Rehnquist Court: Lyng v. Northwest Indian Cemetery Protective Association
U.S. Supreme Court
LYNG v. NORTHWEST INDIAN CEMETERY PROT. ASSN., 485 U.S. 439 (1988)
485 U.S. 439
LYNG, SECRETARY OF AGRICULTURE, ET AL. v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 86-1013.
Argued November 30, 1987
Decided April 19, 1988
In 1982, the United States Forest Service prepared a final environmental impact statement
for constructing a paved road through federal land, including the Chimney Rock area
of the Six Rivers National Forest. This area, as reported in a study commissioned
by the Service, has historically been used by certain American Indians for religious
rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting
the study's recommendation that the road not be completed through the Chimney Rock
area because it would irreparably damage the sacred areas, and also rejecting alternative
routes outside the National Forest, the Service selected a route through the Chimney
Rock area that avoided archeological sites and was removed as far as possible from
the sites used by the Indians for specific spiritual activities. At about the same
time, the Service also adopted a management plan allowing for timber harvesting in
the same area, but providing for protective zones around all the religious sites identified
in the study. After exhausting administrative remedies, respondents - an Indian organization,
individual Indians, nature organizations and members thereof, and the State of California
- filed suit in Federal District Court challenging both the road-building and timber-harvesting
decisions. The court issued a permanent injunction that prohibited the Government
from constructing the Chimney Rock section of the road or putting the timber-harvesting
plan into effect, holding, inter alia, that such actions would violate respondent
Indians' rights under the Free Exercise Clause of the First Amendment and would violate
certain federal statutes. The Court of Appeals affirmed in pertinent part.
Held:
1. The courts below did not clearly explain whether - in keeping with the principle
requiring that courts reach constitutional questions only when necessary - they determined
that a decision on the First Amendment issue was necessary because it might entitle
respondents to relief beyond that to which they were entitled on their statutory claims.
The structure and wording of the District Court's injunction, however, suggest that
the statutory holding would not have supported all the [485 U.S. 439, 440] relief
granted, and the Court of Appeals' silence as to the necessity of reaching the First
Amendment issue may have reflected its understanding that the District Court's injunction
necessarily rested in part on constitutional grounds. Because it appears reasonably
likely that the First Amendment issue was necessary to the decisions below, and because
the Government is confident that it can cure the statutory defects identified below,
it would be inadvisable for this Court to vacate and remand without addressing the
constitutional question on the merits. Pp. 445-447.
2. The Free Exercise Clause does not prohibit the Government from permitting timber
harvesting in the Chimney Rock area or constructing the proposed road. Pp. 447-458.
(a) In Bowen v. Roy, 476 U.S. 693 - which held that a federal statute requiring States
to use Social Security numbers in administering certain welfare programs did not violate
Indian religious rights under the Free Exercise Clause - this Court rejected the same
kind of challenge that respondents assert. Just as in Roy, the affected individuals
here would not be coerced by the Government's action into violating their religious
beliefs; nor would the governmental action penalize the exercise of religious rights
by denying religious adherents an equal share of the rights, benefits, and privileges
enjoyed by other citizens. Incidental effects of government programs, which may interfere
with the practice of certain religions, but which have no tendency to coerce individuals
into acting contrary to their religious beliefs, do not require government to bring
forward a compelling justification for its otherwise lawful actions. The Free Exercise
Clause is written in terms of what the government cannot do to the individual, not
in terms of what the individual can exact from the government. Even assuming that
the Government's actions here will virtually destroy the Indians' ability to practice
their religion, the Constitution simply does not provide a principle that could justify
upholding respondents' legal claims. Pp. 447-453.
(b) The Government's right to the use of its own lands need not and should not discourage
it from accommodating religious practices like those engaged in by the Indian respondents.
The Government has taken numerous steps to minimize the impact that construction of
the road will have on the Indians' religious activities - such as choosing the route
that best protects sites of specific rituals from adverse audible intrusions, and
planning steps to reduce the visual impact of the road on the surrounding country.
Such solicitude accords with the policy and requirements of the American Indian Religious
Freedom Act. Contrary to respondents' contention, however, that Act does not create
any enforceable legal right that could authorize the District Court's injunction.
Pp. 453-455.
795 F.2d 688, reversed and remanded. [485 U.S. 439, 441]
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
WHITE, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion,
in which MARSHALL and BLACKMUN, JJ., joined, post, p. 458. KENNEDY, J., took no part
in the consideration or decision of the case.
Andrew J. Pincus argued the cause for petitioners. With him on the briefs were Solicitor
General Fried, Acting Assistant Attorney General Marzulla, Deputy Solicitor General
Ayer, Robert L. Klarquist, and Jacques B. Gelin.
Marilyn B. Miles argued the cause for respondents. With her on the brief for the
Indian respondents was Stephen V. Quesenberry. John K. Van de Kamp, Attorney General,
R. H. Connett, Assistant Attorney General, and Edna Walz, Deputy Attorney General
filed a brief for respondent State of California. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of
Hawaii et al. by Kenneth O. Eikenberry, Attorney General of Washington, Timothy R.
Malone, Nixon Handy, and Mark S. Green, Assistant Attorneys General, Warren Price
III, Attorney General of Hawaii, Roger A. Tellinghuisen, Attorney General of South
Dakota, and David Wilkinson, Attorney General of Utah; for the Colorado Mining Association
et al. by Lawrence E. Stevens and Patrick J. Garver; for the Howonquet Community Association
et al. by Ronald A. Zumbrun and Robin L. Rivett; and for the city of Williams, Arizona,
by Gary Verburg.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties
Union Foundation et al. by John A. Powell, Steven R. Shapiro, Paul L. Hoffman, Mark
D. Rosenbaum, Alan L. Schlosser, Edward M. Chen, Matthew A. Coles, and Stephen L.
Pevar; for the American Jewish Congress et al. by Marc D. Stern, Lois C. Waldman,
and Amy Adelson; and for the Christian Legal Society et al. by Michael J. Woodruff,
Samuel Rabinove, Richard T. Foltin, and Jordan Lorence.
