Return to Freedom
Howdy,
I am sending this in four parts.. best case i ever read... many good things
in this case...
if forest service had not interferred with my legal process in montana
2000 and Idaho 2001, in violation of 18 USC 242, under color of this
regulation... forest service has done many tings to Gathering peoples and
myself personally... (this applies to the Penn 3 also.. under color of this
regulation the forest service developed this "national strategy" in a
conspiracy to violate the civil rights of those they selectively prosecuted
and all other Gathering attendees... and they used at least two tactics:
(1) harassmaent, citation, intimidation, to "force' the "bows' to
their will
(2) asked jeff kline (possibly others) to come to Gathering Land,
among Gathering peoples.. feed the "fiction of "elders" i.e. "leaders"...
and "manipulate' the "bows' into signing an application AND PERMIT.
forest service sending in Jeff Klne, to talk to "bows" and to talk to
them AND THEN using his "contact" with them to fit into their criteria as
"leader'... a "fiction" the forest service has been trying to perpetuate for
years... that there is "leaders", or "members'... Jeff Kline came to the
Gathering, not motivated byd what moves other folks... i.e. to Gather with
others in peace, BUT "on behest of' the forest service "to cut costs'...
how much JEFF realized or understood or not wil be found out in the
wash...
Regardless of his "inner" motives, he was doing it FOR THE USFS...
this constitutes a conspiracy to violate the civil rights of all
who come... particularily those who Gather and do so BECAUSE there is no
ruling 'authority", no "hierarchies"...
this is where i am at as I believe.. my rights have been violated..
and this constitued a conspiracy.. known by Resource and LEO... as part of
"national strategy"... jeff may have had the best of motives... but he came
"secretly" representing the forest service, while claiming to be a
'self-designated contact'.... in reality he was 'designated by the forest
service to enter the Gathering land and peoples... while there he worked to
establish the "fiction' that there are "elders'... (something he seems to
believe in - something totally objectionalble to me and everyone of the
folks who is listed as "leader" besides him... i have known all these folks
for years and they have lived and practiced being "simply individuals",
regardless of what others may claim)...
and by signing... application and permit... my "proposal" i.e.
application of notification.... in montana 2000, and in idaho 2001 were
obviously NOT going to have a fair hearing...
and when seeking "judicial review' a form of "suit"... my
application was given short shift by the Court in idaho... because the U.S.
Attorneys pointed out a VALID aplication and permit was signed.. thereby...
there is someone who can sign a permit... therefore the rainbow "ficition"
of having "no leaders, no hierarchy" is true... somethjing the feds have
been pushing inthe couirts for years...
I maybecould have gotten this Ruling.. as inthe 10th Circuit.. in
Colorado.. if I had had a Fair Hearing... by jeff Kline, acting as an
"elder' or "leader'... doing his permit signing in Idaho, while his motives
were "to cut costs" for the forest service... and 'secretly" working "on
behest of' the forest service.. i received NO FAIR HEARING.. official
misconduct... i am calling them on it..
this is an excellent case....
barry, plunker, montana
this violated my right to sue i.e. seek judicial review...
i prepare my Motion for Summary Judgement...
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation,
or custom,
willfully subjects any person in any State, Territory, Commonwealth,
Possession, or District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United
States, ... shall be fined under this title or imprisoned not more than one
year, or both; and if bodily injury results from the acts committed in
violation of this section or if such acts include the use, attempted use, or
threatened use of a dangerous weapon, explosives, or fire, shall be fined under
this title or imprisoned not more than ten years, or both; and if death
results from the acts committed in violation of this section or if such acts
include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an
attempt to commit aggravated sexual abuse, or an attempt to kill, shall be
fined under this title, or imprisoned for any term of years or for life, or
both, or may be sentenced to death.
Email a Link to This Case
http://laws.findlaw.com/10th/994210.html
U.S. 10th Circuit Court of Appeals
UNITED STATES v HARDMAN
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
-----------------------------------------------------------
¦UNITED STATES OF AMERICA, ¦ ¦
¦ ¦ ¦
¦ Plaintiff - ¦ ¦
¦ Appellee, ¦ ¦
¦ ¦ No. 99-4210 ¦
¦ v. ¦ ¦
¦ ¦ ¦
¦RAYMOND S. HARDMAN, ¦ ¦
¦ ¦ ¦
¦ Defendant - ¦ ¦
¦ Appellant, ¦ ¦
¦ ¦ ¦
¦---------------------------- ¦ ¦
¦------------- ¦ ¦
¦ ¦ ¦
¦UTE INDIAN TRIBE OF THE ¦ ¦
¦UINTAH AND OURAY ¦ ¦
¦RESERVATION, ¦ ¦
¦ ¦ ¦
¦ Amicus Curiae. ¦ ¦
-----------------------------------------------------------
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 99-CR-166-B)
Cindy Barton-Coombs, Roosevelt, Utah, appearing for Appellant.
Christopher B. Chaney, Assistant United States Attorney (Paul M.
Warner, United States
Attorney, with him on the brief), Office of the United States Attorney,
Salt Lake City,
Utah, appearing for Appellee.
Tod J. Smith, Whiteing & Smith, Boulder, Colorado, and Robert S.
Thompson, III, Office
of the General Counsel, Ute Indian Tribe, Fort Duchesne, Utah, filed an
amicus curiae
brief for the Ute Indian Tribe of the Uintah and Ouray Reservation.
Before TACHA, Chief Judge, McKAY, and HENRY, Circuit Judges.
TACHA, Circuit Judge.
Appellant Raymond Hardman appeals his conviction for violating the Migratory
Bird Treaty Act. Mr. Hardman alleges that the
Act violates the First Amendment; that the Act is enforced in a
discriminatory fashion in violation of his equal protection rights;
and that the tribal authority citing Mr. Hardman for violating the Act had
no jurisdiction to do so. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and AFFIRM.
I.
Mr. Hardman has been a practitioner of a Native American religion for many
years. He resides on fee land in Neola, Utah that
lies within the boundaries of the Uintah and Ouray Ute Reservation. Though
Mr. Hardman is not of Native American descent, his
ex-wife and two children are. Further, his ex-wife and children are enrolled
members of the S'Kallum Tribe, a federally
recognized tribe located in Washington State.
In 1993, when Mr. Hardman was still married to and living with his ex-wife,
his son's godfather died. Subsequently, Mr.
Hardman transported the body to Arizona so that appropriate religious
services could be performed. As a part of the religious
cleansing ritual, a Hopi tribal religious leader gave Mr. Hardman a bundle
of prayer feathers-which included golden eagle
feathers-to be kept in the truck that had transported the deceased body.
After returning to his home, Mr. Hardman contacted the
Utah Division of Wildlife Resources in order to obtain a permit to possess
the feathers. However, he was informed that he would
not be allowed to apply as he was not a member of a federally recognized tribe.
Years later, when Mr. Hardman and his wife were separated, Ute tribal
officers were informed by Mr. Hardman's estranged wife
that he possessed golden eagle feathers without a permit. On September 24,
1996, Ute tribal fish and game officer Cleveland
Murray went to Mr. Hardman's home and demanded the surrender of the eagle
feathers. In addition to being a tribal officer,
Officer Murray was a cross- commissioned federal law enforcement officer
acting under the authority of the United States Bureau
of Indian Affairs. Under protest, Mr. Hardman surrendered the eagle
feathers, which were hanging from the rear view mirror of
his truck.
On March 10, 1997, Mr. Hardman was issued a federal violation notice for
possessing golden eagle feathers without a permit in
violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703. On February 25,
1999, a bench trial was held before a magistrate
judge. Mr. Hardman was found guilty of violating the Migratory Bird Treaty
Act and sentenced to pay a small fine. Mr. Hardman
appealed to the district court where his conviction was affirmed. This
appeal followed.
II.
We review questions of constitutional law de novo. United States v. Wynne,
993 F.2d 760, 764 (10th Cir. 1993). The extent of
a federally authorized law enforcement officer's jurisdiction presents a
question of law which we review de novo. See United
States v. Hill, 197 F.3d 436, 445 (10th Cir. 1999).
III.
Before reaching the merits of Mr. Hardman's claims, we must first consider
whether he has standing to make them. The
government asserts that Mr. Hardman has no standing because he never
actually applied for a permit.1 Several courts have
addressed this question finding that, where an individual never actually
applied for a permit, he cannot thereafter complain that the
permitting process harmed his constitutional rights. See, e.g., United
States v. Lundquist, 932 F. Supp. 1237, 1242 n.5 (D. Or.
1996). In this case, however, while Mr. Hardman did not technically apply,
he did make a good faith effort to do so, and he was
rebuffed in exactly the same manner he would have been had he actually
applied. This is sufficient to establish standing.
IV.
The religion clause of the First Amendment to the Constitution provides that
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof." Mr.
Hardman challenges his conviction under both the
Establishment Clause and the Free Exercise Clause of the First Amendment. We
first consider Mr. Hardman's free exercise claim
and then turn to his Establishment Clause claim.
A.
The Migratory Bird Treaty Act makes it illegal for any person to "possess .
. . any migratory bird, any part, nest, or egg of any
such bird" except "as permitted by regulations made as hereinafter
provided." 16 U.S.C. § 703. The Act was passed for the
purpose of fulfilling our treaty obligations to Great Britain and other
nations and to protect migratory birds. See Andrus v. Allard,
444 U.S. 51, 52-53, 60 n.11 (1979). To that end, regulations were
promulgated as provided by the Act. See generally 50
C.F.R. §§ 10-24. The golden eagle is defined by those regulations as a
migratory bird protected by the Act. 50 C.F.R. § 10.13.
Further, the regulations set forth circumstances wherein a permit for the
lawful possession of a migratory bird or part thereof may
be obtained.
Specifically, 50 C.F.R. § 22.22 provides that "a permit authorizing the . .
