Lyng and the assumptions underlying the First Amendment

Reading Lyng v. Northwest Indian Cemetery Protective Ass’n really underscores for me how historically contingent even the most seemingly universal principles of constitutional doctrine are.

In Lyng, the Forest Service wanted to build a logging road through the Chimney Rock section of the Six Rivers National Forest. Indian tribes opposed the project, because the area was sacred to them and necessary to certain important religious ceremonies. The Forest Service’s own anthropological study found that the tribes’ religious rituals were site-specific, and that

successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.

After litigation in the lower federal courts, the Supreme Court found that the proposed federal action did not violate the tribes’ First Amendment right to the free exercise of religion. Justice O’Connor, writing for the majority, held that the very structure of the First Amendment did not allow for the kind of relief the tribes were seeking:

It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit” . . . [T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.

(citation and internal quotation marks omitted)

We can quibble with the wording here — are the tribes really trying exact something from the government, in the sense of demanding a property right? (O’Connor later indicates that she views the issue as exactly that, adding somewhat snippily that “[w]hatever 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.” How, exactly, the U.S. government came to own that land should perhaps be left alone for the purposes of this post.)

But the general principle is probably correct: the First Amendment is simply not intended to deal with this kind of problem. Which is to say, it was not written with site-specific religion in mind.

The dissent in Lyng (Justice Brennan, joined by Justices Marshall and Blackmun) observed that

for Native Americans religion is not a discrete sphere of activity separate from all others, and any attempt to isolate the religious aspects of Indian life is in reality an exercise which forces Indian concepts into non-Indian categories. Thus, for most Native Americans, the area of worship cannot be delineated from social, political, cultural, and other areas of Indian lifestyle . . . .

In marked contrast to traditional Western religions, the belief systems of Native Americans do not rely on doctrines, creeds, or dogmas. Established or universal truths—the mainstay of Western religions—play no part in Indian faith. Ceremonies are communal efforts undertaken for specific purposes in accordance with instructions handed down from generation to generation . . . . [Their] value lies not in their ability to explain the natural world or to enlighten individual believers but in their efficacy as protectors and enhancers of tribal existence. Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. Rituals are performed in prescribed locations not merely as a matter of traditional orthodoxy, but because land, like all other living things, is unique, and specific sites possess different spiritual properties and significance. Within this belief system, therefore, land is not fungible . . . .

(citations, some brackets, and internal quotation marks omitted)

Brennan’s contrasts with “Western religion” are quite instructive. The Framers of the Constitution were overwhelmingly Protestant Christians, with a few Catholics, non-denominationals, and deists sprinkled in for leavening. Generally, their conception of “religion” involved a lot of belief, a small amount of token ritual, and practically no use of non-fungible sacred items or land. They tended to speak of “freedom of conscience” — for them, religion was primarily about an internal mental state. Madison wrote of “unshackling the conscience from persecuting laws,” which he considered a “truly Xn [Christian] principle.” Jefferson similarly saw religion as entirely internal, with no consequence in the physical world: “[I]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” A corollary is that nothing in the physical world is necessary to religion, either.

Thus, for the Framers (and for most Americans, then and now), the “free exercise of religion” meant primarily activity in the realms of feeling and reason. The physical world mediated this process, of course — reading scripture, proselytizing, going to church, and so on. But the physical world itself was spiritually neutral — a means of conveying religious ideas, but not itself sacred. Thus, any particular site was as good as any other for building a church; no particular wood was required to fashion a cross.

We can imagine a rather different First Amendment emerging if the Framers had been Yurok or Lakota. If the predominant religion around the time of the Revolution had involved site-specific worship practices, it might well have been unthinkable for the right of free exercise not to include substantial protections against government desecration of important places.

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Of course, imagining a First Amendment that provides protections for sacred sites poses difficulties of its own. The tension over the Temple Mount/Dome of the Rock site in Jerusalem neatly illustrates the problem — where more than one religion faction lays claim to a particular sacred spot, the government will probably end up playing referee to multiple, potentially-hostile groups.

Much of the tension between Jews and Muslims at the Temple Mount (less so Christians, for whom, again, religion is more internal) is rooted in another feature of Western religion: the claim to exclusive truth. Many indigenous traditions — which as Brennan points out, are not rooted in creed — would likely not exist in such acrimonious disharmony. Still, it is at least theoretically possible that Indian claims about sacred land could run up against a non-compatible claim by some other group. Indeed, in the Devil’s Tower/Mato Tipila climbing controversy, the Park Service implemented a first mandatory and later voluntary moratorium on climbing on the formation during June, in order to accommodate Indian religious observations. Some of the more obstinate climbers, who continued to climb in June despite the Park Service’s request that they not do so, were interviewed for the film In the Light of Reverence. Some of the climbers argued that climbing Devil’s Tower was a spiritual experience for them, too — they considered climbing akin to going to church.

In our hypothetical America where the First Amendment is drafted with Lakota, rather than English, religious experience in mind, how should the government juggle these competing religious claims? Should the court try to balance the needs of the two parties under a reasonableness standard? Should the number of adherents to a particular sacred-site-based religious or spiritual practice play into the determination of reasonableness? Should the intensity of the religious feeling? The historical pedigree of the belief? Would a climber who belonged to the First Church of Climbing, Tax-Exempt Entity, have more of a claim than one who has an idiosyncratic spiritual relationship with Devil’s Tower? Finally, should a court consider the possibility that the climbers’ claim is mostly facetious?

With a respectful nod to the slippery slope, I’m not sure that these kinds of problems are insurmountable. In Lyng, the Supreme Court disavowed any ability to distinguish between religions:

These efforts to distinguish [Bowen v.] Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, and accordingly cannot weigh the adverse effects on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual’s spiritual activities should be subjected to a different constitutional analysis than the other.

(citation omitted)

But if we understand sacred-site protection as something like the “reasonable accommodation” analysis in disability law, for instance, we are not necessarily inquiring about the “truth” of the religious belief; we are simply asking whether it is reasonably possible for the government to arrange things in a way that accommodates the religious practice. If that sounds like a soft standard, it is; it would almost certainly look more like 4th Amendment jurisprudence, with its competing security and liberty concerns, than what we think of as the more absolute protections provided by our current First Amendment. But that kind of absolutism is probably an artifact of a particular historical view of religion that happens to accommodate simplicity of analysis.

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It’s tempting to think that a clearly-stated principle that we are used to dealing with is better than other alternatives; that it has a kind of universal appeal that is, well, “self-evident.” But modern liberal-democratic thought is really still in its infancy. There may be many plausibly liberal and “freedom”-enhancing ways to organize a society; each may come with certain tradeoffs, and each may enable different kinds of freedom, or enhance the pursuit of different kinds of happiness.

Our approach to religious freedom tends to emphasize the absolute liberty of the individual’s conscience over all other concerns. That may be a choice we’ve made on a purely normative basis — perhaps it is entirely driven by values. But we should keep in mind two things. First, ease of administration may also play a role here; our approach lets courts avoid making difficult determinations about things like the intensity, longevity, and comparative worth of different spiritual modes. That is a practical, rather than principled, reason to do things the way we do. And second, both the legal framework and our values themselves reflect a particular historical experience of religion and religious oppression. Others, with different experiences, might have chosen differently.