Steven C. Moore filed a brief for the National Congress of American Indians et al.
as amici curiae.
JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to consider whether the First Amendment's Free Exercise Clause
prohibits the Government from permitting timber harvesting in, or constructing a road
through, a portion of a National Forest that has traditionally [485 U.S. 439, 442]
been used for religious purposes by members of three American Indian tribes in northwestern
California. We conclude that it does not.
I
As part of a project to create a paved 75-mile road linking two California towns,
Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously
unpaved roads on federal land. In order to complete this project (the G-O road), the
Forest Service must build a 6-mile paved segment through the Chimney Rock section
of the Six Rivers National Forest. That section of the forest is situated between
two other portions of the road that are already complete.
In 1977, the Forest Service issued a draft environmental impact statement that discussed
proposals for upgrading an existing unpaved road that runs through the Chimney Rock
area. In response to comments on the draft statement, the Forest Service commissioned
a study of American Indian cultural and religious sites in the area. The Hoopa Valley
Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area
has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians.
The commissioned study, which was completed in 1979, found that the entire area "is
significant as an integral and indispensible part of Indian religious conceptualization
and practice." App. 181. Specific sites are used for certain rituals, and "successful
use of the [area] is dependent upon and facilitated by certain qualities of the physical
environment, the most important of which are privacy, silence, and an undisturbed
natural setting." Ibid. (footnote omitted). The study concluded that constructing
a road along any of the available routes "would cause serious and irreparable damage
to the sacred areas which are an integral and necessary part of the belief systems
and lifeway of Northwest California Indian peoples." Id., at 182. Accordingly, the
report recommended that the G-O road not be completed. [485 U.S. 439, 443]
In 1982, the Forest Service decided not to adopt this recommendation, and it prepared
a final environmental impact statement for construction of the road. The Regional
Forester selected a route that avoided archeological sites and was removed as far
as possible from the sites used by contemporary Indians for specific spiritual activities.
Alternative routes that would have avoided the Chimney Rock area altogether were rejected
because they would have required the acquisition of private land, had serious soil
stability problems, and would in any event have traversed areas having ritualistic
value to American Indians. See id., at 217-218. At about the same time, the Forest
Service adopted a management plan allowing for the harvesting of significant amounts
of timber in this area of the forest. The management plan provided for one-half mile
protective zones around all the religious sites identified in the report that had
been commissioned in connection with the G-O road.
After exhausting their administrative remedies, respondents - an Indian organization,
individual Indians, nature organizations and individual members of those organizations,
and the State of California - challenged both the road-building and timber-harvesting
decisions in the United States District Court for the Northern District of California.
Respondents claimed that the Forest Service's decisions violated the Free Exercise
Clause, the Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended,
33 U.S.C. 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 83 Stat.
852, 42 U.S.C. 4321 et seq., several other federal statutes, and governmental trust
responsibilities to Indians living on the Hoopa Valley Reservation.
After a trial, the District Court issued a permanent injunction prohibiting the Government
from constructing the Chimney Rock section of the G-O road or putting the timber-harvesting
management plan into effect. See Northwest Indian Cemetery Protective Assn. v. Peterson,
565 F. Supp. 586 (1983). The court found that both actions would violate [485 U.S.
439, 444] the Free Exercise Clause because they "would seriously damage the salient
visual, aural, and environmental qualities of the high country." Id., at 594-595.
The court also found that both proposed actions would violate the FWPCA, and that
the environmental impact statements for construction of the road were deficient under
the NEPA. Finally, the court concluded that both projects would breach the Government's
trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley
Indians.
While an appeal was pending before the United States Court of Appeals for the Ninth
Circuit, Congress enacted the California Wilderness Act of 1984, Pub. L. 98-425, 98
Stat. 1619. Under that statute, much of the property covered by the Forest Service's
management plan is now designated a wilderness area, which means that commercial activities
such as timber harvesting are forbidden. The statute exempts a narrow strip of land,
coinciding with the Forest Service's proposed route for the remaining segment of the
G-O road, from the wilderness designation. The legislative history indicates that
this exemption was adopted "to enable the completion of the Gasquet-Orleans Road project
if the responsible authorities so decide." S. Rep. No. 98-582, p. 29 (1984). The existing
unpaved section of road, however, lies within the wilderness area and is therefore
now closed to general traffic.
A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective
Assn. v. Peterson, 795 F.2d 688 (1986). The panel unanimously rejected the District
Court's conclusion that the Government's proposed actions would breach its trust responsibilities
to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction
to the extent that it had been rendered moot by the California Wilderness Act, which
now prevents timber harvesting in certain areas covered by the District Court's order.
The District Court's decision, to the extent that it rested on statutory grounds,
was otherwise unanimously affirmed. [485 U.S. 439, 445]
By a divided decision, the District Court's constitutional ruling was also affirmed.
Relying primarily on the Forest Service's own commissioned study, the majority found
that construction of the Chimney Rock section of the G-O road would have significant,
though largely indirect, adverse effects on Indian religious practices. The majority
concluded that the Government had failed to demonstrate a compelling interest in the
completion of the road, and that it could have abandoned the road without thereby
creating "a religious preserve for a single group in violation of the establishment
clause." Id., at 694. The majority apparently applied the same analysis to logging
operations that might be carried out in portions of the Chimney Rock area not covered
by the California Wilderness Act. See id., at 692-693 ("Because most of the high country
has now been designated by Congress as a wilderness area, the issue of logging becomes
less significant, although it does not disappear").