. possession . . . of lawfully acquired bald eagles or
golden eagles, or their parts, nests, or eggs for Indian religious use" may
be issued if certain criteria are met. In order to obtain a
permit under this provision, an individual must be an enrolled member of a
federally recognized tribe and must show that the
eagles or parts are used for a tribally authorized and bona fide religious
ceremony. Thus, the statute and regulations at issue in this
case are laws of general applicability, promulgated for secular purposes,
but contain a religious accommodation in favor of
persons meeting two distinct qualifying criteria: (1) that the person be an
actual practitioner of a bona fide Native American
religion requiring the use of migratory bird feathers, and (2) that the
person be a member of a certain political classification, i.e., a
member of a federally recognized tribe.2 50 C.F.R. § 22.22 ("We will issue a
permit only to members of Indian entities
recognized and eligible to receive services from the United States Bureau of
Indian Affairs listed under 25 U.S.C. 479a-1
engaged in religious activities."). Mr. Hardman contends that both of the
qualifying criteria for religious accommodation contained
in 50 C.F.R. § 22.22 are subject to strict scrutiny, and further, that
neither can meet that test.
B.
The question arises whether we should apply the standard of review set forth
by Congress in the Religious Freedom and
Restoration Act ("RFRA") to Mr. Hardman's First Amendment claims even though
he has not raised RFRA, either in the district
court or on appeal. The essential requirement of RFRA is that: "Government
may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to the
person (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest." 42 U.S.C. § 2000bb-1(b).
RFRA was intended by Congress to overturn the Supreme Court's interpretation
of the Free Exercise Clause of the First
Amendment as set forth in Employment Division v. Smith, 494 U.S. 872 (1990).
However, the Court, in City of Boerne v.
Flores, 521 U.S. 507 (1997), held that Congress lacked such authority. To
hold otherwise would have allowed Congress to
"determine what constitutes a constitutional violation." Id. at 519.
After City of Boerne, it remained an open question whether RFRA created an
extra-constitutional statutory claim against the
federal government. Recently, we have answered that question in the
affirmative. Kikumura v. Hurley, 242 F.3d 950, 959 (10th
Cir. 2001) (holding that Congress had the authority to craft an extra-
constitutional protection for religious freedom applicable to
the federal government and that RFRA thus created a valid statutory
"standard for suits against the federal government"). Thus, a
RFRA claim for relief from federal burdening of religion is clearly distinct
from a First Amendment claim for identical relief. A
constitutional free exercise claim against the federal government remains
subject to Smith, while a statutory RFRA claim against
the federal government is exempt from Smith and governed wholly by the
dictates of RFRA itself.
It is a long-standing rule of appellate law that "new claims may not be
considered for the first time on appeal." Four Sons Bakery,
Inc. v. Dulman, 542 F.2d 829, 833 (10th Cir. 1976). While the appellate
court retains the discretion to consider new claims or
issues on appeal in unusual circumstances or where clear injustice would
otherwise result, we have rarely done so. Likewise, this
case presents no unusual circumstances that would justify our departure from
the general rule. Were we to apply RFRA to Mr.
Hardman's exclusively constitutional claim we would be significantly
altering the issues he seeks to have decided. RFRA is a
statutory claim and is not relevant in the context of Mr. Hardman's First
Amendment claims. We will not transform his
constitutional claim into a statutory one. Mr. Hardman has raised, briefed,
and argued constitutional claims only and we are
obligated to decide them as such. Were we to do otherwise, the very
constitutional questions the parties have come to us to have
answered would remain unresolved.
We have previously applied RFRA to a First Amendment claim even when it was
not raised by the parties. Werner v. McCotter,
49 F.3d 1476 (10th Cir. 1995). However, in Werner, decided prior to City of
Boerne, we were laboring under the false
understanding that RFRA "legislatively overturned a number of recent Supreme
Court [free exercise] decisions" and that it
created a new rule of constitutional law. Id. at 1479. Thus, we concluded
that because the language of RFRA made it applicable
to "all cases where free exercise of religion is substantially burdened," 42
U.S.C. § 2000bb(b)(1), its standard ought to control a
Free Exercise Clause claim even when not raised. Id. Because the Supreme
Court has made it clear that the Werner court's
assumptions about RFRA were faulty, its rationale is no longer convincing.
Therefore, we decline to exercise our discretion in the
same manner as it was exercised in Werner and will not consider the language
or standard of RFRA in connection with Mr.
Hardman's constitutional claims.
C.
As discussed above, in deciding any free exercise challenge we must begin
with the Supreme Court's decision in Employment
Division v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that "the
right to free exercise of religion does not relieve an
individual of the obligation to comply with a valid and neutral law of
general applicability." Id. at 879 (internal quotation marks
omitted). The Smith Court allowed for two exceptions to its general rule.
See infra, Section IV.C.1. Mr. Hardman, however, has
not argued that either of the Smith exceptions apply to the permitting
regulation. We therefore do not consider the Smith
exceptions.
Mr. Hardman argues only that the permitting regulation is not neutral and
cannot withstand strict scrutiny. The government, in turn,
asserts that the permitting regulation is neutral. Further, it argues that
even if the regulation is not neutral, the unique guardian-ward
relationship between the government and Native American tribes prevents
ordinary compliance with the dictates of the First
Amendment, and thus the permitting regulation need only pass the "rational
basis" test. Thus, in evaluating Mr. Hardman's free
exercise claim, we are presented with a two-fold question3: first, in the
generic sense, does a generally applicable law containing
an accommodation for a specific religious group, to the exclusion of others,
violate the Smith requirement of neutrality; and
second, if such a law is non-neutral, does the fact that the accommodation
is for a Native American religion trump the generic
rule, thereby requiring only the application of the rational basis test,
rather than strict scrutiny? We take up each question in turn,
answering the first in the affirmative, infra, Section IV.C.2, and the
second in the negative, infra, Section IV.C.3. In so doing, we
distinguish the underlying purpose and function of the Free Exercise Clause
from that of the Establishment Clause. Because we
conclude that the free exercise right is an affirmative individual religious
right to the unimpeded practice of religion and the
antiestablishment right is primarily a negative civil right to a government
free from religious entanglement, we conclude that a
challenge under the Free Exercise Clause cannot always be resolved in the
same manner as it might be under the Establishment
Clause. Finally, we apply the strict scrutiny test set forth in Smith and
conclude that the permitting provision is supported by a
compelling government interest and is narrowly tailored to further that
interest, infra, Section IV.C.4. First, however, it is
appropriate to discuss briefly the history of First Amendment neutrality and
the development of its application to free exercise
claims in Supreme Court case law.4
1.
In 1655, Roger Williams, the founder of Rhode Island, penned perhaps the
first concise expression of what we now know as the
religion clauses of the First Amendment. In a letter to the town of
Providence, R.I., he wrote:
It hath fallen out sometimes that both Papist and Protestants, Jews,
and Turks may be
embarked in one ship; upon which supposal I affirm that all the liberty
of conscience
that ever I pleaded for turns upon that two hinges-that none of the
Papists,
Protestants, Jews, or Turks be forced to come to the ship's prayers or
worship, nor
compelled from their own particular prayers or worship, if they
practice any.
1 Stokes, Church and State in the United States 197 (1950). Ever since this
dual formulation of protection for religion was
codified in the First Amendment, it has been alternatively praised for its
genius and damned for its vexing complications. In either
case, the kind of separation of church and state embodied in the religion
clauses of the First Amendment is central to the structure
of ordered liberty upon which this nation was founded.5 John Locke thought
it "above all things necessary to distinguish exactly
the business of civil government from that of religion and to settle the
just bounds that lie between the one and the other." John
Locke, A Letter Concerning Toleration, quoted in Sch. Dist. v. Schempp, 374
U.S. 203, 231 (1963) (Brennan, J., concurring).
However, finding the precise line and degree of "the just bounds" between
religion and civil government has been "elusive,"
Schempp, 374 U.S. at 231 (Brennan, J., concurring), and a "most difficult
and sensitive task, calling for the careful exercise of
both judicial and public judgment and restraint," id. at 305 (Goldberg, J.,
concurring).
One of the central difficulties encountered by courts lies in the
interrelationship between the two clauses. On the one hand, laws
"respecting an establishment of religion" are prohibited; while on the
other, laws "prohibiting the free exercise thereof" are equally
unconstitutional. Herein lies the central paradox of the religion clauses:
either clause, taken to its extreme, would tend to
eviscerate the other. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 82 (1985)
(O'Connor, J., concurring) ("It is obvious that either
of the two Religion Clauses, `if expanded to a logical extreme, would tend
to clash with the other.'" (quoting Walz v. Tax
Comm'n, 397 U.S. 664, 668-69 (1970))). Thus, early understandings of the
Free Exercise Clause required so many government
accommodations to religion that they "produced in the aggregate what may
fairly be described as a de facto establishment of
religion." Mark DeWolfe Howe, The Garden and the Wilderness: Religion and
Government in American Constitutional History
11 (1965).
The Supreme Court was confronted with this difficulty in Reynolds v. United
States, 98 U.S. 145 (1878). There, the petitioner
appealed his conviction for polygamy on the grounds that any prohibition
against polygamy violated his free exercise right to
practice the Mormon religion. Id. at 161-62. Quoting Jefferson's preamble to
the Virginia Bill for Religious Freedom, the Court
held that the Free Exercise Clause did not prohibit laws constraining
"`overt acts against peace and good order.'" Id. at 163. The
Court went on to declare: "[A]s a law of the organization of society . . .
it is provided that plural marriages shall not be allowed. . .
. To permit [a person to excuse practices contrary to law because of
religious belief] would be to make the professed doctrines
of religious belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself. Government
could exist only in name under such circumstances." Id. at 166-67.
Therefore, the Court recognized that strict application of free
exercise principles would establish, by default, religious law above civil
law. This general principle was again articulated by the
Court in Cantwell v. Connecticut, 310 U.S. 296 (1940). There, the Court held
that the First Amendment
embraces two concepts,-freedom to believe and freedom to act. The first
is absolute
but, in the nature of things, the second cannot be. Conduct remains
subject to
regulation for the protection of society. The freedom to act must have
appropriate
definition to preserve the enforcement of that protection. . . . It is
. . . clear that
a state may by general and non-discriminatory legislation . . .
safeguard the peace,
good order and comfort of the community, without unconstitutionally
invading the
liberties protected by the [First Amendment through the] Fourteenth
Amendment.
