Break With the Past

The religions that lie outside the American mainstream sometimes are denied the respect accorded to more traditional faiths, but they have usually found protection from actual government interference in the courts. But, this week, in a case involving the religious practices of the Yurok, Karok and Tolowa Indians of Northern California, the U.S. Supreme Court handed down a decision that rejects 25 years of legal history and adopts so narrow a view of the First Amendment’s guarantee of free exercise of religion that it also troubles the mainstream religious leaders who backed the Indians.

The 5-3 ruling upheld the U.S. Forest Service’s plan to develop commercial logging in the Six Rivers National Forest by paving a six-mile road through an area that has been sacred ground to the Indian tribes for generations. The Indians traditionally have traveled to the area they call the “high country” to carry out religious rites because there they were assured of privacy, silence and an undisturbed natural setting. Justice Sandra Day O’Connor, author of the majority opinion, acknowledged that the road’s noise and traffic “could have devastating effects on traditional Indian religious practices,” but she said the First Amendment has no application because the Forest Service has not coerced the Indians to follow practices inconsistent with their religion.

In a series of cases dating from 1963, the Supreme Court had sided with practitioners of minor religions in First Amendment disputes with government authorities, from Amish farmers who challenged compulsory education for their teen-age children to Seventh-Day Adventists denied unemployment insurance because they refused jobs that would require them to work on Saturday, their sabbath. Justice O’Connor, putting the same spin on those earlier cases that had been urged by the Forest Service, said they stand only for the proposition that the authorities may not force Americans to violate their religious beliefs and may not penalize anyone for practicing his religion. No one had ever before put forward such a restricted interpretation of those decisions.

Justice O’Connor also declared that the Indians had far less to complain about than did the Amish or the Seventh-Day Adventists, though it seems to us that, to the contrary, the Indians are left worse off. The Forest Service’s project, if implemented, will make it nearly impossible for the Indians to practice their religion; they can’t simply pick another sacred ground. That wasn’t true of the Seventh-Day Adventists, who suffered only in their pocketbooks, or of the Amish, however much they feared that a public high school would contaminate their children.

In legal terms, the majority opinion seems indefensible: How can a project that would virtually destroy a religion be held not to infringe upon the free exercise of that religion? The opinion is best explained on purely pragmatic grounds: The court was very much aware that, around the country, dozens of Indian tribes have objected, on religious grounds, to projects the government has proposed on federal land. If the majority had sided with the California tribes, such a decision would have limited the government’s ability to manage vast expanses of federal property. As Justice O’Connor acknowledged, putting the Indians’ beliefs first “could easily require (for them) de facto beneficial ownership of some rather spacious tracts of public property.”

Interestingly, the road across Six Rivers may never be built. The road faces further litigation over environmental concerns and, economically, it no longer makes much sense. The 1984 California Wilderness Act declared most of Six Rivers, including the “high country,” wilderness area and prohibited logging there. One would think there would be no reason to build a logging road where logging is banned. Thus, it is possible that the California tribes may yet be able to carry on their religious rites unfettered; sadly, because of this Supreme Court precedent, other tribes will not be so lucky.