The dissenting judge argued that certain of the adverse effects on the Indian respondents'
religious practices could be eliminated by less drastic measures than a ban on building
the road, and that other actual or suggested adverse effects did not pose a serious
threat to the Indians' religious practices. He also concluded that the injunction
against timber harvesting needed to be reconsidered in light of the California Wilderness
Act: "It is not clear whether the district court would have issued an injunction based
upon the development of the remaining small parcels. Accordingly, I would remand to
allow the district court to reevaluate its injunction in light of the Act." Id., at
704.
II
We begin by noting that the courts below did not articulate the bases of their decisions
with perfect clarity. A fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the necessity
of deciding them. See Three [485 U.S. 439, 446] Affiliated Tribes of Ft. Berthold
Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157 -158 (1984); see also, e.
g., Jean v. Nelson, 472 U.S. 846, 854 (1985); Gulf Oil Co. v. Bernard, 452 U.S. 89,
99 (1981); Ashwander v. TVA, 297 U.S. 288, 346 -348 (1936) (Brandeis, J., concurring).
This principle required the courts below to determine, before addressing the constitutional
issue, whether a decision on that question could have entitled respondents to relief
beyond that to which they were entitled on their statutory claims. If no additional
relief would have been warranted, a constitutional decision would have been unnecessary
and therefore inappropriate.
Neither the District Court nor the Court of Appeals explained or expressly articulated
the necessity for their constitutional holdings. Were we persuaded that those holdings
were unnecessary, we could simply vacate the relevant portions of the judgment below
without discussing the merits of the constitutional issue. The structure and wording
of the District Court's injunctive order, however, suggest that the statutory holdings
would not have supported all the relief granted. The order is divided into four sections.
Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek
Roadless Area. The injunction prohibits the Forest Service from engaging in timber
harvesting or road building anywhere on the tract "unless and until" compliance with
the NEPA and the FWPCA have been demonstrated. 565 F. Supp., at 606-607. The sections
of the injunction dealing with the smaller Chimney Rock area (i. e., the area affected
by the First Amendment challenge) are worded differently. The Forest Service is permanently
enjoined, without any qualifying language, from constructing the proposed portion
of the G-O road "and/or any alternative route" through that area; similarly, the injunction
forbids timber harvesting or the construction of logging roads in the Chimney Rock
area pursuant to the Forest Service's proposed management plan "or any other land
management plan." [485 U.S. 439, 447] Id., at 606 (emphasis added). These differences
in wording suggest, without absolutely implying, that an injunction covering the Chimney
Rock area would in some way have been conditional, or narrower in scope, if the District
Court had not decided the First Amendment issue as it did. Similarly, the silence
of the Court of Appeals as to the necessity of reaching the First Amendment issue
may have reflected its understanding that the District Court's injunction necessarily
rested in part on constitutional grounds.
Because it appears reasonably likely that the First Amendment issue was necessary
to the decisions below, we believe that it would be inadvisable to vacate and remand
without addressing that issue on the merits. This conclusion is strengthened by considerations
of judicial economy. The Government, which petitioned for certiorari on the constitutional
issue alone, has informed us that it believes it can cure the statutory defects identified
below, intends to do so, and will not challenge the adverse statutory rulings. Tr.
of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would
be vindicated by sending this case on what would almost certainly be a brief round
trip to the courts below.
III
A
The Free Exercise Clause of the First Amendment provides that "Congress shall make
no law . . . prohibiting the free exercise [of religion]." It is undisputed that the
Indian respondents' beliefs are sincere and that the Government's proposed actions
will have severe adverse effects on the practice of their religion. Those respondents
contend that the burden on their religious practices is heavy enough to violate the
Free Exercise Clause unless the Government can demonstrate a compelling need to complete
the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree.
[485 U.S. 439, 448]
In Bowen v. Roy, 476 U.S. 693 (1986), we considered a challenge to a federal statute
that required the States to use Social Security numbers in administering certain welfare
programs. Two applicants for benefits under these programs contended that their religious
beliefs prevented them from acceding to the use of a Social Security number for their
2-year-old daughter because the use of a numerical identifier would "`rob the spirit'
of [their] daughter and prevent her from attaining greater spiritual power." Id.,
at 696. Similarly, in this case, it is said that disruption of the natural environment
caused by the G-O road will diminish the sacredness of the area in question and create
distractions that will interfere with "training and ongoing religious experience of
individuals using [sites within] the area for personal medicine and growth . . . and
as integrated parts of a system of religious belief and practice which correlates
ascending degrees of personal power with a geographic hierarchy of power." App. 181.
Cf. id., at 178 ("Scarred hills and mountains, and disturbed rocks destroy the purity
of the sacred areas, and [Indian] consultants repeatedly stressed the need of a training
doctor to be undistracted by such disturbance"). The Court rejected this kind of challenge
in Roy:
"The Free Exercise Clause simply cannot be understood to require the Government to
conduct its own internal affairs in ways that comport with the religious beliefs of
particular citizens. Just as the Government may not insist that [the Roys] engage
in any set form of religious observance, so [they] may not demand that the Government
join in their chosen religious practices by refraining from using a number to identify
their daughter. . . .
". . . The Free Exercise Clause affords an individual protection from certain forms
of governmental compulsion; it does not afford an individual a right to dictate the
conduct of the Government's internal procedures." 476 U.S., at 699 -700. [485 U.S.