Id. at 303-04 (footnote omitted). Thus, the scope of free exercise of
religion is limited by the general enforcement of valid, neutral
laws.6
On the other hand, early antiestablishmentarians seeking to enforce strict
antiestablishment rules ended up clashing with the free
exercise protection. Jefferson, in his draft of the Virginia Constitution,
opposed clergymen serving in the legislature.7 Virginia
refused to allow the incorporation of Catholic churches for the purposes of
receiving charitable gifts, again on antiestablishment
grounds. Gallego v. Atty. Gen., 30 Va. 450 (1832) (Tucker, P., concurring in
part and dissenting in part) ("No man at all
acquainted with the course of legislation in Virginia, can doubt, for a
moment, that decided hostility of the legislative power to
religious incorporations. Its jealousy of the possible interference of
religious establishments in matters of government, if they were
permitted to accumulate large possessions . . . is doubtless at the bottom
of this feeling.").8 Thus, strict application of
establishment principles can result in the infringement of individual free
exercise.
The Supreme Court realized that such an extreme form of
antiestablishmentarianism could not be reconciled with the Free
Exercise Clause. For example, in Walz v. Tax Comm'n., 397 U.S. 664 (1970),
the Supreme Court held that the Establishment
Clause did not prohibit the City of New York from exempting from taxation
"property used exclusively for religious, educational
or charitable purposes." Id. at 666. The Court held that the Establishment
Clause does not prohibit neutral government
accommodations to religion that constitute "neither sponsorship nor
hostility." Id. at 672; see also Everson, 330 U.S. at 18
(holding that legislation providing public money to "help parents get their
children, regardless of their religion, safely and
expeditiously to and from accredited schools" does not violate the
Establishment Clause even if the program assists parochial
schools). Therefore, the scope of the Establishment Clause is limited by the
general application of neutral accommodations to
religion.9
As a result of this pattern of case law development in both the
establishment and free exercise contexts, neutrality became the
touchstone for courts sorting out the various church/state relationships.
See, e.g., Agostini v. Felton, 521 U.S. 203, 231 (1997)
(holding that the First Amendment is not violated where "aid is allocated on
the basis of neutral, secular criteria that neither favor
nor disfavor religion, and is made available to both religious and secular
beneficiaries on a nondiscriminatory basis"); Rosenberger
v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995) ("A
central lesson of our decisions is that a significant factor
in upholding governmental programs in the face of Establishment Clause
attack is their neutrality towards religion."); Id. at 846
(O'Connor, J., concurring) ("Neutrality, in both form and effect, is one
hallmark of the Establishment Clause."); Bd. of Educ. of
Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 667, 696 (1994) ("`A proper
respect for both the Free Exercise and the
Establishment Clauses compels the State to pursue a course of `neutrality'
toward religion.'" (quoting Comm. for Pub. Educ. &
Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973))). Therefore, the
general principle has emerged that, where the
government remains neutral, accommodations to religion are not, of
necessity, an impermissible establishment; and
non-accommodation is not, of necessity, an impermissible infringement on the
free exercise. Neutrality is thus the Court's answer
to the paradoxical relationship between the two religion clauses,10 acting
as the restraining principle holding each clause in check
and maintaining the appropriate equilibrium between the two.11
In light of this history, the Smith majority apparently viewed their rule
focusing on neutrality as nothing but a concise restatement
of long-standing First Amendment principles. While it is clear that
neutrality has long underlain all First Amendment religion
jurisprudence,12 the precise contours of the requirements of neutrality are
"not self-revealing," Church of the Lukumi Babalu Aye,
Inc., 508 U.S. at 561 (Souter, J., concurring), and have been the subject of
considerable judicial ink. The Smith concurrers and
dissenters, contrary to the majority view, did not think the rule of Smith
merged so seamlessly with established law. See, e.g.,
Smith, 494 U.S. at 891 (O'Connor, J., concurring) ("In my view, today's
holding dramatically departs from well-settled First
Amendment jurisprudence . . . and is incompatible with our Nation's
fundamental commitment to individual religious liberty."); see
also Church of the Lukumi Babalu Aye, Inc. 508 U.S. at 571 (Souter, J.,
concurring) ("[W]hatever Smith's virtues, they do not
include a comfortable fit with settled law."). Of particular concern to the
Smith concurrers and dissenters were two lines of cases
represented by the Court's two opinions in Wisconsin v. Yoder, 406 U.S. 205
(1972) and Sherbert v. Verner, 374 U.S. 398
(1963).
In Yoder, the Supreme Court held that a Wisconsin compulsory public school
attendance law was not neutral because it placed
undue burdens on the practice of the Amish religion and on the parenting
rights of Amish parents. 406 U.S. at 234. In mandating
an accommodation to the Amish religion freeing its adherents from the
compulsory attendance laws, the Yoder Court noted that
the result reflected "nothing more than the governmental obligation of
neutrality in the face of religious differences." Id. at 234 n.22
(internal quotation marks omitted). Thus, the Yoder rule (as opposed to the
Smith rule) would require, for example, a secular
law, applicable to all, that prohibited the consumption of alcohol, to
provide religious accommodation to Catholics for the use of
sacramental wine in order to be neutral. Church of the Lukumi Babalu Aye,
Inc., 508 U.S. at 561 (Souter, J., concurring).
In Sherbert, the Court had already applied strict scrutiny to a neutral law
challenged under the Free Exercise Clause. There, the
statute challenged "provided that a person was not eligible for unemployment
compensation benefits if, `without good cause,' he
had quit work or refused available work. The `good cause' standard created a
mechanism for individualized exemptions." Bowen
v. Roy, 476 U.S. 693, 708 (1986) (discussing Sherbert). The Court held that
when faced with this kind of statutory scheme,
strict scrutiny applied when the government used the `good cause' standard
to deny a person unemployment benefits because his
religion prevented him from working on Saturday. Sherbert, 374 U.S. at
403-04. The decisions in Sherbert and its progeny thus
"stand for the proposition that where the State has in place a system of
individual exemptions, it may not refuse to extend that
system to cases of `religious hardship' without a compelling reason." Smith,
494 U.S. at 884.
A series of cases in the late 1980s, however, indicated a clear shift in
Free Exercise Clause jurisprudence. In these cases, the
Supreme Court refused to apply strict scrutiny to free exercise challenges
to prison regulations, internal government activities, and
military regulations. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-50
(1987) (prison regulations); Bowen, 476 U.S. at
707-08 (internal government activities); Goldman v. Weinberger, 475 U.S.
503, 507-08 (1986) (military regulations). Instead,
the Court used a rational basis test to evaluate these government actions,
despite their clear impact on the free exercise of
religion. The trend culminated in the rule announced in Smith. There, the
Court was asked by practitioners of a Native American
religion to follow Yoder and Sherbert and apply strict scrutiny to a statute
restricting the use of peyote that had no religious
accommodation allowing for its sacramental use. Not only did the Court
refuse to create the accommodation, it ruled, as noted,
that "the right of free exercise [of religion] does not relieve an
individual of the obligation to comply with a valid and neutral law of
general applicability," Smith, 494 U.S. at 879, and that such a law need not
be justified by a compelling interest even where
religious practice is substantially burdened. Id. at 888- 89.13
In order to reconcile the apparent conflict, the Smith majority allowed for
two exceptions to the general Smith rule. The first
exception, the so-called `hybrid-rights exception,' preserved the Court's
holding in Yoder, and the second, the `individualized
exemption exception,' preserved the Court's holding in Sherbert. See id. at
882-85. Thus, the Smith Court distinguished the two
earlier lines of cases applying strict scrutiny to neutral and generally
applicable laws. Whatever the continued viability of Yoder
and Sherbert might be in certain limited circumstances, we can only conclude
that the Supreme Court's holding in Smith rejects
the basic concepts of neutrality embodied in those cases. As such, we now
turn to examine the precise requirements of neutrality
in the free exercise context pursuant to Smith.
2.
The clearest Supreme Court exposition of the kind of government neutrality
required by Smith is found in Church of the Lukumi
Babalu Aye, Inc.. There, a city ordinance prohibiting the ritual sacrifice
of animals was challenged under the Free Exercise Clause
by a religious sect desiring to sacrifice animals in the bona fide pursuit
of their religious beliefs. Church of the Lukumi Babalu Aye,
Inc., 508 U.S. at 527-28. After reiterating the Smith rule that "a law that
is neutral and of general applicability need not be
justified by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice,"
id. at 531, the Court outlined the general contours of the neutrality
required by Smith, id. at 532-40. "At a minimum, the
protections of the Free Exercise Clause pertain if the law at issue
discriminates against some or all religious beliefs or regulates or
prohibits conduct because it is undertaken for religious reasons." Id. at
532. The Court made it clear, however, that reviewing a
law for obvious religious discrimination is only the first step of the
inquiry. "Facial neutrality is not determinative." Id. at 534. A
law is also rendered non-neutral pursuant to Smith if it contains a "subtle
departure[ ] from neutrality" or a "covert suppression of
particular religious beliefs." Id. (internal quotation marks omitted). Thus,
"[t]he Free Exercise Clause protects against
governmental hostility which is masked, as well as overt. `The Court must
survey meticulously the circumstances of governmental
categories to eliminate, as it were, religious gerrymanders.'" Id. (quoting
Walz, 397 U.S. at 696 (Harlan, J., concurring)).
Applying this standard, the Court had no difficulty concluding that the
ordinances in question were not neutral as they clearly
targeted religious practice. Id. at 542.
This court has also explored the requirements of governmental neutrality in
the wake of Smith. See Swanson v. Guthrie Indep.
Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998). In Swanson, home-
schooling parents sued their local school district claiming
that the district's policy against part-time school attendance violated
their free exercise rights. Id. at 696-97. The Swansons
claimed that their religion required them to home school their daughter in
certain subjects, and that the part-time attendance ban
burdened the exercise of their religion by, in effect, restricting their
ability to do so. Id. We found that the part-time attendance
policy was "neutral and of general application" and thus not subject to
strict scrutiny. Id. at 698. The Swansons had argued that
because the part-time attendance ban had accommodations for certain
students, but not for home- schooled children, it was
non-neutral. Id. Because the issue was not presented to the district court,
we did not ultimately decide the question. Id. We did,
however, note that while the policy provided exceptions to fifth-year
students and special-education students, such
accommodations did not render the policy non-neutral because they were based
on a secular purpose rather than a religious one
(accommodations were made for certain students who counted as full- time
students for state-aid purposes). Id. at 698 n.3, 701.
