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PERMISSIBLE ACCOMMODATION OF SACRED SITES The Establishment Clause of the First Amendment does not bar either an Executive

Order that requires the accommodation of ceremonial use of sites on federal land that are sacred to federally recognized Indian tribes or a National ar! "ervice regulation# designed to im$lement that Order# that $rohibits the issuance of commercial climbing licenses at one such site during a $eriod of religious significance% September 18, 1996 MEMORANDUM OPINION FOR THE SECRETARY OF THE INTERIOR We have been asked to provide our views on the obligations imposed by the Establishment Clause on the treatment of sa red sites under E!e utive "rder #o$ 1%&&'$ (hat "rder states that ea h federal agen y with responsibility for the management of federal lands )shall, to the e!tent pra ti able, permitted by law, and not learly in onsistent with essential agen y fun tions, *1+ a ommodate a ess to and eremonial use of ,ndian sa red sites by ,ndian religious pra titioners and *-+ avoid adversely affe ting the physi al integrity of su h sa red sites$) E!e $ "rder #o$ 1%&&', 61 .ed$ /eg$ -6,''1 *1996+$ (he e!e utive order defines ),ndian tribe) to mean )an ,ndian or 0laska #ative tribe, band, nation, pueblo, village, or ommunity that the Se retary of the ,nterior a knowledges to e!ist as an ,ndian tribe pursuant to 1ubli 2aw #o$ 1&%3454, 1&8 Stat$ 4'91, and 6,ndian6 refers to a member of su h an ,ndian tribe$) ,d$ 7uestions on erning the permissible means for implementing this e!e utive order have arisen in the wake of a re ent federal distri t ourt de ision en8oining a #ational 1ark Servi e regulation that prohibited the issuan e of ommer ial limbing li enses at 9evils (ower, a sa red site in Wyoming, during the religiously signifi ant month of :une$ *1+ We believe that this ase was wrongly de ided and that the federal government has broad latitude to a ommodate the use of sa red sites by federally re ogni;ed ,ndian tribes$ *-+ ,n the first se tion of this memorandum, we lay out the general prin iples that govern the a ommodation of religion under the Establishment Clause$ ,n the se ond se tion, we address the prin iples appli able to the a ommodation of sa red sites$ We then apply those prin iples to the 9evils (ower ase$ I. BACKGROUND

(he Supreme Court has held that the Establishment Clause generally prohibits the government from singling out religious organi;ations for spe ial, preferred treatment, whether in the form of a dire t benefit or an e!emption from a government re<uirement$ See =oard of Edu $ of >iryas :oel v$ ?rumet, 51- @$S$ 68', 696 *1994+ *plurality opinion+ *the government must )pursue a ourse of 6neutrality6 toward religion, favoring neither one religion over others nor religious adherents olle tively over nonadherents) * itation omitted++A Epperson v$ 0rkansas, %9% @$S$ 9', 1&4 *1968+ *same+$ *%+ 0t the same time, however, the Court )6has long re ogni;ed that the government may *and sometimes must+ a ommodate religious pra ti es and that it may do so without violating the Establishment Clause$6) Corporation of 1residing =ishop v$ 0mos, 48% @$S$ %-', %%4 *198'+ *<uoting Bobbie v$ @nemployment 0ppeals Comm6n, 48& @$S$ 1%6, 144345 *198'++$ *4+ (he a ommodation do trine permits the government to single out religion for spe ial treatment under ertain ir umstan es, usually when a generally appli able regulation interferes with the e!er ise of religion$ 0lthough the a ommodation do trine permits the government, at times, to single out religion for spe ial treatment, in general it does not e! use the government from omplying with traditional Establishment Clause prin iples in other respe ts$ (hose traditional prin iples are embodied in the familiar 2emon test$ See 2emon v$ >urt;man, 4&% @$S$ 6&-, 61-31% *19'1+$ *5+ @nder 2emon, the government must demonstrate that a law impli ating the Establishment Clause *1+ has a )se ular legislative purpose,) *-+ has )a prin ipal or primary effe t) that neither advan es nor inhibits religion, and *%+ does not foster e! essive governmental entanglement with religion$ /e ent Supreme Court ases make lear that purported a ommodations must have a )se ular legislative purpose) 33 namely, to lift a spe ial, government3imposed burden on religious e!er ise$ Su h a permissible purpose generally will, in addition, prevent the a ommodation from having the impermissible effe t of advan ing religion over non3religion$ ,f an a ommodation passes these two tests, it will satisfy 2emon so long as it does not foster e! essive government entanglement with religion$ ,mportantly for present purposes, however, even where a ommodations satisfy the 2emon test, the Establishment Clause still might be impli ated where the a ommodation is for the benefit of some denominations and not othersA indeed, government a tions that dis riminate among religions typi ally are sub8e t to stri t s rutiny$ See 2arson v$ Calente, 456 @$S$ --8, -46 *198-+$ 0$ 1ermissible Se ular 1urpose