439, 449]
The building of a road or the harvesting of timber on publicly owned land cannot
meaningfully be distinguished from the use of a Social Security number in Roy. In
both cases, the challenged Government action would interfere significantly with private
persons' ability to pursue spiritual fulfillment according to their own religious
beliefs. In neither case, however, would the affected individuals be coerced by the
Government's action into violating their religious beliefs; nor would either governmental
action penalize religious activity by denying any person an equal share of the rights,
benefits, and privileges enjoyed by other citizens.
We are asked to distinguish this case from Roy on the ground that the infringement
on religious liberty here is "significantly greater," or on the ground that the Government
practice in Roy was "purely mechanical" whereas this case involves "a case-by-case
substantive determination as to how a particular unit of land will be managed." Brief
for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished
from Roy because "the government action is not at some physically removed location
where it places no restriction on what a practitioner may do." Brief for Respondent
State of California 18. The State suggests that the Social Security number in Roy
"could be characterized as interfering with Roy's religious tenets from a subjective
point of view, where the government's conduct of `its own internal affairs' was known
to him only secondhand and did not interfere with his ability to practice his religion."
Id., at 19 (footnote omitted; internal citation omitted). In this case, however, it
is said that the proposed road will "physically destro[y] the environmental conditions
and the privacy without which the [religious] practices cannot be conducted." Ibid.
These efforts to distinguish Roy are unavailing. This Court cannot determine the
truth of the underlying beliefs that led to the religious objections here or in Roy,
see Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144 , n. 9 (1987),
and accordingly cannot weigh the adverse effects [485 U.S. 439, 450] on the appellees
in Roy and compare them with the adverse effects on the Indian respondents. Without
the ability to make such comparisons, we cannot say that the one form of incidental
interference with an individual's spiritual activities should be subjected to a different
constitutional analysis than the other.
Respondents insist, nonetheless, that the courts below properly relied on a factual
inquiry into the degree to which the Indians' spiritual practices would become ineffectual
if the G-O road were built. They rely on several cases in which this Court has sustained
free exercise challenges to government programs that interfered with individuals'
ability to practice their religion. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory
school-attendance law); Sherbert v. Verner, 374 U.S. 398 (1963) (denial of unemployment
benefits to applicant who refused to accept work requiring her to violate the Sabbath);
Thomas v. Review Board, Indiana Employment Security Div., 450 U.S. 707 (1981) (denial
of unemployment benefits to applicant whose religion forbade him to fabricate weapons);
Hobbie, supra (denial of unemployment benefits to religious convert who resigned position
that required her to work on the Sabbath).
Even apart from the inconsistency between Roy and respondents' reading of these cases,
their interpretation will not withstand analysis. It is true that this Court has repeatedly
held that indirect coercion or penalties on the free exercise of religion, not just
outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for
example, ineligibility for unemployment benefits, based solely on a refusal to violate
the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra,
at 404. This does not and cannot imply that incidental effects of government programs,
which may make it more difficult to practice certain religions but which have no tendency
to coerce individuals into acting contrary to their religious beliefs, require government
to bring forward a compelling justification [485 U.S. 439, 451] for its otherwise
lawful actions. The crucial word in the constitutional text is "prohibit": "For the
Free Exercise Clause is written in terms of what the government cannot do to the individual,
not in terms of what the individual can exact from the government." Sherbert, supra,
at 412 (Douglas, J., concurring).
Whatever may be the exact line between unconstitutional prohibitions on the free
exercise of religion and the legitimate conduct by government of its own affairs,
the location of the line cannot depend on measuring the effects of a governmental
action on a religious objector's spiritual development. The Government does not dispute,
and we have no reason to doubt, that the logging and road-building projects at issue
in this case could have devastating effects on traditional Indian religious practices.
Those practices are intimately and inextricably bound up with the unique features
of the Chimney Rock area, which is known to the Indians as the "high country." Individual
practitioners use this area for personal spiritual development; some of their activities
are believed to be critically important in advancing the welfare of the Tribe, and
indeed, of mankind itself. The Indians use this area, as they have used it for a very
long time, to conduct a wide variety of specific rituals that aim to accomplish their
religious goals. According to their beliefs, the rituals would not be efficacious
if conducted at other sites than the ones traditionally used, and too much disturbance
of the area's natural state would clearly render any meaningful continuation of traditional
practices impossible. To be sure, the Indians themselves were far from unanimous in
opposing the G-O road, see App. 180, and it seems less than certain that construction
of the road will be so disruptive that it will doom their religion. Nevertheless,
we can assume that the threat to the efficacy of at least some religious practices
is extremely grave.
Even if we assume that we should accept the Ninth Circuit's prediction, according
to which the G-O road will "virtually destroy the . . . Indians' ability to practice
their religion," [485 U.S. 439, 452] 795 F.2d, at 693 (opinion below), the Constitution
simply does not provide a principle that could justify upholding respondents' legal
claims. However much we might wish that it were otherwise, government simply could
not operate if it were required to satisfy every citizen's religious needs and desires.
A broad range of government activities - from social welfare programs to foreign aid
to conservation projects - will always be considered essential to the spiritual well-being
of some citizens, often on the basis of sincerely held religious beliefs. Others will
find the very same activities deeply offensive, and perhaps incompatible with their
own search for spiritual fulfillment and with the tenets of their religion. The First
Amendment must apply to all citizens alike, and it can give to none of them a veto
over public programs that do not prohibit the free exercise of religion. The Constitution
does not, and courts cannot, offer to reconcile the various competing demands on government,
many of them rooted in sincere religious belief, that inevitably arise in so diverse
a society as ours. That task, to the extent that it is feasible, is for the legislatures
and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of
religious factionalism are best restrained through competition among a multiplicity
of religious sects).
