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]

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]

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

[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

[irishrosem]

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]

Mad: So what precisely does the First Amendment protect? Ay, there's the rub, eh Mad? And now we are left with constitutional interpretation