@nder 2emon, laws and government pra ti es that benefit religion must serve a )se ular legislative purpose$) 4&% @$S$ at 61-$ (here is no re<uirement, however, that a law6s purpose be unrelated to religion$ 0s the Supreme Court has said, )that would amount to a re<uirement that the government show a allous indifferen e to religious groups, and the Establishment Clause has never been so interpreted$)0mos, 48% @$S$ at %%5 *internal <uotations and itation omitted+$ =ut the government may not a t )with the intent of promoting a parti ular point of view in religious matters$) ,d$ 0lthough this is hardly a bright line, one appli ation is ertainD )@nder the 2emon analysis, it is a permissible legislative purpose to alleviate signifi ant governmental interferen e with the ability of religious organi;ations to define and arry out their religious missions$) 0mos, 48% @$S$ at %%5 *emphasis added+A see also 2yng v$ #orthwest ,ndian Cemetery 1rote tive 0ss6n, 485 @$S$ 4%9, 454 *1988+ *)(he ?overnment6s rights to the use of its own land $ $ $ need not and should not dis ourage it from a ommodating religious pra ti es$)+ *6+ 0s a general rule, however, the government may only lift a burden that ithas imposed$ (he Supreme Court has repeatedly emphasi;ed that the a ommodation do trine allows the prote tion of religious organi;ations from governmental interferen e$ *'+ ,n addition, the government may only lift a burden that spe ially affe ts the e!er ise of religion, or religious a tivity$ ,n the absen e of a spe ial burden on religious e!er ise, the government simply has nothing to a ommodate$ *8+ ,t is also lear that the Court at times will e!amine the purpose behind regulations that do not on their fa e refer to religion$ *9+ (hus, drafting a regulation without referen e to religion will not ne essarily shield it from Establishment Clause s rutiny$ Bowever, the Supreme Court has suggested in di ta that in the onte!t of government ;oning and land3use regulations, fa ially neutral a ommodations of religion 33 that is, regulations that are designed to a ommodate religion but that do so without e!pli itly referring to religion 33 are likely to withstand Establishment Clause review, even when designed to a ommodate only one religious group$ *1&+ .urthermore, the Court will not strike down a law *fa ially neutral or otherwise+ on purpose grounds unless the law has no apparent se ular purpose or its *impermissible+ religious purpose predominates$ *11+ =$ #onpreferential Effe t @nder 2emon, the primary effe t of a government regulation annot be to advan e religion over non3religion$ (he Supreme Court has held, however, that when the government lifts a burden it has imposed on the e!er ise of religion, it does not impermissibly advan e religion$ See 0mos, 48% @$S$ at %%63%'$ 0lthough the government may thereby enable religion to better advan e itself, su h an effe t does not automati ally offend the Establishment Clause$ ,d$ at %%'$ .urthermore, the Court

has stated, where )government a ts with the proper purpose of lifting a regulation that burdens the e!er ise of religion, Ethere isF no reason to re<uire that the e!emption omes pa kaged with benefits to se ular entities$) ,d$ at %%8$ C$ #o E! essive Entanglement .inally, 2emon prohibits the government from a ommodating religion in a manner that reates a risk of e! essive governmental entanglement with religion$ @nder 2emon, impermissible entanglement may o ur when the government intervenes in religious affairs or when religious organi;ations assume governmental fun tions$ *1-+ 9$ #ondis rimination Even where religious a ommodations satisfy all three 2emon prongs, they also must satisfy the ) learest ommand of the Establishment Clause)D )that one religious denomination annot be offi ially preferred over another$) 2arson, 456 @$S$ at -44$ ,t follows that a dis riminatory a ommodation typi ally will be sub8e t to stri t s rutiny$ ,d$ at -46$ *1%+ II. ACCOMMODATION AT SACRED SITES 0lthough the a ommodation do trine generally permits the government to single out religion for spe ial treatment in order to alleviate government3imposed burdens on religious e!er ise, it nonetheless ordinarily prohibits the government from ena ting regulations that prefer one religion over others, that foster e! essive entanglement with religion, or that lift privately imposed burdens$ Bowever, these general prohibitions do not apply to regulations that a ommodate the religious pra ti es of federally re ogni;ed ,ndian tribes$ 0$ ,n Gorton v$ Gan ari, 41' @$S$ 5%5 *19'4+, the Supreme Court held that preferen es for federally re ogni;ed ,ndian tribes are sub8e t to less e!a ting s rutiny under the E<ual 1rote tion Clause than ra ial or ethni preferen es be ause of the histori al guardian3ward relationship between those tribes and the federal government$ ,n upholding an employment preferen e for ,ndians ontained in the ,ndian /eorgani;ation 0 t, -5 @$S$C$ HH 4613494, the Court held that )EaFs long as the spe ial treatment an be tied rationally to the fulfillment of Congress6 uni<ue obligation toward the ,ndians, su h legislative 8udgments will not be disturbed$) 41' @$S$ at 555$ 0pplying this standard, the Court found that the preferen e before it was )reasonable and rationally designed to further ,ndian self3government) and did not