Thus, we held that the Swansons were not being discriminated against on the
basis of their religion.
Church of the Lukumi Babalu Aye, Inc. contemplated violations of neutrality
in the form of government action that formally
discriminated against a particular religion. The instant case requires us to
address the opposite circumstance: where government
neutrality is brought into question as a result of an exemption granted only
to the practitioners of a specific religion. In such a
circumstance, government hostility to religion is not as clear-cut. However,
we are not called upon to judge the hostility level of a
particular regulation, but rather its neutrality. As such, we cannot see any
basic difference pertaining to neutrality between a law
that formally restricts a certain activity only when practiced by members of
a specific religion for religious reasons and one that
formally permits a certain activity only when practiced by members of a
specific religion for religious reasons. Indeed, both create
the sort of "religious gerrymander" that the religion clause of the First
Amendment is designed to guard against.
Moreover, regardless of our opinion of Justice O'Connor's view of the
Court's heavy reliance on neutrality as a First Amendment
barometer, we are instructed by her assessment of such a reliance: "A
government that confers a benefit on an explicitly religious
basis is not neutral toward religion." Wallace, 472 U.S. at 82-83 (O'Connor,
J., concurring). While it is clear that Smith does not
require such extreme neutrality that any religious accommodation at all is
non- neutral, we think Smith does embody the lesser
requirement that should a statute or regulation contain an accommodation for
religion, it must be cast broadly enough so as to
encompass all religious claims for exemption. See, e.g., Nyquist, 413 U.S.
at 794 (holding that "the narrowness of the benefitted
class" is an important factor in determining neutrality). Further, the
Supreme Court has specifically held that when religious
accommodations are made to a generally applicable statute, "it is clear that
neutrality as among religions must be honored." Bd. of
Educ. of Kiryas Joel Vill. Sch. Dist., 512 U.S. at 707; see also KDM v.
Reedsport Sch. Dist., 196 F.3d 1046, 1053 (9th Cir.
1999) (Kleinfeld, J., dissenting) (agreeing with the majority that when the
government "treats people of one or all religions better
or worse than others, the constitutional question [of neutrality] is
traditionally formulated so that the answer has to be `No!'").
Finally, contrary to Swanson, the instant case involves accommodations that
are made expressly for religious purposes.
Therefore, when the government creates a generally applicable law or policy
for secular purposes, yet grants a religiously
motivated accommodation exclusively to a specific religious group, the law
or policy is non-neutral. As such, we hold that the
accommodation made by the Migratory Bird Treaty Act and its attendant
regulations for practitioners of Native American
religions violates the standard of neutrality announced in Smith. This
holding, however, is not fully dispositive of the neutrality
analysis in this case. Mr. Hardman is not claiming to be a practitioner of a
non-Native American religion using eagle feathers for
religious purposes. In fact, it is undisputed that Mr. Hardman is a devoted
practitioner of a Native American religion. Therefore, it
is not Mr. Hardman's religion, per se, that prevents him from complying with
the permitting regulations. Rather, it is Mr.
Hardman's political classification (as a non-member of a federally
recognized Indian tribe) as it impacts the practice of his religion
that renders him in violation of the statute. In this respect, to our
knowledge, this case is unique in Free Exercise Clause
jurisprudence.
In effect, the statute and regulations at issue mandate that only members of
a particular political subdivision may participate fully in
Native American religions requiring the use of eagle feathers. It is central
to the concepts of ordered liberty embodied in the First
Amendment that the "[f]reedom of conscience and freedom to adhere to such
religious organization . . . as the individual may
choose cannot be restricted by law." Cantwell, 310 U.S. at 303. Where formal
neutrality forbids religious accommodations that
are contingent on adhering to a specific religion, as we have held here, we
have no difficulty finding that such neutrality extends to
forbid religious accommodations contingent on membership in a particular
political subdivision. Accordingly, we hold that both
qualifying requirements of the permitting process-the religious requirement
and the political requirement-violate Smith neutrality.
3.
We now turn to the question raised by the government: whether the fact that
this case arises in the context of the guardian-ward
relationship between the government and Native American tribes relieves the
government of its burden to comply with the
neutrality requirements of the free exercise clause. The government relies
almost entirely on a line of cases arising in the Fifth and
First Circuits, notably Peyote Way Church of God, Inc. v. Thornburgh, 922
F.2d 1210 (1st Cir. 1991), and Rupert v. Dir.,
United States Fish & Wildlife Serv., 957 F.2d 32 (1st Cir. 1992). These
cases applied only a `rational relationship' test to
Establishment Clause claims arising in the Native American context. See,
e.g., Rupert, 957 F2d at 35 ("[W]e . . . see no reason
not to use the `rational relationship' analysis here.").
In Thornburgh, members of the Peyote Way Church challenged federal and state
statutes that prohibited the use of peyote, but
exempted members of the Native American Church. 922 F.2d at 1212. The court
found that the exemption regulation, which
stated that "[t]he listing of peyote as a controlled substance . . . does
not apply to the nondrug use of peyote in bona fide religious
ceremonies of the Native American Church," id. at 1213-14, did not violate
the Establishment Clause.14 Id. at 1216-17. The
court held:
The unique guardian-ward relationship between the federal government
and Native
American tribes precludes the degree of separation of church and state
ordinarily
required by the First Amendment. The federal government cannot at once
fulfill its
constitutional role as protector of tribal Native Americans and apply
conventional
separatist understandings of the establishment clause to that same
relationship.
. . . Thus, we hold that the federal [Native American Church] exemption
represents the
government's protection of the culture of quasi-sovereign Native
American tribes and as
such, does not represent an establishment of religion in contravention
of the First
Amendment.15
Id. at 1217.
In Rupert, the First Circuit reviewed the very regulation at issue in the
instant case: 50 C.F.R. § 22.22. Rupert, 957 F.2d at 33.
The court reviewed the regulation for possible violation of the
Establishment Clause, but again, not for violation of the Free
Exercise Clause. Id. at 34-36. Relying on the precedent established in
Thornburgh, the Rupert court acknowledged that in most
circumstances, "an exemption that frees one religious group from the
prohibition but leaves another bound by it offends the
principle of neutrality," but held that "where the government has treated
Native Americans differently from others in a manner that
arguably creates a religious classification" the First Amendment is not
violated because of "Congress' historical obligation to
respect Native American sovereignty and to protect Native American culture."
Id. at 34-35.
It is not necessary, today, for us to pass on the appropriateness of the
Thornburgh and Rupert approach. That is because we
hold that, whatever the merits of Thornburgh and Rupert, they do not extend
outside the confines of cases decided pursuant to
the Establishment Clause. Thus, for the reasons discussed below, we decline
the government's invitation to extend the holding in
Rupert to cases arising under the Free Exercise Clause in this circuit.
As discussed above, supra, section VI.B.1, the history of the
interrelationship between the Establishment Clause and the Free
Exercise Clause is a complex one. One thing, however, has remained clear.
While the two clauses overlap to a degree, "the Free
Exercise Clause protects values distinct from those protected by the Equal
Protection Clause." Smith, 494 U.S. at 901
(O'Connor, J., concurring) (citing Hobbie v. Unemployment Appeals Comm'n,
480 U.S. 136, 141-42 (1987)).
The unique values protected by the Establishment Clause can be seen clearly
in James Madison's classic Memorial and
Remonstrance Against Religious Assessments where he urged the Virginia
General Assembly to reject a proposed "Bill
establishing a provision for Teachers of the Christian Religion." He
remonstrated:
What influence, in fact have ecclesiastical establishments had on civil
society? In
some instances they have been seen to erect a spiritual tyranny on the
ruins of civil
authority; in many instances they have been seen upholding the thrones
of political
tyranny; in no instance have they been seen the guardians of the
liberties of the
people. Rulers who wished to subvert the publick liberty, may have
found an established
clergy, convenient auxiliaries. A just government, instituted to secure
and perpetuate
it, needs them not.
James Madison, Memorial and Remonstrance Against Religious Assessments, 8,
reprinted in The Complete Bill of Rights: The
Drafts, Debates, Sources, and Origins 49 (Neil Cogan ed., 1997). Thus,
Madison, the architect of the First Amendment,
understood the antiestablishment principle to protect against "political
tyranny" and the "subversion of civil authority." McGowan
v. Maryland, 366 U.S. 420, 430 (1961); see also Everson, 330 U.S. at 15
("The structure of our government has, for the
preservation of civil liberty, rescued the temporal institutions from
religious interference." (internal quotation marks omitted)). The
primary purpose of antiestablishment is to protect "society from the threat
of political division along religious lines." Hall v.
Bradshaw, 630 F.2d 1018, 1021 (4th Cir. 1980).16
This general principle of antiestablishment is seen clearly in the history
of the Establishment Clause itself. Specifically, the
Establishment Clause was meant as a protection against the corruption of the
federal government by religion. The Clause did
more than prohibit congressional establishment of religion, it "prohibited
the national legislature from interfering with, or trying to
dis- establish, churches established by state and local governments." Amar,
supra at 32. Justice Story wrote that "the whole
power over the subject of religion is left exclusively to the state
governments." Joseph Story, Commentaries on the Constitution of
the United States § 1873, quoted in Amar, supra at 33; see also Barron v.
Baltimore, 32 U.S. 243, 247-48 (1833).17 Indeed, in
1789, six states had established state churches and four prohibited
non-Christians from serving in state government. Amar, supra
at 32-33. Thus, originally, "state governments [were] . . . the rights
holders under the clause." Id. at 33. Therefore, the
Establishment Clause was meant to protect the corporate right of groups of
citizens, i.e., states, to have a federal government
free of religious entanglements.
In Everson, the Supreme Court incorporated the Establishment Clause into the
Due Process Clause of the Fourteenth
Amendment, thus making it applicable against state governments. As such, the
Establishment Clause has been recognized as
protecting an individual right, and even as a "coguarantor, with the Free
Exercise Clause, of religious liberty." Schempp, 374 U.S.
at 256 (Brennan, J., concurring).18 Despite incorporation, however, the
auspices under which the Establishment Clause became a
part of our Constitution serve as more than mere historical curiosities;
they serve to instruct us that the Establishment Clause, in its
fundamental character, does not protect religious rights, but rather,
protects the civil right to have a government free from the
vexing entanglements of religious establishment, whether that civil right is
held corporately (pre-incorporation) or individually
(post- incorporation).