One need not look far beyond the present case to see why the analysis in Roy, but
not respondents' proposed extension of Sherbert and its progeny, offers a sound reading
of the Constitution. Respondents attempt to stress the limits of the religious servitude
that they are now seeking to impose on the Chimney Rock area of the Six Rivers National
Forest. While defending an injunction against logging operations and the construction
of a road, they apparently do not at present object to the area's being used by recreational
visitors, other Indians, or forest rangers. Nothing in the principle for which they
contend, however, would distinguish this case from another lawsuit in which they (or
similarly situated religious objectors) might seek to exclude all human activity but
[485 U.S. 439, 453] their own from sacred areas of the public lands. The Indian respondents
insist that "[p]rivacy during the power quests is required for the practitioners to
maintain the purity needed for a successful journey." Brief for Indian Respondents
8 (emphasis added; citation to record omitted). Similarly: "The practices conducted
in the high country entail intense meditation and require the practitioner to achieve
a profound awareness of the natural environment. Prayer seats are oriented so there
is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness."
Id., at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these
practices is implied when one notes that such beliefs could easily require de facto
beneficial ownership of some rather spacious tracts of public property. Even without
anticipating future cases, the diminution of the Government's property rights, and
the concomitant subsidy of the Indian religion, would in this case be far from trivial:
the District Court's order permanently forbade commercial timber harvesting, or the
construction of a two-lane road, anywhere within an area covering a full 27 sections
(i. e. more than 17,000 acres) of public land.
The Constitution does not permit government to discriminate against religions that
treat particular physical sites as sacred, and a law prohibiting the Indian respondents
from visiting the Chimney Rock area would raise a different set of constitutional
questions. Whatever rights the Indians may have to the use of the area, however, those
rights do not divest the Government of its right to use what is, after all, its land.
Cf. Bowen v. Roy, 476 U.S., at 724 -727 (O'CONNOR, J., concurring in part and dissenting
in part) (distinguishing between the Government's use of information in its possession
and the Government's requiring an individual to provide such information).
B
Nothing in our opinion should be read to encourage governmental insensitivity to
the religious needs of any citizen. [485 U.S. 439, 454] The Government's rights to
the use of its own land, for example, need not and should not discourage it from accommodating
religious practices like those engaged in by the Indian respondents. Cf. Sherbert,
374 U.S., at 422 -423 (Harlan, J., dissenting). It is worth emphasizing, therefore,
that the Government has taken numerous steps in this very case to minimize the impact
that construction of the G-O road will have on the Indians' religious activities.
First, the Forest Service commissioned a comprehensive study of the effects that the
project would have on the cultural and religious value of the Chimney Rock area. The
resulting 423-page report was so sympathetic to the Indians' interests that it has
constituted the principal piece of evidence relied on by respondents throughout this
litigation.
Although the Forest Service did not in the end adopt the report's recommendation
that the project be abandoned, many other ameliorative measures were planned. No sites
where specific rituals take place were to be disturbed. In fact, a major factor in
choosing among alternative routes for the road was the relation of the various routes
to religious sites: the route selected by the Regional Forester is, he noted, "the
farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions
associated with the road would be less than all other alternatives." App. 102. Nor
were the Forest Service's concerns limited to "audible intrusions." As the dissenting
judge below observed, 10 specific steps were planned to reduce the visual impact of
the road on the surrounding country. See 795 F.2d, at 703 (Beezer, J., dissenting
in part).
Except for abandoning its project entirely, and thereby leaving the two existing
segments of road to dead-end in the middle of a National Forest, it is difficult to
see how the Government could have been more solicitous. Such solicitude accords with
"the policy of the United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise the traditional religions
[485 U.S. 439, 455] of the American Indian . . . including but not limited to access
to sites, use and possession of sacred objects, and the freedom to worship through
ceremonials and traditional rites." American Indian Religious Freedom Act (AIRFA),
Pub. L. 95-341, 92 Stat. 469, 42 U.S.C. 1996.
Respondents, however, suggest that AIRFA goes further and in effect enacts their
interpretation of the First Amendment into statutory law. Although this contention
was rejected by the District Court, they seek to defend the judgment below by arguing
that AIRFA authorizes the injunction against completion of the G-O road. This argument
is without merit. After reciting several legislative findings, AIRFA "resolves" upon
the policy quoted above. A second section of the statute, 92 Stat. 470, required an
evaluation of federal policies and procedures, in consultation with native religious
leaders, of changes necessary to protect and preserve the rights and practices in
question. The required report dealing with this evaluation was completed and released
in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much
as a hint of any intent to create a cause of action or any judicially enforceable
individual rights.
What is obvious from the face of the statute is confirmed by numerous indications
in the legislative history. The sponsor of the bill that became AIRFA, Representative
Udall, called it "a sense of Congress joint resolution," aimed at ensuring that "the
basic right of the Indian people to exercise their traditional religious practices
is not infringed without a clear decision on the part of the Congress or the administrators
that such religious practices must yield to some higher consideration." 124 Cong.
Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer
special religious rights on Indians," would "not change any existing State or Federal
law," and in fact "has no teeth in it." Id., at 21444-21445. [485 U.S. 439, 456]
C
The dissent proposes an approach to the First Amendment that is fundamentally inconsistent
with the principles on which our decision rests. Notwithstanding the sympathy that
we all must feel for the plight of the Indian respondents, it is plain that the approach
taken by the dissent cannot withstand analysis. On the contrary, the path towards
which it points us is incompatible with the text of the Constitution, with the precedents
of this Court, and with a responsible sense of our own institutional role.