onstitute ra ial dis rimination$ ,d$ ,n fa t, a ording to the Court, the preferen e was not even ra ial in nature be ause it favored a <uasi3sovereign or politi al group onsisting of federally re ogni;ed ,ndian tribes, rather than a dis rete ra ial group onsisting of #ative 0meri ans$ ,d$ at 554, 55% n$-4$ (wo Courts of 0ppeals have e!tended the logi of Gorton to the Establishment Clause onte!t$ ,n /upert v$ 9ire tor, @$S$ .ish and Wildlife Serv$, 95' .$-d %- *1st Cir$ 199-+ *per uriam+, the .irst Cir uit upheld an e!emption for federally re ogni;ed ,ndian tribes from the federal riminal prohibition on the possession of eagle feathers$ .a ed with the <uestion of whether to apply the stri t s rutiny standard of 2arson or the rational basis test of Gorton, the ourt on luded that the prin iples arti ulated in Gorton govern )where the government has treated #ative 0meri ans differently from others in a manner that arguably reates a religious lassifi ation$) ,d$ at %5$ (he ourt reasoned that su h preferential treatment 33 as with the preferential treatment at issue in Gorton 33 )finds its sour e in Congress6 histori al obligation to respe t #ative 0meri an sovereignty and to prote t #ative 0meri an ulture$) ,d$ (he ourt also found that su h treatment is uni<uely supported Ein this onte!tF by the legislative history and ongressional findings underlying the 0meri an ,ndian /eligious .reedom 0 t E4- @$S$C$ H 1996F, whi h de lares a federal poli y of 6prote tEingF and preservEingF for 0meri an ,ndians their inherent right of freedom to believe, e!press and e!er ise theEirF traditional religions $ $ $, in luding but not limited to a ess to sites, use and possession of sa red ob8e ts, and the freedom to worship through eremonials and traditional rites$6 ,d$ at %5 *<uoting @nited States v$ /usk, '%8 .$ -d 49', 51% *1st Cir$ 1984+, ert$ denied, 4'& @$S$ 1&&4 *1985++$ Similarly, in 1eyote Way Chur h of ?od, ,n $ v$ (hornburgh, 9-- .$-d 1-1& *5th Cir$ 1991+, the .ifth Cir uit upheld statutory e!emptions for the #ative 0meri an Chur h from federal and state laws prohibiting peyote possession$ 0fter onstruing the e!emptions as politi al lassifi ations rather than as religious lassifi ations, the ourt statedD (he uni<ue guardian3ward relationship between the federal government and #ative 0meri an tribes pre ludes the degree of separation between hur h and state ordinarily re<uired by the .irst 0mendment$ (he federal government annot at on e fulfill its onstitutional role as prote tor of tribal #ative 0meri ans and apply onventional separatist understandings of the establishment lause to that same relationship$ ,d$ at 1-1'$