Courts have consistently recognized this fact. Indeed, while free exercise
is clearly an individual religious right, Lyng v. Northwest
Indian Cemetary Protective Ass'n, 485 U.S. 439, 451 (1988) ("[T]he Free
Exercise Clause is written in terms of what the
government cannot do to the individual." (internal quotation marks
omitted)); Tarsney v. O'Keefe, 225 F.3d 929, 936 (8th Cir.
2000) (holding that the Free Exercise Clause is "a constitutional guarantee
on non interference by the government with religious
practice"), "the purposes underlying the Establishment Clause go much
further than" the protection of individual religious liberty.
Engle, 370 U.S. at 431. Specifically, the Establishment Clause protects the
civil right of citizens to have a government free from
religious entanglement. "[T]he Establishment Clause creates in each citizen
a `personal Constitutional right' to a government that
does not establish religion. . . . [F]reedom from establishment is a right
that inheres in every citizen." Americans United for
Separation of Church & State, Inc. v. United States Dep't of Health, Educ. &
Welfare, 619 F.2d 252, 265 (3rd Cir. 1980),
rev'd on other grounds, Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464
(1982) (reversing on the grounds that the citizen taxpayers lacked standing
because they could not show any injury due to the fact
that the property transfer complained of was not an exercise of the
authority conferred on Congress by the Taxing and Spending
Clause of the Constitution); see also Tarsney, 225 F.3d at 936 ("When the
government spends public money in violation of the
Establishment Clause, a taxpayer suffers a direct injury because the
government is improperly promoting religion.").
Because the two religion clauses protect different values, and because they
require different things from the government, we
cannot analyze them in the same way. If "the purpose of the `establishment'
clause was only to insure protection for the `free
exercise' of religion" the clauses would be repetitive and dual analysis
would not be required. McGowan, 366 U.S. at 430. As it
is, our analysis of 50 C.F.R. § 22.22 pursuant to the Free Exercise Clause
in this case mandates a different result from the one
reached by the First Circuit analyzing the same regulation pursuant to the
Establishment Clause in Rupert. Rupert was concerned
with the inability of the government to maintain strict non-entanglement
with religion when it was executing its trust duties toward
Native American tribes. This aspect of Rupert is simply not present here.
The Free Exercise Clause is not concerned with
non-entanglement, but rather with protecting individual religious freedom.
Thus, the Free Exercise Clause cannot be trumped by
the guardian-ward relationship between the government and Native American
tribes. While the relationship may temper the
values protected by the Establishment Clause, it cannot negate the values
protected by the Free Exercise Clause. Accordingly,
we decline to follow the rule of Rupert in the context of a free exercise
challenge.
4.
"A law burdening religious practice that is not neutral or not of general
application must undergo the most rigorous of scrutiny."
Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 546. Strict scrutiny
requires that a law be "justified by a compelling
governmental interest and must be narrowly tailored to advance that
interest." Id. at 531-32.
We are unaware of any circuit court case applying First Amendment strict
scrutiny to the permitting process outlined in 50 C.F.R.
§ 22.22.19 The government asserts a compelling interest in protecting
migratory birds in compliance with treaty agreements. The
purpose of the MBTA was, in part, to "aid in the restoration of such birds
in those parts of the United States adapted thereto
where the same have become scarce or extinct." 16 U.S.C. § 701. Originally,
the Act implemented an agreement between Great
Britain and the United States. Now, the Act implements similar treaties
between the Untied States and other nations. See Andrus
v. Allard, 444 U.S. 51, n.11 (1979) (citing Coggins & Patti, The
Resurrection and Expansion of the Migratory Bird Treaty Act,
50 Colo. L. Rev. 165, 169-174 (1979)).
Eagles were brought within the Act by a 1972 Presidential agreement entered
into pursuant to the 1936 Convention with Mexico.
Agreement Supplementing the Convention of Feb. 7, 1936, Mar. 10, 1972, U.S.-
Mex., 23 U.S.T. 260. The 1936 Convention,
by its terms, explicitly contemplated that the Convention could be modified
by Presidential agreement between the two countries.
Convention Between the United States of America and Mexico for the
Protection of Migratory Birds and Game Mammals, Feb.
7, 1936, 50 Stat. 1311. "The 1936 Convention indicates congressional policy
with regard to migratory birds . . . . The power to
determine the specific terms required to effectuate congressional purpose is
lawfully delegated to the President when the terms
must be agreeable among several foreign nations." United States v. Mackie,
681 F.2d 1121, 1124 (9th Cir. 1982) (citing United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 329 (1936)). The
dissent would remand this case to district court for a
factual inquiry into whether some eagle species may be recovering. We are
extremely hesitant to inject court found facts into
treaty making procedures that are rightly within the purview of the
President and the Congress. The United States therefore has a
compelling interest in enforcing its treaty obligations as they are defined
by agreements lawfully entered into by the President of
the United States with foreign nations.20
The government further asserts that it has a compelling interest in
protecting the unique culture and religion of Native Americans.
The historical abuses Native American religion has suffered at the hands of
the United States government have been thoroughly
catalogued. See, e.g., Jack F. Trope, Protecting Native American Religious
Freedom: The Legal, Historical, and Constitutional
Basis for the Proposed Native American Free Exercise of Religion Act, 20
N.Y.U. Rev. L. & Soc. Change 373 (1993).
However, beginning in the 1930s, federal policy, recognizing the
government's unique trust relationship with Indian tribes, began
to value and actively protect Native American culture. Bear Lodge Multiple
Use Ass'n. v. Babbitt, 175 F.3d 814, 817 (10th Cir.
1999). It has long been an accepted tenet of federal Indian law that the
government's trust obligation to Indian tribes imposes an
obligation to protect Native American culture. See, e.g., Kickapoo Tribe v.
Rader, 822 F.2d 1493, 1500-01 (10th Cir. 1987)
("[P]art of the trust responsibility of the United States is" to protect the
interests of Indian foster children by "`placement of such
children in foster or adoptive homes which will reflect the unique values of
Indian culture.'" (quoting 25 U.S.C. § 1902)); Rupert
v. Director, United States Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir.
1992) (Congress has a "historical obligation to
respect Native American sovereignty and to protect Native American
culture."). Moreover, Congress has clearly enshrined this
trust duty in the American Indian Religious Freedom Act. 42 U.S.C. § 1996
(declaring a policy to "protect and preserve for
American Indians their inherent right of freedom to believe . . .
traditional religions . . . and the freedom to worship through
ceremonials and traditional rites"). Thus, the government has a compelling
interest in protecting the culture and religion of Native
Americans.
The permitting process set forth in 50 C.F.R. § 22.22 stands at the center
of a careful balance between the government's
compelling interest in fulfilling its treaty obligations pursuant to the
1936 Convention with Mexico and its compelling interest in
protecting Native American religion. Congress "considered the special
cultural and religious interests of Indians, balanced those
needs against the conservation purposes of the statute, and provided a
specific, narrow exception." Dion, 476 U.S. at 743.
Therefore, we find that the government has two compelling interests that are
vindicated by 50 C.F.R. § 22.22, each of which is
uniquely at cross-purposes with the other. A narrowly tailored rule
furthering both interests requires that they be set in careful
equipoise. "Any diminution of the exemption would adversely affect the
former interest, but any extension of it would adversely
affect the latter." Rupert, 957 F.2d at 35. We hold that a permitting
process which does not allow non- Native Americans such
as Mr. Hardman to qualify for an exception to the MBTA meets the First
Amendment compelling interest test.21
D.
In addition to making a free exercise claim, Mr. Hardman has challenged the
permitting process as a violation of the First
Amendment's Establishment Clause. Mr. Hardman asserts that the permitting
process creates a denominational preference for
Native American religion as practiced by members of federally recognized
tribes. It is true that, where a law permits one
denominational group to act in a certain way and prohibits another religious
group from the same conduct, a denominational
preference is present and strict scrutiny is applied. Larson v. Valente, 456
U.S. 228, 244-46 (1982). It is also true, however,
that the "unique guardian-ward relationship between the federal government
and Native American tribes precludes the degree of
separation of church and state ordinarily required by the First Amendment."
Peyote Way Church of God, Inc. v. Thornburgh,
922 F.2d 1210, 1217 (5th Cir. 1991). Further, the government "cannot at once
fulfill its constitutional role as protector of tribal
Native Americans and apply conventional separatist understandings of the
establishment clause to that same relationship." Id. As
a result, the Supreme Court has "repeatedly held that the peculiar
semisovereign and constitutionally recognized status of Indians
justifies special treatment on their behalf when rationally related to the
Government's `unique obligation toward the Indians.'"
Wash. v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658, 673 n.20 (1979) (quoting Morton v.
Mancari, 417 U.S. 535, 555 (1974)).
Following Washington, as discussed above, supra section IV-B-3, one circuit
court reviewing an Establishment Clause challenge
to 50 C.F.R. § 22.22 has applied a rational relationship analysis to the
permitting process. Rupert v. Director, United States Fish
& Wildlife Serv., 957 F.2d 32, 35 (1st Cir. 1992) ("[W]e . . . see no reason
not to use the `rational relationship' analysis here,
where the government has treated Native Americans differently from others in
a manner that arguably creates a religious
classification."). But cf. Peyote Way Church of God, Inc. v. Thornburgh, 922
F.2d 1210, 1220-21 (5th Cir. 1991) (Clark, C.J.,
dissenting) (stating that the "government's paternalistic interest in
American Indians" is not sufficient to trump the Constitution's ban
on laws "respecting an establishment of religion"); Olsen v. Drug
Enforcement Admin., 878 F.2d 1458, 1468-69 (D.C. Cir.
1989) (Buckley, J., dissenting) (strict scrutiny should be applied where the
government has treated Native Americans differently
on religious grounds). Because we have already determined that the
permitting process meets the compelling interest test, we
need not decide today which level of scrutiny to apply to governmental
action that treats Native Americans differently on religious
grounds. Under either test, 50 C.F.R. § 22.22 passes constitutional muster.
V.
