitution cannot guarantee freedom of religious exercise to all traditions probably would not have bothered the Framers or most people involved in caselaw all that much, but I suspect that the idea that it failed to ensure against implicit favortism towards specific religious traditions probably would have.

I don’t think the Constitution failed us in that respect; I would say that the pandering, largely Congress’s pandering, to the religious majority—something from which the First Amendment was surely meant to protect—would be a problem for the Framers. At least, it’s certainly a problem for me. Mad, I don’t disagree with your argument that the U.S. government, in many ways, has come to both implicitly and explicitly favor certain religions—largely Christian religions and, to a lesser degree, Judeo-Christian religions. It does. But the favoring of Judeo-Christian traditions violates the establishment clause—the other side of that same coin. Recognizing that violation does not make me amenable to accommodations for other lesser-established, or non-established, religions. That would only be compounding the problem. The religion clauses serve us well. Government should not be in the business of directing any kind of special attention—good or bad—at religion. In recognizing that many U.S. laws—particularly laws directed at victimless crimes—establish religion, I assert that, rather than accommodating other religions who violate such laws, we work at eliminating the laws altogether.

Now I know that this last part does not, at all, address your issue with American Indian use of sacred land. And that’s because I don’t think the U.S. land use laws, the “brand of ownership” set up by the “post-colonial American legal system” violates the establishment clause. U.S. land use laws serve the state (and though I recognize those laws serve a state that benefited from the genocide of the native peoples and cultures in America—not to be heartless—that’s not at issue in the First Amendment clauses we are discusses). The laws, which serve a legitimate state interest, are also equally applicable. To accommodate when those laws affect the religious practices of certain groups violates the establishment clause. As does RFRA and most of its efforts.

Incidentally, Mad, my direct reading of the religion clauses is part of the reason why I hesitate to get behind judicial restrictions on state taxes to private schools—even though personally I don’t want any state money going to private schools. The establishment clause states, “Congress shall make no law respecting an establishment of religion.” I’ve never been convinced that taxes to private sectarian schools is necessarily an act respecting the establishment of religion (i.e. with the express purpose of establishing religion). I think it can be well-argued that money to these private schools serves the state interest in financially supporting the education of its minors. And that’s not to say that I don’t think there is a different argument to be made regarding state money to private schools; I just think the argument is misplaced in the establishment clause. So, at least, I’m consistent on those literal interpretations, even when they don’t serve my personal interest.


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