?iven the spe ial trust relationship between the federal government and federally re ogni;ed ,ndian tribes that Gorton, /upert, and 1eyote Way re ogni;e, there is a strong argument that neither 2emonnor 2arson should apply to a ommodations of tribal religious pra ti es or sa red sites, be ause su h a ommodations are not religious preferen es in the usual sense of that term$ /ather, they are politi al preferen es onferred by the federal government on a <uasi3sovereign in furtheran e of the federal government6s duty to promote tribal self3determination in all of its forms$ (he fa t that the a ommodated rituals might be viewed as religious in some sense *be ause of the way in whi h the distin tion between hur h and state has been understood in traditional Establishment Clause 8urispruden e+ is not dispositive when the government benefits those rituals in order to promote tribal self3determination$ Su h a ommodations are politi al ones under Gorton be ause they are )reasonably designed to further the ause of ,ndian self3government$) 41' @$S$ at 554$ =ut, even if traditional Establishment Clause prin iples apply, they must be applied in a manner that takes a ount of the spe ial onsiderations that underlie Gorton$ 0s Gorton learly states, the Constitution gives the federal government broad power in dealing with federally re ogni;ed tribes as <uasi3 sovereigns$ (he Establishment Clause annot appropriately be read to diminish the government6s ability to e!er ise this power, as would result from a dire t appli ation of standard Establishment Clause analysis in the onte!t of tribal religious a ommodations$ ,ndeed, as the 1eyote Way ourt suggested, su h analysis is plainly in ompatible with the federal government6s duty toward the tribes$ (he spe ial relationship between the federal government and tribes 33 a relationship that envisions a tive assistan e from the federal government 33 thus, at the very least, ne essitates a modifi ation of the usual Establishment Clause analysis when evaluating a ommodations of tribal religious pra ti es and sa red sites$ 0t a minimum, as Gorton suggests and /upert and 1eyote Way hold, the federal government may, without triggering 2arson stri t s rutiny, single out federally re ogni;ed ,ndian tribes for spe ial treatment that is not provided to other groups, if other Establishment Clause prin iples are satisfied$ *14+Goreover, we think that the government may do more than simply lift a government3imposed burden on tribal religious pra ti es, and may in addition alleviate burdens imposed by private parties$ While the2emon test ordinarily re<uires the government to lift a burden of its own making when a ommodating religion to deter ba k3door attempts to benefit religion, the spe ial relationship ontemplates dire t benefits for tribes$ .urthermore, su h a ommodations arguably may in lude a degree of involvement with ,ndian tribes that e! eeds the normal entanglement boundaries between government and religion$ While the 2emon test typi ally forbids e! essive government entanglement with religion, the spe ial relationship between the government and the tribes entails a

degree of government involvement in tribal religious pra ti es$ ,n short, the federal government has onsiderable dis retion to ena t a ommodations on behalf of federally re ogni;ed tribes$ *15+ We should not be understood to suggest that the government6s dis retion to a ommodate tribal religious pra ti es is unlimited, even under the broadest understanding of Gorton6s effe t on Establishment Clause analysis$ .or e!ample, the rationale of Gorton would not permit the government to a t with the impermissible purpose of diluting tribal religious pra ti es or establishing a national ,ndian religion$ We do not de ide here the pre ise limits of our analysis$ We believe, however, that Gorton leaves the government with broad latitude to a ommodate tribal religious pra ti es$ 0lthough we believe that the 2emon test does not apply with full for e to tribal religious a ommodations, no ourt has had o asion to address this pre ise issue$ /upert and 1eyote Way upheld laws that singled out tribes for spe ial treatment, but those laws omplied with 2emon in other respe ts$ =e ause the law is unsettled in this area, we re ommend that federal agen ies omply with 2emon to the e!tent feasible in implementing E!e utive "rder #o$ 1%&&'$ (hus, where possible, we would advise agen ies to minimi;e the risk of governmental entanglement and to target government3imposed burdens on a ess to, or eremonial use of, sa red sites$ *16+ ,f these hurdles are leared, the only remaining obsta le will be a <uestion of 2arson3like differential treatmentA and /upert and 1eyote Way have held * orre tly, in our view+ that, in light of Gorton, su h differential treatment is permissible when it is to the benefit of federally re ogni;ed tribes$ We also suggest that, where feasible, agen ies adopt regulations that are fa ially neutral with respe t to religion 33 i$e$, that do not on their fa e give priority to any religious use of the sites$ 0lthough su h neutral regulations would not be immune from traditional Establishment Clause s rutiny, they may engender fewer onstitutional hallenges$ .urthermore, as noted above, the Supreme Court has suggested that in the onte!t of government ;oning and land3use regulations, su h neutral a ommodations of religion are likely to withstand Establishment Clause s rutiny$ =$ .or the reasons outlined above, we believe that the distri t ourt in =ear 2odge erred in de laring the #ational 1ark Servi e *)#1S)+ management plan un onstitutional$ (hat plan provides, in relevant partD ) ommer ial use li enses for :une limbing guide a tivities will not be issued Eby the #1SF for :une 1996 and beyond$) #at6l 1ark Servi e, .inal Climbing 1lan Ganagement 1lan at -- *.eb$ 1995+$