Mr. Hardman has additionally claimed that, as applied to him, the Migratory
Bird Treaty Act and its permitting process violate his
equal protection rights because he has been selectively and discriminatoraly
prosecuted. "[T]here is a presumption that
prosecution for violation of the criminal law is in good faith." United
States v. Blitstein, 626 F.2d 774, 782 (10th Cir. 1980). "To
demonstrate unconstitutionally selective prosecution a defendant must show
(1) he was singled out for prosecution while others
similarly situated were not generally prosecuted; and (2) the prosecution
was invidiously based on racial, religious, or other
impermissible considerations." United States v. Bohrer, 807 F.2d 159, 161
(10th Cir. 1986). Furthermore, where there has been
no factual showing that the statute has not been enforced evenhandedly, the
statute is not unconstitutional as applied to the
defendant. United States v. Guerrero, 667 F.2d 862, 869 (10th Cir. 1981).
"When addressing an issue other than the accused's guilt or innocence, the
clearly erroneous standard of review applies to
appellate review of trial court fact findings." United States v. Johnson,
941 F.2d 1102, 1108 (10th Cir. 1991). Mr. Hardman's
claim that the Act has been enforced uneven-handedly is not supported by the
record. The magistrate judge found, as a factual
matter, that Mr. Hardman had failed to present evidence sufficient to
establish a pattern of non-enforcement by the tribal officers.
This finding is not clearly erroneous. Thus, as applied to Mr. Hardman, the
Act does not violate his equal protection rights.
VI.
Once again, we will review the factual findings of the trial court for clear
error only. Johnson, 941 F.2d at 1108. The trial court
found, as a factual matter, that the citing officer was a Federal Bureau of
Indian Affairs officer who was acting within the exterior
perimeter of the reservation. These findings are not clearly erroneous. As a
matter of law, the Bureau of Indian Affairs has
jurisdiction over all of the lands within the exterior boundaries of the
reservation. See 18 U.S.C. § 1151; 25 U.S.C. § 2. Thus,
there exists no defect in the manner in which Mr. Hardman was cited for
violating the Migratory Bird Treaty Act.
VII.
The Migratory Bird Treaty Act and C.F.R. § 22.22 do not violate either the
First Amendment's protection of the free exercise of
religion or its prohibition against the establishment of religion. Further,
as applied to Mr. Hardman, neither the Act nor the
permitting process have violated Mr. Hardman's right to equal protection of
the law under the Fourteenth Amendment. Finally,
the tribal officer citing Mr. Hardman for violating the Migratory Bird
Treaty Act was within his jurisdiction to do so. AFFIRMED.
No. 99-4210, United States v. Hardman
HENRY, Circuit Judge concurring:
Cognizant of other cases that our court is conflicting in this area, I am
uncertain as to whether RFRA applies when not raised. But
I do agree that the dual interests of the government, i.e., protecting the
golden eagle and protecting the culture and religion of
Native American religion, are compelling governmental interests. I also
agree that the permitting system is narrowly tailored and is
the least restrictive means of advancing these interests (in the meaning of
our case law in this area) in that the system enables the
government to protect the family of birds containing one of our national
symbols, to fulfill its unique obligations to federally
recognized Indian tribes, and to fulfill its international treaty
obligations as well.
Further, although my decision does not cause me to have to examine current
data that may suggest a recovery of some eagle
species, I have concerns with the dissent's suggestion to remand for factual
determinations that in effect have already been made
and signed into treaties by the President and ratified by the Senate. We
must recognize Congress' "`plenary power . . . based on
a history of treaties . . . to legislate on behalf of federally recognized
Indian tribes.'" Rupert v. Director, United States Fish &
Wildlife Serv., 957 F.2d 32, 34 (1st Cir. 1992) (quoting Morton v. Mancari,
417 U.S. 535, 551-52 (1974)). In addition, my
reservations stem from a "long history of judicial deference to the
exclusive power of the Executive over conduct of relations with
other sovereigns," as well as semi- sovereign powers. First Nat'l City Bank
v. Banco Nacionale de Cuba, 406 U.S. 759, 765
(1972) (addressing the act of state doctrine). Finally "[r]esolution of the
instant issue turns on the unique legal status of Indian
tribes under federal law and upon the plenary power of Congress, based on a
history of treaties and the assumption of a
`guardian-ward' status, to legislate on behalf of federally recognized
Indian tribes. The plenary power of Congress to deal with
the special problems of Indians is drawn both explicitly and implicitly from
the Constitution itself." Morton v. Mancari, 417 U.S.
535, 549 (1974),
I believe the suggested factual determinations have been made within treaty
making procedures in accordance with international
law and by the regulatory bodies empowered to make determinations regarding
the recovery of te eagle family. See 50 C.F.R.
§§ 10.13 (list of migratory birds); 17.11 (list of endangered and threatened
wildlife, updated regularly (665 times) since its
enactment). I do not believe it is the court's place to take further
evidence affecting treaties. Furthermore, neither party has
requested additional factfinding on these issues. While it may be within the
judicial power to address these facts, I do not believe
it is advisable, nor within the realm of particular judicial expertise.
Thus, with the exception of the majority's treatment of the RFRA issue, of
which I am unsure, I fully join the opinion.
No. 99-4210, United States v. Hardman
McKAY, Circuit Judge dissenting:
Background
Appellant is a bona fide practitioner of a Native American religion. His
ex-wife and children are enrolled members of the federally
recognized S'Kallum Tribe, but Appellant is not himself of Native American
descent. In 1993, a Hopi religious leader conveyed
to Appellant a prayer bundle containing eagle feathers as part of his
performance in a funeral ritual. The Migratory Bird Treaty
Act makes it illegal for any person to possess the parts of migratory birds,
except "as permitted by regulations . . . ." 16 U.S.C. §
703. The regulation that authorizes a permit requires an applicant to (1) be
an actual practitioner of a Native American religion
and (2) be a member of a federally recognized tribe. 50 C.F.R. § 22.22.
When Appellant inquired about obtaining a permit to possess the feathers,
which had continuing religious significance, he was
instructed not to apply because he was not a member of a federally
recognized tribe. After effectively being denied the right to
apply for a permit, he was convicted under the Migratory Bird Treaty Act for
possessing eagle parts without a permit. The
question on appeal is whether the federal government impermissibly deprived
him of free exercise of religion by subjecting his
religious practice to a permit process that excludes him while allowing
applications from other adherents to the same religion.
Free Exercise
In Smith, 494 U.S. 872, the Supreme Court held that a distinct
constitutional analysis guides our review of neutral and generally
applicable laws. It is clear that a criminal statute that is neutral and
generally applicable does not violate the free exercise clause.
Because this scheme makes an exemption for the religious practice of
recognized tribal members, it is not, in my view, generally
applicable. The regulation at issue distinguishes between members of the
same religion and effectively favors one person's
religious belief and practice over another's.
Although there is generally room to argue the meaning of neutral and
generally applicable, see Church of Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 561 (1993) (Souter, J., concurring),
any such argument must square with the rule that
when a law contains "a system of individualized exemptions, it may not
refuse to extend that system to cases of religious hardship
without compelling reason." Smith, 494 U.S. at 884. Unlike the statute
reviewed in Smith, the regulation at issue here creates a
system of individualized exemptions for religious practice. It is well
established that a law cannot favor one religious practitioner
over another without compelling reason. See Lukumi Babalu, 508 U.S. at
532-33; Fowler v. Rhode Island, 345 U.S. 67, 69-70
(1953); see also Larson v. Valente, 456 U.S. 228, 244 (1982). Thus, because
it creates individualized exemptions for religious
practice, I agree with the majority that the regulation at issue is subject
to the compelling interest test under Smith. The district
court decided this case under the principle of Smith neutrality. Because we
are reversing that conclusion, I would remand for full
consideration of the required compelling interest analysis.
Regardless of whether the statute and exemption are deemed neutral and
generally applicable, in enacting the Religious Freedom
and Restoration Act ("RFRA") Congress required that courts apply the
compelling interest test to any infringement on free
exercise of religion. In Flores, 521 U.S. at 516, the Supreme Court held
that Congress lacked power under the Fourteenth
Amendment to impose the compelling interest test on state action. However,
we recently joined other circuits in holding that "the
separation of powers concerns expressed in Flores do not render RFRA
unconstitutional as applied to the federal government."
Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001).1 RFRA does not apply
against the states, but it applies to the federal
government, and by its own language it applies "in all cases where free
exercise of religion is substantially burdened." 42 U.S.C. §
2000bb(b)(1).
The majority characterizes RFRA as a statutory cause of action separate from
a constitutional claim. I cannot. Because RFRA
applies to the federal government in all free exercise cases, I understand
RFRA to be a required statutory supplement to those
constitutional claims. Therefore, our disposition of this case must account
for RFRA. While courts have diverged on whether
RFRA applies when a party fails to raise it, we have considered RFRA
regardless. See Werner v. McCotter, 49 F.3d at 1476,
1478-79 (10th Cir. 1995). That reasoning is still valid.
While three circuits have held that 50 C.F.R. § 22.22 survives strict
scrutiny, I am not persuaded. See Gibson v. Babbitt, 223
F.3d 1256 (11th Cir. 2000); United States v. Hugs, 109 F.3d 1375 (9th Cir.
1997); Rupert v. U.S. Fish & Wildlife Serv., 957
F.2d 32 (1st Cir. 1992). Even in the absence of a record, I am persuaded
that, as a matter of law, the federal government has a
compelling interest generally in accommodating the religious practices of
Native Americans. However, it is not at all obvious to
me that this interest leads to the conclusion that the government may draw
distinctions between adherents to the same religion and
practices. Clearly, the government has a special duty to the Native American
tribes, but I fail to find support in the cases cited or
in my own research for the majority's assertion that this duty justifies
violations of the First Amendment. Conversely, in cases
where the Supreme Court has considered religious liberty of Native
Americans, the Court's reasoning and implication suggests
that our holdings are to be dictated by the First Amendment. See Lyng v.
Northwest Indian Cemetery Protective Assoc., 485
U.S. 439, 451 (1987); Smith, 494 U.S. at 874, 883.
The absence of any record leaves me unable to even preliminarily judge
whether the government has a compelling interest in
protecting eagles. Because research suggests that neither bald nor golden
eagles are endangered or even threatened, I cannot find
the interest asserted in this case compelling as a matter of law. See
Proposed Rule to Reclassify Remove the Bald Eagle in the
Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed.