The dissent begins by asserting that the "constitutional guarantee we interpret today
. . . is directed against any form of government action that frustrates or inhibits
religious practice." Post, at 459 (emphasis added). The Constitution, however, says
no such thing. Rather, it states: "Congress shall make no law . . . prohibiting the
free exercise [of religion]." U.S. Const., Amdt. 1 (emphasis added).
As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government
activities that the religious objectors sincerely believed would "`"rob the spirit"
of [their] daughter and prevent her from attaining greater spiritual power.'" See
supra, at 448 (quoting Roy, 476 U.S., at 696 ). The dissent now offers to distinguish
that case by saying that the Government was acting there "in a purely internal manner,"
whereas land-use decisions "are likely to have substantial external effects." Post,
at 470. Whatever the source or meaning of the dissent's distinction, it has no basis
in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual
power, is both a "substantial external effect" and one that is remarkably similar
to the injury claimed by respondents in the case before us today. The dissent's reading
of Roy would effectively overrule that decision, without providing any compelling
justification for doing so.
The dissent also misreads Wisconsin v. Yoder, 406 U.S. 205 (1972). The statute at
issue in that case prohibited the [485 U.S. 439, 457] Amish parents, on pain of criminal
prosecution, from providing their children with the kind of education required by
the Amish religion. Id., at 207-209, 223. The statute directly compelled the Amish
to send their children to public high schools "contrary to the Amish religion and
way of life." Id., at 209. The Court acknowledged that the statute might be constitutional,
despite its coercive nature, if the State could show with sufficient "particularity
how its admittedly strong interest in compulsory education would be adversely affected
by granting an exemption to the Amish." Id., at 236 (citation omitted). The dissent's
out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder
opinion to support the proposition that the "impact" on the Amish religion would have
been constitutionally problematic if the statute at issue had not been coercive in
nature. Cf. post, at 466.
Perceiving a "stress point in the longstanding conflict between two disparate cultures,"
the dissent attacks us for declining to "balanc[e] these competing and potentially
irreconcilable interests, choosing instead to turn this difficult task over to the
Federal Legislature." Post, at 473. Seeing the Court as the arbiter, the dissent proposes
a legal test under which it would decide which public lands are "central" or "indispensable"
to which religions, and by implication which are "dispensable" or "peripheral," and
would then decide which government programs are "compelling" enough to justify "infringement
of those practices." Post, at 475. We would accordingly be required to weigh the value
of every religious belief and practice that is said to be threatened by any government
program. Unless a "showing of `centrality,'" post, at 474, is nothing but an assertion
of centrality, see post, at 475, the dissent thus offers us the prospect of this Court's
holding that some sincerely held religious beliefs and practices are not "central"
to certain religions, despite protestations to the contrary from the religious objectors
who brought the lawsuit. In other words, the dissent's approach would [485 U.S. 439,
458] require us to rule that some religious adherents misunderstand their own religious
beliefs. We think such an approach cannot be squared with the Constitution or with
our precedents, and that it would cast the Judiciary in a role that we were never
intended to play.
IV
The decision of the court below, according to which the First Amendment precludes
the Government from completing the G-O road or from permitting timber harvesting in
the Chimney Rock area, is reversed. In order that the District Court's injunction
may be reconsidered in light of this holding, and in the light of any other relevant
events that may have intervened since the injunction issued, the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of this case.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
"`[T]he Free Exercise Clause,'" the Court explains today, "`is written in terms of
what the government cannot do to the individual, not in terms of what the individual
can exact from the government.'" Ante, at 451 (quoting Sherbert v. Verner, 374 U.S.
398, 412 (1963) (Douglas, J., concurring)). Pledging fidelity to this unremarkable
constitutional principle, the Court nevertheless concludes that even where the Government
uses federal land in a manner that threatens the very existence of a Native American
religion, the Government is simply not "doing" anything to the practitioners of that
faith. Instead, the Court believes that Native Americans who request that the Government
refrain from destroying their religion effectively seek to exact from the Government
de facto beneficial ownership of federal property. These two astonishing conclusions
follow naturally from the Court's determination [485 U.S. 439, 459] that federal land-use
decisions that render the practice of a given religion impossible do not burden that
religion in a manner cognizable under the Free Exercise Clause, because such decisions
neither coerce conduct inconsistent with religious belief nor penalize religious activity.
The constitutional guarantee we interpret today, however, draws no such fine distinctions
between types of restraints on religious exercise, but rather is directed against
any form of governmental action that frustrates or inhibits religious practice. Because
the Court today refuses even to acknowledge the constitutional injury respondents
will suffer, and because this refusal essentially leaves Native Americans with absolutely
no constitutional protection against perhaps the gravest threat to their religious
practices, I dissent.
I
For at least 200 years and probably much longer, the Yurok, Karok, and Tolowa Indians
have held sacred an approximately 25-square-mile area of land situated in what is
today the Blue Creek Unit of Six Rivers National Forest in northwestern California.
As the Government readily concedes, regular visits to this area, known to respondent
Indians as the "high country," have played and continue to play a "critical" role
in the religious practices and rituals of these Tribes. Brief for Petitioners 3. Those
beliefs, only briefly described in the Court's opinion, are crucial to a proper understanding
of respondents' claims.
As the Forest Service's commissioned study, the Theodoratus Report, explains, for
Native Americans religion is not a discrete sphere of activity separate from all others,
and any attempt to isolate the religious aspects of Indian life "is in reality an
exercise which forces Indian concepts into non-Indian categories." App. 110; D. Theodoratus,
Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National
Forest (1979). Thus, for most Native Americans, "[t]he area of worship cannot be delineated
from [485 U.S. 439, 460] social, political, cultur[al], and other areas o[f] Indian
lifestyle." American Indian Religious Freedom, Hearings on S. J. Res. 102 before the
Senate Select Committee on Indian Affairs, 95th Cong., 2d Sess., 86 (1978) (statement
of Barney Old Coyote, Crow Tribe). A pervasive feature of this lifestyle is the individual's
relationship with the natural world; this relationship, which can accurately though
somewhat incompletely be characterized as one of stewardship, forms the core of what
might be called, for want of a better nomenclature, the Indian religious experience.