0 group of ommer ial limbers sought to en8oin the operation of this part of the plan as a violation of the Establishment Clause$ (he distri t ourt granted a preliminary in8un tion, hara teri;ing the no3 ommer ial3 limbing rule as )affirmative a tion by the #1S to e! lude a legitimate publi use of the tower for the sole purpose of aiding or advan ing some 0meri an ,ndians6 religious pra ti es$) =ear 2odge, slip op$ at 11$ *1'+ .urthermore, the ourt found that the restri tion ) oer eEdF) limbers to onform their ondu t to the ,ndians6 religious pra ti es in a way that would entangle the government in regulating behavior$ ,d$ *18+ (he distri t ourt in orre tly analy;ed the 9evils (ower no3 ommer ial3 limbing rule$ 0s dis ussed above, regulations that a ommodate tribal religious pra ti es generally are permissible under Gortonand its progeny either be ause they are politi al *and not religious+ preferen es or be ause they are sub8e t to a different, less restri tive test under the Establishment Clause$ ,ndeed, the rule in this ase is perhaps the least problemati form of a ommodation on our analysis be ause it satisfies traditional Establishment Clause prin iples in every respe t, with the possible e! eption of one$ .or e!ample, the no3 ommer ial3 limbing rule reates no risk of e! essive entanglement be ause it does not involve the government in tribal affairs or vi e versa$ ,t merely regulates third parties *i$e$, ommer ial limbers+ 33 parties that have been long sub8e t to #1S regulation and permitting authority$ .urthermore, it does so in a manner that neither re<uires the government to onform limber ondu t to tribal religious pra ti es, nor re<uires the limbers to onform their own ondu t to those pra ti es, as the distri t ourt suggested$ .ar from entangling the government in monitoring limber ondu t at the site, the rule simply fore loses ommer ial limbing a tivity for a limited period of time$ (o the e!tent that the limbing ban lifts a burden imposed by #1S in permitting ommer ial limbing at the site in the first instan e, it satisfies this aspe t of the purpose prong of 2emon$ ,t is true that the rule was designed, at least in part, to a ommodate tribes and tribal religions and not other groups or religions$ ,t a hieves this purpose, however, without referring to tribal religious pra ti es or singling out religious uses of 9evils (ower for preferential treatment$ (hus, in order for the rule to survive onstitutional review, the government need rely upon Gorton only insofar as that ase makes lear that the government may a t with the purpose of a ommodating tribes without providing a omparable a ommodation to other religions$ We believe Gorton easily supports this modest appli ation and that the no3 ommer ial3 limbing rule therefore omports with the Establishment Clause$ 0lthough the distri t ourt rea hed the opposite on lusion, its de ision has no binding pre edential effe t on other ourts$ *19+

CB/,S("1BE/ 0 ting 0ssistant "ffi e of 2egal Counsel


B$ 0ttorney

SCB/"E9E/ ?eneral

See =ear 2odge Gultiple @se 0ss6n v$ =abbitt, #o$ 963CC3&6%39 *9$ Wyo$ :un$ 8, 1996+$I I Editor6s #oteD .ollowing both the distri t ourt6s grant of the preliminary in8un tion in the ited de ision and the issuan e of this opinion, the Se retary of the ,nterior revoked the ommer ial limbing ban at 9evils (ower in 9e ember 1996$ (he distri t ourt thereafter dismissed as moot the plaintiffs6 re<uest, based on a theory that the ban violated the Establishment Clause, for permanent in8un tive relief$ See=ear 2odge Gultiple @se 0ss6n v$ =abbitt, - .$ Supp$-d 1448, 1451 *9$ Wyo$ 1998+, aff6d, 1'5 .$%d 814 *1&th Cir$ 1999+$ - ,t is our understanding that E!e utive "rder #o$ 1%&&' only re<uires a ommodations for federally re ogni;ed tribes $ % (he Establishment Clause of the .irst 0mendment provides that )Congress shall make no law respe ting an establishment of religion$) @$S$ Const$ amend$ ,$ (he .ree E!er ise Clause sometimes re<uires the government to a omodate religious e!er ise$ (his memorandum on erns prin iples that allow the government to provide religion with spe ial treatment when not mandated by the .ree E!er ise Clause$