Reg. 36454 (July 6, 1999); see also Final Rule
to Reclassify the Bald Eagle from Endangered to Threatened in All of the
Lower 48 States, 60 Fed. Reg. 36000 (July 12, 1995).
In fact, the bald eagle is no longer listed as an endangered or even
threatened species in the lower forty-eight states. See 50
C.F.R. § 17.ll (fact-based listing as distinguished from 50 C.F.R. § 10.13,
which merely identifies eagles as a species to be
managed).
Under the treaty, the implementing legislation, and the regulatory scheme,
whether the government's interest is strong enough to
deny free exercise of religion appears contingent on the actual population
status of the birds, not on the bald assertion of a
governmental interest. The treaty authorizes distribution of eagle parts "as
permitted by [domestic] regulations." 16 U.S.C. § 703.
It is certainly true that domestic regulations must comply with the
Constitution.
At this stage, it is impossible without a fully developed record to do the
kind of close scrutiny required when determining that the
federal interest is so compelling that it overbalances the individual
interest in free exercise. Ultimately, the consideration of the
necessary balancing necessarily requires the application of the narrowly
tailored or least restrictive means test, even if the federal
interest is considered generally compelling. Again, those determinative
issues were not addressed by the district court. There is no
way this court can apply that standard without the full development of a
factual record.
For these reasons, I would reverse and remand for a full development of
facts which may bear on whether the government's
interest in protecting eagles is compelling; if so, is it so compelling as
to require discrimination among adherents to the same
religion; and finally, whether the statute and regulatory scheme at issue
satisfy either the narrowly tailored or the least restrictive
means tests for achieving whatever interests may ultimately prove to be so
compelling as to justify the denial of free exercise of
religion.
FOOTNOTES
--------------
[1]
Mr. Hardman did actually apply for a permit after Officer Murray seized the
feathers. Such a post hoc application is not sufficient
to establish standing.
--------------
[2]
See Morton v. Mancari, 417 U.S. 535, 553-54 (1974) (holding that treating
members of federally recognized tribes differently
from non-members was not subject to strict scrutiny because the distinction
was a political classification rather than a racial one).
--------------
[3]
Because this case presents a unique set of facts, formulation of the
threshold questions concerning neutrality is both difficult and
critical to the analysis. Although we do not choose to superimpose an equal
protection analysis on a free exercise claim, infra,
note 15, the granting of an exemption to one group and not another resembles
equal protection concerns regarding suspect
classifications. Mr. Hardman essentially argues the classifications in this
case burden the free exercise of his religion while
impermissibly establishing the religious practices of another group.
In order to decide the free exercise claim, we must, however, focus on the
burdening of Mr. Hardman's religious practice. In
determining whether a generally applicable law is neutral, we therefore ask
whether the "object of [the] law is to infringe upon or
restrict practices because of their religious motivation." Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
533 (1993) (conducting a Smith neutrality analysis). Simply stated, if the
object, or purpose, of the law is secular, it is neutral. Id.
Without the exemption, the Act is clearly neutral: its purpose-protection of
the eagles-is secular and the Act applies to everyone.
It is, therefore, the exemption for Native Americans practicing certain
religions that places the neutrality of the act in question.
Therefore, the object or purpose of the exemption, rather than that of the
Act, becomes the necessary focus of our analysis.
However, the facts of this case complicate that analysis because we must
decide whether to focus on the exemption itself or the
denial of the exemption.
In analyzing the object of 50 C.F.R. § 22.22, we could ask whether Mr.
Hardman has been denied an exemption for secular or
religious reasons. Conversely, we could look to the exemption itself and ask
whether it has a secular or religious purpose-either
on its face or in its application. Which path we choose influences our
analysis largely because of the underlying presence of both
religious and political classifications. Viewing neutrality through the
former lens, focusing on the denial, or absence, of an
exemption rather than the exemption itself, may, for example, favor a
finding of secular purpose: Mr. Hardman was arguably
denied an exemption not because of his religion but because he is not a
member of a federally recognized tribe.
On the other hand, viewing the issue through the latter lens focuses our
inquiry properly on the language and history of the law in
question. It is through this lens that we choose to analyze free exercise
neutrality in the context of an exemption. To do otherwise
would subject one law to varying neutrality determinations depending on the
peculiarities of any particular plaintiff's position. We
choose instead a mode of analysis that will result in one neutrality
determination applicable to everyone.
--------------
[4]
At first blush, Mr. Hardman's allegations of religious discrimination seem
to fit more snugly with his Establishment Clause claim
than his Free Exercise Clause claim. This is because a legal challenge
"founded on disparate treatment of `religious' claims invokes
. . . the central purpose of the Establishment Clause." Gillette v. United
States, 401 U.S. 437, 449 (1971). It is true that where
the "gist of the constitutional complaint is . . . impermissibl[e]
discriminat[ion] among types of religious belief," id., the
Establishment Clause is typically the focus. Even so, we are not free to
ignore the "free exercise overtones," id., of such a claim,
particularly when the claimant has expressly framed his complaint in free
exercise language. Even assuming that Mr. Hardman's
Establishment Clause claim will fail, the regulation does not thereby
receive a free pass on free exercise grounds. Indeed, the
Supreme Court has "recognized that the Free Exercise Clause protects values
distinct from those protected by the Equal
Protection Clause." Smith, 494 U.S. at 901 (O'Connor, J., concurring)
(citing Hobbie v. Unemployment Appeals Comm'n, 480
U.S. 136, 141-42 (1987)). Mr. Hardman has experienced a clear and undisputed
restraint on the free exercise of his religion,
and we remain bound to decide his free exercise challenge according to the
Constitution and the various precedents of the
Supreme Court and of this circuit.
--------------
[5]
While the word separation appears nowhere in the text of the First
Amendment, its importance as a guiding principle of First
Amendment jurisprudence cannot be denied. For example, in the now famous
letter to the Baptist convocation at Danbury,
Connecticut, Jefferson wrote: "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." T. Jefferson, 16 Writings of
Thomas Jefferson 281-82 (1903). One-and-a-half
centuries earlier, Williams, the political grandfather of the First
Amendment, argued that religious persons have always been called
to be "separate from the world" and that "when they have opened a gap in the
hedge or wall of separation between the garden of
the church and the wilderness of the world, God hath ever broke down the
wall itself, removed the candlestick, and made His
garden a wilderness." Roger Williams, Mr. Cotton's Letter Lately Printed,
Examined and Answered (quoted in Perry Miller,
Roger Williams: His Contribution to the American Tradition 98 (1953)). This
notion of separation has permeated modern
Supreme Court jurisprudence. See e.g., Everson v. Bd. of Educ., 330 U.S. 1,
16 (1947) ("In the words of Jefferson, the clause
against establishment of religion by law was intended to erect `a wall of
separation between church and State.'" (quoting Reynolds
v. United States, 98 U.S. 145, 164 (1878))); Id. at 31-32 (Rutledge, J.,
dissenting) ("The Amendment's purpose . . . was to
create a complete and permanent separation of the spheres of religious
activity and civil authority by comprehensively forbidding
every form of public aid or support for religion."). We are mindful that
"rule[s] of law should not be drawn from a figure of
speech," McCollum v. Bd. of Educ., 333 U.S. 203, 247 (1948) (Reed, J.,
dissenting), and that the Constitution does not "require
complete separation of church and state," Lynch v. Donnelly, 465 U.S. 668,
673 (1984); however, it is clear that separation, in
all its guises, remains a guiding principle of the First Amendment. See,
e.g., Catholic Bishop of Chicago v. N.L.R.B., 559 F.2d
1112, 1119 (7th Cir. 1977) ("[I]rrespective of the height, breadth,
straightness, or fissures in the Religion Clauses separation
wall, the Court's numerous precedents in this area are firmly rooted and now
provide substantial guidance.").
--------------
[6]
This principle, of course, and "the distinction between belief and behavior,
are susceptible of perverse application." Schempp,
374 U.S. at 249 n.14 (Brennan, J., concurring). For example, Oliver
Cromwell's mandate to Irish Catholics: "As to freedom of
conscience, I meddle with no man's conscience; but if you mean by that,
liberty to celebrate the Mass, I would have you
understand that in no place where the power of the Parliament of England
prevails shall that be permitted." Quoted in id.
--------------
[7]
6 Papers of Thomas Jefferson 297 (J. Boyd ed. 1952):
Of this General Assembly the Treasurer, Attorney General, Register,
Ministers of the Gospel, officers of the regular armies of this
state or of the United states, persons receiving salaries or emoluments from
any power foreign to our Confederacy, those who
are not resident in the counties for which they are chosen Delegates or
districts for which they are chosen Senators, persons who
shall have committed treason, felony or such other crime as would subject
them to infamous punishment or who shall have been
convicted by due course of law of bribery or corruption in endeavouring to
procure an election to the said assembly, shall be
incapable of being members.
--------------
[8]
Despite the fact that Gallego was overruled some fifty-seven years later in
Trustees of the Gen. Assembly of the Presbyterian
Church in the United States v. Guthrie, 10 S.E. 318, 325-26 (Va. 1889), it
remains an example of extreme
antiestablishmentarianism.
--------------
[9]
As noted above, supra, note 6, this limiting principle is subject to abuse
where legislatures, intending to sponsor religion, create
facially neutral laws or accommodations to religion.
--------------
[10]
While it has been argued by no less an authority than Justice O'Connor that
the "solution to the conflict between the Religion
Clauses [does not lie] in `neutrality,'" Wallace, 472 U.S. at 83 (O'Connor,
J., concurring), the Court has clearly taken a different
path; and we are obliged to follow.