While traditional Western religions view creation as the work of a deity "who institutes
natural laws which then govern the operation of physical nature," tribal religions
regard creation as an ongoing process in which they are morally and religiously obligated
to participate. U.S. Federal Agencies Task Force, American Indian Religious Freedom
Act Report 11 (1979) (Task Force Report). Native Americans fulfill this duty through
ceremonies and rituals designed to preserve and stabilize the earth and to protect
humankind from disease and other catastrophes. Failure to conduct these ceremonies
in the manner and place specified, adherents believe, will result in great harm to
the earth and to the people whose welfare depends upon it. Id., at 10.
In marked contrast to traditional Western religions, the belief systems of Native
Americans do not rely on doctrines, creeds, or dogmas. Established or universal truths
- the mainstay of Western religions - play no part in Indian faith. Ceremonies are
communal efforts undertaken for specific purposes in accordance with instructions
handed down from generation to generation. Commentaries on or interpretations of the
rituals themselves are deemed absolute violations of the ceremonies, whose value lies
not in their ability to explain the natural world or to enlighten individual believers
but in their efficacy as protectors and enhancers of tribal existence. Ibid. Where
dogma lies at the heart of Western religions, Native American faith is inextricably
[485 U.S. 439, 461] bound to the use of land. The site-specific nature of Indian religious
practice derives from the Native American perception that land is itself a sacred,
living being. See Suagee, American Indian Religious Freedom and Cultural Resources
Management: Protecting Mother Earth's Caretakers, 10 Am. Ind. L. Rev. 1, 10 (1982).
Rituals are performed in prescribed locations not merely as a matter of traditional
orthodoxy, but because land, like all other living things, is unique, and specific
sites possess different spiritual properties and significance. Within this belief
system, therefore, land is not fungible; indeed, at the time of the Spanish colonization
of the American Southwest, "all . . . Indians held in some form a belief in a sacred
and indissoluble bond between themselves and the land in which their settlements were
located." E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico, and the United
States on the Indians of the Southwest, 1533-1960, p. 576 (1962).
For respondent Indians, the most sacred of lands is the high country where, they
believe, prehuman spirits moved with the coming of humans to the Earth. Because these
spirits are seen as the source of religious power, or "medicine," many of the tribes'
rituals and practices require frequent journeys to the area. Thus, for example, religious
leaders preparing for the complex of ceremonies that underlie the Tribes' World Renewal
efforts must travel to specific sites in the high country in order to attain the medicine
necessary for successful renewal. Similarly, individual tribe members may seek curative
powers for the healing of the sick, or personal medicine for particular purposes such
as good luck in singing, hunting, or love. A period of preparation generally precedes
such visits, and individuals must select trails in the sacred area according to the
medicine they seek and their abilities, gradually moving to increasingly more powerful
sites, which are typically located at higher altitudes. Among the most powerful of
sites are Chimney Rock, Doctor Rock, and Peak 8, all of which are elevated rock outcroppings.
[485 U.S. 439, 462]
According to the Theodoratus Report, the qualities "of silence, the aesthetic perspective,
and the physical attributes, are an extension of the sacredness of [each] particular
site." App. 148. The act of medicine making is akin to meditation: the individual
must integrate physical, mental, and vocal actions in order to communicate with the
prehuman spirits. As a result, "successful use of the high country is dependent upon
and facilitated by certain qualities of the physical environment, the most important
of which are privacy, silence, and an undisturbed natural setting." Id., at 181. Although
few Tribe members actually make medicine at the most powerful sites, the entire Tribe's
welfare hinges on the success of the individual practitioners.
Beginning in 1972, the Forest Service began preparing a multiple-use management plan
for the Blue Creek Unit. The plan's principal features included the harvesting of
733 million board feet of Douglas fir over an 80-year period and the completion of
a 6-mile segment of paved road running between two northern California towns, Gasquet
and Orleans (the G-O road). The road's primary purpose was to provide a route for
hauling the timber harvested under the management plan; in addition, it would enhance
public access to the Six Rivers and other national forests, and allow for more efficient
maintenance and fire control by the Forest Service itself. In the mid-1970's, the
Forest Service circulated draft environmental impact statements evaluating the effects
of several proposed routes for the final segment of the G-O road, including at least
two that circumnavigated the high country altogether. Ultimately, however, the Service
settled on a route running along the Chimney Rock Corridor, which traverses the Indians'
sacred lands.
Respondent Indians brought suit to enjoin implementation of the plan, alleging that
the road construction and timber harvesting would impermissibly interfere with their
religious practices in violation of the Free Exercise Clause of the First [485 U.S.