,n re ent ases, the Supreme Court has moved away from rigid appli ation of the 2emon framework$ See e$g$, /osenberger v$ /e tor J Cisitors of the @niv$ of Cirginia, 515 @$S$ 819 *1995+A >iryas :oel, 51- @$S$ 68'$ 0t the same time, however, the Court has ontinued to apply the prin iples arti ulated in 2emon, where relevant$ =e ause the Court has not announ ed a new test, we also use the 2emonprin iples to organi;e our analysis, and we supplement those prin iples where appropriate$
5 6 ,n

0mos, for e!ample, the Supreme Court upheld an e!emption for the se ular, nonprofit a tivities of religious organi;ations from (itle C,,6s prohibition on religious dis rimination in employment$ 48% @$S$ at %-'$ 0lthough a previous version of the statute already e!empted su h employers from the ban on religious dis rimination with respe t to their religious a tivities, the 0mos Court reasoned that )it is a signifi ant burden on a religious organi;ation to re<uire it, on pain of substantial liability, to predi t whi h of its a tivities a se ular ourt will onsider religious) and that su h )EfFear of potential liability might affe t the way an organi;ation arried out

what it understood to be its religious mission$) ,d$ at %%6$ Congress was entitled to lift this burden, the Court held$ ,n 2yng, the government adopted a plan permitting timber harvesting and road onstru tion in an area of national forest that was traditionally used for religious purposes by members of three 0meri an ,ndian (ribes$ 0fter re8e ting the tribes6 argument that the .ree E!er ise Clause prohibited the government from establishing its plan, the Court, in di ta, en ouraged the government to implement the plan in a manner that a ommodated tribal religious pra ti es$ 485 @$S$ at 454355$ (his was true even though there was no assuran e that other religions *or even other federally re ogni;ed tribes+ would re eive similar a ommodations$ ,n addition to 0mos and 2yng, see, e$g$, >iryas :oel, 51- @$S$ at '&6 *)1rior de isions have allowed religious ommunities and institutions to pursue their own interests free from governmental interferen e$)+A id$ at '&5 *)E(Fhe /eligion Clauses do not re<uire the government to be oblivious to impositions that legitimate e!er ises of state power may pla e on religious belief and pra ti e$)+A (e!as Gonthly, ,n $ v$ =ullo k, 489 @$S$ 1, 15 *1989+ *plurality opinion+ *e!emption must )removEeF a signifi ant state3imposed deterrent to the free e!er ise of religion)+$

,n Estate of (hornton v$ Caldor, ,n $, 4'- @$S$ '&% *1985+, the Court invalidated a statutory e!emption that alleviated a privately imposed burden on religious e!er ise$ (he Court reasoned that the statute, whi h re<uired employers to e! use employees from working on their designated Sabbath, took )no a ount of the onvenien e or interests of the employer or those of other employees who do not observe a Sabbath$) ,d$ at '&9$ 0s a general matter, (hornton suggests the importan e of weighing the interests of third parties when a ommodating religious e!er ise$ 0lthough there is no e!pli it re<uirement that the government onsider the effe t of a religious a ommodation on third parties, the Court has hara teri;ed e!emptions that )burdenEF non3benefi iaries markedly) as )un8ustifiable awards of assistan e to religious organi;ations) rather than permissible a ommodations$ (e!as Gonthly, 489 @$S$ at 15 *internal <uotations omitted+$
8 (he

Court applied this logi in (e!as Gonthly to invalidate a state ta! e!emption for religious periodi als$ /e8e ting the state6s argument that the .ree E!er ise Clause ompelled the ta! e!emption, the plurality observedD )E(Fhe State has addu ed no eviden e that the payment of a sales ta! by subs ribers to religious periodi als $ $ $ would offend their religious beliefs or inhibit religious a tivity$ $ $ $ #o on rete need to a ommodate religious a tivity has been shown$) 489 @$S$ at 18$ =e ause the ta! e!emption singled out religious periodi als for a benefit and ould not )reasonably be seen as removing a signifi ant state3imposed deterrent to the free e!er ise of religion,) the plurality found that it onstituted an impermissible subsidy to religion$ ,d$ at 15$