--------------
[11]
Furthermore, it is worth noting that while neutrality solves the primary
conflict between the two religion clauses by holding them in
tension-it further solves the problem of religious discrimination or
religious establishment based on extreme readings of either
clause. See supra, notes 6, 8. Indeed, the legislative purpose of laws may
be neither the advancement nor the inhibition of
religion. "State power is no more to be used so as to handicap religions,
than it is to favor them." Everson, 330 U.S. at 18; see
also Walz, 397 U.S. at 669, 672. The Supreme Court has struck down facially
neutral laws on both free exercise and
establishment grounds. See, e.g., Church of the Lukumi Babalu Aye, Inc., 508
U.S. at 527, 534-36 (holding that a facially
neutral city ordinance prohibiting the killing of "an animal in a public or
private ritual or ceremony not for the primary purpose of
food consumption" violated the Free Exercise Clause because the clause
"extends beyond facial discrimination" and the "exclusive
legislative concern" of the ordinance was a specific religion's practices);
Edwards v. Aguillard, 482 U.S. 578, 586-87, 593
(1987) (holding that the Establishment Clause was violated by a law with a
purported secular purpose to treat religious and
non-religious origin theories equally because the government's "articulation
of a secular purpose" is required to be "sincere and not
a sham" and the purpose of the law was "to restructure the science
curriculum to conform with a particular religious viewpoint").
One scholar has argued that the roots of this aspect of First Amendment
neutrality can be found in the federalism concern that
Congress could not "`under the pretext of executing its power, pass laws for
the accomplishment of objects not entrusted to the
government.'" Akhil Reed Amar, The Bill of Rights: Creation and
Reconstruction 37-38 (1998) (quoting McCulloch v. Maryland,
17 U.S. (4 Wheat) 316, 423 (1819)). This strict federalism understanding of
"enumerated powers in terms of their natural
`objects' or `purposes'" resembles pre-1776 colonists' arguments that
"Parliament could enact bills to regulate trade for the
overall benefit of the empire but could not use this power pretextually to
raise revenues." Id. at 38 n.*.
--------------
[12]
First Amendment neutrality, as discussed in Supreme Court opinions, is
rarely explicitly differentiated into the categories Free
Exercise Clause neutrality and Establishment Clause neutrality. In fact, the
Court allows the principles of neutrality to flow from
Establishment Clause cases to Free Exercise Clause cases intact. See, e.g.,
Church of the Lukumi Babalu Aye, Inc., 508 U.S. at
532-33 (applying neutrality principles from Establishment Clause cases in
the Free Exercise Clause context). Indeed, "[b]ecause
of the overlap" between the two clauses, decisions under one clause "bear
considerable relevance" to decisions under the other.
Schempp, 374 U.S. at 249 (Brennan, J., concurring). As a result, we do not
differentiate between Free Exercise Clause
neutrality and Establishment Clause neutrality herein, but rather refer to
First Amendment neutrality as a requirement that adheres
to both of the religion clauses equally. Even so, it is clear that the
dictates of neutrality may require different government action
depending on which clause is implicated.
--------------
[13]
One explanation of the Smith holding as it relates to earlier Supreme Court
precedent relies on a distinction between `substantive
neutrality' and `formal neutrality.' See generally Douglas Laycock, Formal,
Substantive, and Disaggregated Neutrality Toward
Religion, 39 DePaul L. Rev. 993 (1993). Smith neutrality, termed `formal
neutrality,' distinguishes between "laws whose `object'
is to prohibit religious exercise and those that prohibit religious exercise
as an `incidental effect.'" Church of the Lukumi Babalu
Aye, Inc., 508 U.S. at 562 (Souter, J., concurring). "Smith placed only the
former within the reaches of the Free Exercise
Clause; the latter, laws that satisfy formal neutrality, Smith would subject
to no free-exercise scrutiny at all, even when they
prohibit religious exercise in application." Id. (citing Smith, 494 U.S. at
878).
--------------
[14]
The court also found that the Free Exercise Clause was not violated by the
statutes criminalizing the use of peyote. Thornburgh,
922 F.2d at 1213. The court did not, however, review the exemption
regulation for possible violation of the Free Exercise
Clause, but only for violation of the Establishment Clause.
--------------
[15]
In addition, the Thornburgh court (and subsequently the Rupert court) looked
to Justice Harlan's statement that "[n]eutrality in its
application requires an equal protection mode of analysis," Walz, 397 U.S.
at 696 (Harlan, J., concurring), to find additional
support for its reliance on the equal protection cases of Morton v. Mancari,
417 U.S. 535 (1974), and Santa Clara Pueblo v.
Martinez, 436 U.S. 49 (1978). Those cases held that laws treating Native
American's differently were not based on an
impermissible racial classification, but rather on a political
classification, Morton, 417 U.S. at 554, and that determining whether
Native Americans were similarly situated to others required cognizance of
the fact that "tribes remain quasi-sovereign nations,"
Santa Clara Pueblo, 436 U.S. at 71. It is unnecessary for us to decide today
the proper use of equal protection jurisprudence in
First Amendment cases because the decisions in Thornburgh and Rupert rested
primarily on a particular understanding of the
Establishment Clause, and only secondarily on the equal protection cases.
However, without deciding the issue, we express
reservations about the wisdom and usefulness of importing equal protection
concepts into First Amendment cases. This approach
has never been endorsed by a majority of the Supreme Court or by this
circuit. Framing the ultimate question in terms of "equality
of treatment" distances a court from its obligation to discern whether the
constitutionally mandated neutrality has been maintained.
See Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 2001 WL 69499, *17 (5th
Cir. Jan. 26, 2001) (plurality opinion of
Wiener, J., dissenting) ("[S]ubtly substitut[ing] the Equal Protection
Clause for the Establishment Clause, impermissibly frame[s]
the ultimate issue in terms of `equality of treatment' rather that the
neutrality that the Constitution demands.").
--------------
[16]
For many of the Founders, Madison included, antiestablishment also served as
a necessary protection of the institutions of
religion. This is well described by Roger Williams in his The Bloudy Tenent,
of Persecution, for cause of Conscience: "The
unknowing zeale of Constantine and other Emperours, did more to hurt Christ
Jesus his Crowne and Kingdome, then the raging
fury of the most bloody Neroes. In the persecutions of the later, Christians
were sweet and fragrant, like spice pounded and
beaten in morters: But those good Emperours, persecuting some erroneous
persons, Arrius, &c. and advancing the professours
of some Truths of Christ (for there was no small number of Truths lost in
those times) and maintaining their Religion by the
materiall Sword, I say by this meanes Christianity was ecclipsed, and the
Professors of it fell asleep." (quoted in Engle v. Vitale,
370 U.S. 421, 434 n.20 (1962)). Thus, to be complete, it should be noted
that antiestablishment principles served to prevent the
union of church and state from "destroy[ing] government and . . .
degrad[ing] religion." Engle, 370 U.S. at 431.
--------------
[17]
In holding that any constitutional provision "obviously intended for the
exclusive purpose of restraining the exercise of power by
[the federal government]" was not enforceable against the various states,
Chief Justice Marshall wrote:
The question thus presented is, we think, of great importance, but not of
much difficulty. The constitution was ordained and
established by the people of the United States for themselves, for their own
government, and not for the government of the
individual states. Each state established a constitution for itself, and in
that constitution, provided such limitations and restrictions
on the powers of its particular government, as its judgment dictated. The
people of the United States framed such a government
for the United States as they supposed best adapted to their situation and
best calculated to promote their interests. The powers
they conferred on this government were to be exercised by itself; and the
limitations on power, if expressed in general terms, are
naturally, and, we think, necessarily, applicable to the government created
by the instrument. They are limitations of power
granted in the instrument itself; not of distinct governments, framed by
different persons and for different purposes.
Barron, 32 U.S. at 247.
--------------
[18]
Scholars then and now have argued that this direction is problematic at
best. See, e.g, Corwin, A Constitution of Powers in a
Secular State 113-116 (arguing that the Establishment Clause does not
protect any individual freedom); Amar, supra at 33
("[T]he nature of the states' establishment-clause right against federal
disestablishment makes it quite awkward to mechanically
`incorporate' the clause against the states via the Fourteenth Amendment.").
--------------
[19]
However, at least two circuit courts have heard challenges to the permitting
process in 50 C.F.R. § 22.22 and have applied the
RFRA compelling interest test. In Gibson v. Babbitt, 223 F.3d 1256 (11th
Cir. 2000), and United States v. Hugs, 109 F.3d
1375 (9th Cir. 1997), the courts held that 50 C.F.R. § 22.22 did not violate
RFRA. Gibson 223 F.3d at 1258 (holding that the
permitting system was the least restrictive means of advancing the
government's compelling interest in "fulfilling its treaty
obligations with federally recognized Indian tribes"); Hugs, 109 F.3d at
1378 ("We are also satisfied the statute and permit
system provide the least restrictive means of conserving eagles while
permitting access to eagles and eagle parts for [Native
American] religious purposes."). Because we do not apply a RFRA analysis in
this case, however, neither Gibson nor Hugs are
apposite.
--------------
[20]
Furthermore, though not implicated by the instant case, eagles are also
protected by the Bald and Golden Eagle Protection Act.
16 U.S.C. § 668a. In setting out the need for the Bald and Golden Eagle
Protection Act, the House Committee explained that
"[c]ertain feathers of the golden eagle are important in religious
ceremonies of some Indian tribes and a large number of the birds
are killed to obtain these feathers . . . . As a result of these activities
. . . there is grave danger that the golden eagle will
completely disappear." H.R. Rep. No. 87-1450 at 2 (1962). Thus, action has
repeatedly been taken by Congress because of the
"need to preserve [eagle] species." United States v. Dion, 476 U.S. 734, 745
(1986).
--------------
[21]
We do not reach more specific questions which may arise later under 50
C.F.R. § 22.22 such as whether a bona fide Native
American who is not a member of a federally recognized tribe may
constitutionally be excluded from the exemption.
--------------
[1]
In Kikumura, we based our decision on the federal government's remedial
power and did not independently evaluate whether
RFRA remains constitutional when applied to a federal criminal law that is
neutral and generally applicable. Because the
establishment clause checks the enforcement of the free exercise clause, it
is conceivable that at some point too much religious
protection becomes itself unconstitutional. If that constitutional ceiling
on religious exercise is inherent in the Court's reasoning in
Smith, then RFRA suffers an additional constitutional defect. I depart from
portions of the majority's establishment clause
analysis, but disposition of this case does not necessitate that I elaborate
my argument.
~~~~Restore the Earth! Restore the People! ~~~~
AMERIKKKA
Mediocre times produce the very worst that the world has to offer:
Reagan, Bin
Laden, Bush, Hussein, Sharon, and Blair. None but the feeble minded
could draw
inspiration from such a ghastly lineup of "leaders".
Turn Off TV and Turn On Quantum
Mind
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