9 See

?illette v$ @nited States, 4&1 @$S$ 4%', 45- *19'1+ *)(he <uestion of government neutrality is not on luded by the observation that Ea statuteF on its fa e makes no dis rimination among religions, for the Establishment Clause forbids subtle departures from neutrality, 6religious gerrymanders,6 as well as obvious abuses$)+$ ,n G ?owan v$ Garyland, %66 @$S$ 4-& *1961+, for e!ample, the Court e!amined the purpose behind the state6s Sunday Closing laws, even though those laws merely prohibited ommer ial a tivity on Sunday and made no referen e to religion$ (he Court upheld the laws, despite their apparent religious purpose, be ause they advan ed several important se ular goals$ ,d$ at 4%%3%5$ See 2yng, 485 @$S$ at 45%354 *)#othing in our opinion should be read to en ourage governmental insensitivity to the religious needs of any iti;en$ (he ?overnment6s rights to the use of its own land, for e!ample, need not and should not dis ourage it from a ommodating religious pra ti es like those engaged in by the ,ndian respondents$)+A id$ at 454 *noting with approval the )many) ameliorative, fa ially neutral measures that the .orest Servi e planned 33 in luding building a road so as to avoid ,ndian sa red sites 33 and impli itly suggesting that su h )soli itous) hoi es would not violate the Establishment Clause despite their obvious purpose to a ommodate religious e!er ise+$ 0t the very least, the Establishment Clause is not seriously impli ated by fa ially neutral ;oning regulations that benefit religious as well as other )like) institutions$ See 2arkin v$ ?rendel6s 9en, ,n $, 459 @$S$ 116, 1-1 *198-+ *)E(Fhere an be little doubt about the power of a state to regulate the environment in the vi inity of s hools, hur hes, hospitals, and the like by e!er ise of reasonable ;oning laws$)+A id$ at 1-% *)(here an be little doubt that Eprote ting spiritual, ultural, and edu ational enters from the 6hurly3burly6 asso iated with li<uor outletsF embra es valid se ular legislative purposes) under 2emon$+$

where the re ord not only establishes a religious purpose but reveals no se ular purpose+A Edwards v$ 0guillard, 48- @$S$ 5'8, 59& *198'+ *finding legislation invalid if ba ked by )preeminent religious purpose)+A id$ at 599 *1owell, :$, on urring+ *observing that )religious purpose must predominate) for legislation to be invalid+$
11 See Walla e v$ :affree, 4'- @$S$ %8, 5636& *1985+ *invalidating moment of silen e statute

.or e!ample, in 2arkin, the Court invalidated a statute that granted religious bodies veto power over appli ations for li<uor li enses$ 9espite the State6s otherwise valid interest in prote ting hur hes, s hools, and like institutions from )the 6hurly3burly6 asso iated with li<uor outlets,) 459 @$S$ at 1-%, the Court found that the statute reated an impermissible )fusion) of governmental and religious fun tions$ ,d$at 1-6$ Similarly, in >iryas :oel, the Court invalidated a statute reating a s hool distri t for the Satmar Basidim in part be ause it )delegatEedF the State6s dis retionary authority

over publi s hools to a group defined by its hara ter as a religious ommunity$) 51@$S$ at 696$ ,n 2arson, the Supreme Court invalidated a portion of Ginnesota6s haritable soli itation registration and reporting re<uirements that e!empted only those religious organi;ations that re eived more than half of their funding from members or affiliated organi;ations$ 0pplying stri t s rutiny, the Court found that the e!emption was not losely fitted to further the government6s interest in prote ting its iti;ens from abusive soli itation pra ti es be ause there was no eviden e that predominantly member3funded organi;ations ommitted su h pra ti es less fre<uently than organi;ations re eiving the ma8ority of their funding elsewhere$ ,d$ at -44346$ Gore re ently, in >iryas :oel, the Supreme Court invalidated a statute reating a spe ial s hool distri t only for the religious en lave of Satmar Basidim$ ,t reasoned, in part, that the statute violated the prin iple that )government should not prefer one religion to another, or religion to irreligion) be ause the benefit flowed only to a single se t and there was )no assuran e that the ne!t similarly situated group seeking a s hool distri t of its own will re eive one$) 51- @$S$ at '&%$ Citing 2arson, the Court on luded that, )whatever the limits of permissible legislative a ommodations may be it is lear that neutrality as among religions must be honored$) ,d$ at '&63&' * itations omitted+$
1% 14 (o

the e!tent the Establishment Clause or any other provision of law prohibits the federal government from dis riminating between similarly situated federally re ogni;ed tribes, we note that E!e utive "rder #o$ 1%&&', whi h provides that federal agen ies )shall, to the e!tent pra ti able $ $ $ a ommodate a ess to and eremonial use of ,ndian sa red sites by ,ndian religious pra titioners,) ensures that all su h tribes will re eive a ommodations where possible, and we read that "rder to intend that similarly situated federally re ogni;ed tribes shall be treated similarly$ Cf$ >iryas :oel, 51- @$S$ at '&% *invalidating statute reating s hool distri t for the Satmar Basidim where there was )no assuran e that the ne!t similarly situated group seeking a s hool distri t of its own will re eive one)+$
15 1rior

to /upert and 1eyote Way, this "ffi e took a narrower view of the effe t on Establishment Clause analysis of the spe ial relationship between the federal government and federally re ogni;ed tribes$See 1eyote E!emption for #ative 0meri an Chur h, 5 "p$ "$2$C$ 4&%, 4193-& *1981+ * on luding that spe ial relationship does not affe t Establishment Clause analysis+$ ,n that "pinion, we stated that the uni<ue status of federally re ogni;ed tribes does not 8ustify spe ial treatment of tribal religious pra ti es$ =e ause the tribes6 uni<ue status derives from their politi al position as <uasi3sovereign nations, we reasoned that it only e!tends to preferen es that further tribal authority and self3governan e, not tribal religious

observan e$ We note that that "pinion was drafted without the benefit of /upert or 1eyote Wayand substantial ommentary arguing that tribal religious pra ti es are integral to tribal self3governan e$ See, e$g$, /i hard Ber;, 2egal 1rote tion for ,ndigenous CulturesD Sa red Sites and Communal /ights, '9 Ca$ 2$ /ev$ 691, '&%3&4 *199%+A Gi hael :$ Simpson, 0 ommodating ,ndian /eligionsD (he 1roposed 199% 0mendment to the 0meri an ,ndian /eligious .reedom 0 t, 54 Gont$ 2$ /ev$ 19, %4 *199%+A :a k .$ (rope, 1rote ting #ative 0meri an /eligious .reedomD (he 2egal, Bistori al, and Constitutional =asis for the 1roposed #ative 0meri an .ree E!er ise of /eligion 0 t, -& #$K$ @$ /ev$ 2$ J So $ Change %'%, %9% *199%+$ ,n addition, we do not believe that Gorton6s holding is limited to legislation dire tly related to ,ndian self3government fun tions$ (he reasoning in Gorton should apply as well to legislation that is rationally related to the furtheran e of Congress6s uni<ue obligation toward federally re ogni;ed tribes$ See, e$g$, 0laska Chapter v$ 1ier e, 694 .$-d 116-, 116' *9th Cir$ 198-+$
16 ,n

many ases, it might be argued that the federal government imposed a burden on tribal religious pra ti es when it o upied the land on whi h a sa red site is lo ated$ Gore often, it might suffi e that the government6s prior ,ndian regulations, as well as its prior ;oning and land3use de isions 33 in luding those that permit private parties to make use of the land on whi h the site sits 33 reated a burden on tribal religious e!er ise$ (he ourt relied on =adoni v$ Bigginson, 6%8 .$-d 1'-, 1'9 *1&th Cir$ 198&+, ert$ denied, 45- @$S$ 954 *1981+, in whi h the (enth Cir uit re8e ted a .ree E!er ise laim asserted by ,ndians seeking to ompletely e! lude tourists from a national monument$ We note that nothing in =adoni 3 whi h merely held that the federal government need not e! lude tourists from the monument under the .ree E!er ise Clause 33 pre luded the government from voluntarily a ommodating the tribal religious e!er ise under the Establishment Clause$ 0s the Supreme Court has observed, )EiFt is well established $ $ $ that EtFhe limits of permissible state a ommodation to religion are by no means o3e!tensive with the noninterferen e mandated by the .ree E!er ise Clause$) 0mos, 48% @$S$ at %%4 *internal <uotations omitted+$ (hus, )EtFhere is ample room under the Establishment Clause for benevolent neutrality whi h will permit religious e!er ise to e!ist without sponsorship and without interferen e$) ,d$ *internal <uotations omitted+$
1' 18 (he

ourt thus analogi;ed the limbing ban to the tribes6 re<uest in =adoni that the government re<uire tourists to a t in a respe tful and appre iative manner when visiting the site$

19 (he

distri t ourt6s de ision is unpublished and was issued in the onte!t of an e!pedited motion for preliminary in8un tion$ =riefing on the merits has yet to ommen e$