439, 463] Amendment. 1 Following a trial, the District Court granted the requested
injunctive relief. The court found that "use of the high country is essential to [respondents']
`World Renewal' ceremonies . . . which constitute the heart of the Northwest Indian
religious belief system," and that "`[i]ntrusions on the sanctity of the Blue Creek
high country are . . . potentially destructive of the very core of Northwest [Indian]
religious beliefs and practices.'" Northwest Indian Cemetery Protective Assn. v. Peterson,
565 F. Supp. 586, 594-595 (ND Cal. 1983) (quoting the Theodoratus Report, at 420).
Concluding that these burdens on respondents' religious practices were sufficient
to trigger the protections of the Free Exercise Clause, the court found that the interests
served by the G-O road and the management plan were insufficient to justify those
burdens. In particular, the court found that the road would not improve access to
timber resources in the Blue Creek Unit and indeed was unnecessary to the harvesting
of that timber; that it would not significantly improve the administration of the
Six Rivers National Forest; and that it would increase recreational access only marginally,
and at the expense of the very pristine environment that makes the area suitable for
primitive recreational use in the first place. 565 F. Supp., at 595-596. The court
further found that the unconnected segments of the road had independent utility, 2
and that although completion of the [485 U.S. 439, 464] Chimney Rock segment would
reduce timber-hauling costs, it would not generate new jobs but would instead merely
shift work from one area of the region to another. Id., at 596. Finally, in enjoining
the proposed harvesting activities, the court found that the Blue Creek Unit's timber
resources were but a small fraction of those located in the entire National Forest
and that the local timber industry would not suffer seriously if access to this fraction
were foreclosed. Ibid.
While the case was pending on appeal before the Court of Appeals for the Ninth Circuit,
Congress passed the California Wilderness Act of 1984, Pub. L. 98-425, 98 Stat. 1619,
which designates most of the Blue Creek Unit a wilderness area, and thus precludes
logging and all other commercial activities in most of the area covered by the Forest
Service's management plan. Thereafter, the Court of Appeals affirmed the District
Court's determination that the proposed harvesting and construction activities violated
respondents' constitutional rights. Recognizing that the high country is "indispensable"
to the religious lives of the approximately 5,000 Tribe members who reside in the
area, Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688, 692 (1986),
the court concluded "that the proposed government operations would virtually destroy
the . . . Indians' ability to practice their religion." Id., at 693 (emphasis added).
3 Like the lower court, the Court of Appeals found [485 U.S. 439, 465] the Government's
interests in building the road and permitting limited timber harvesting - interests
which of course were considerably undermined by passage of the California Wilderness
Act - did not justify the destruction of respondents' religion. Id., at 695.
II
The Court does not for a moment suggest that the interests served by the G-O road
are in any way compelling, or that they outweigh the destructive effect construction
of the road will have on respondents' religious practices. Instead, the Court embraces
the Government's contention that its prerogative as landowner should always take precedence
over a claim that a particular use of federal property infringes religious practices.
Attempting to justify this rule, the Court argues that the First Amendment bars only
outright prohibitions, indirect coercion, and penalties on the free exercise of religion.
All other "incidental effects of government programs," it concludes, even those "which
may make it more difficult to practice certain religions but which have no tendency
to coerce individuals into acting contrary to their religious beliefs," simply do
not give rise to constitutional concerns. See ante, at 450. Since our recognition
nearly half a century ago that restraints on religious conduct implicate the concerns
of the Free Exercise Clause, see Prince v. Massachusetts, 321 U.S. 158 (1944), we
have never suggested that the protections of the guarantee are limited to so narrow
a range of governmental burdens. The land-use decision challenged here will restrain
respondents from practicing their religion as surely and as completely as any of the
governmental actions we have struck down in the past, and the Court's efforts simply
to define away respondents' injury [485 U.S. 439, 466] as nonconstitutional are both
unjustified and ultimately unpersuasive.
A
The Court ostensibly finds support for its narrow formulation of religious burdens
in our decisions in Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987),
Thomas v. Review Bd., Indiana Employment Security Division, 450 U.S. 707 (1981), and
Sherbert v. Verner, 374 U.S. 398 (1963). In those cases, the laws at issue forced
individuals to choose between adhering to specific religious tenets and forfeiting
unemployment benefits on the one hand, and accepting work repugnant to their religious
beliefs on the other. The religions involved, therefore, lent themselves to the coercion
analysis the Court espouses today, for they proscribed certain conduct such as munitions
work (Thomas) or working on Saturdays (Sherbert, Hobbie) that the unemployment benefits
laws effectively compelled. In sustaining the challenges to these laws, however, we
nowhere suggested that such coercive compulsion exhausted the range of religious burdens
recognized under the Free Exercise Clause.
Indeed, in Wisconsin v. Yoder, 406 U.S. 205 (1972), we struck down a state compulsory
school attendance law on free exercise grounds not so much because of the affirmative
coercion the law exerted on individual religious practitioners, but because of "the
impact that compulsory high school attendance could have on the continued survival
of Amish communities." Id., at 209 (emphasis added). Like respondents here, the Amish
view life as pervasively religious and their faith accordingly dictates their entire
lifestyle. See id., at 210. Detailed as their religious rules are, however, the parents
in Yoder did not argue that their religion expressly proscribed public education beyond
the eighth grade; rather, they objected to the law because "the values . . . of the
modern secondary school are in sharp conflict with the fundamental mode of life mandated
by the Amish religion." Id., at 217 (emphasis added). By exposing Amish children "to
a [485 U.S. 439, 467] `worldly' influence in conflict with their beliefs," and by
removing those children "from their community, physically and emotionally, during
the crucial and formative adolescent period of life" when Amish beliefs are inculcated,
id., at 211, the compulsory school law posed "a very real threat of undermining the
Amish community and religious practice." Id., at 218. Admittedly, this threat arose
from the compulsory nature of the law at issue, but it was the "impact" on religious
practice itself, not the source of that impact, that led us to invalidate the law.
I thus cannot accept the Court's premise that the form of the government's restraint
on religious practice, rather than its effect, controls our constitutional analysis.
Respondents here have demonstrated that construction of the G-O road will completely
frustrate the practice of their religion, for as the lower courts found, the proposed
logging and construction activities will virtually destroy respondents' religion,
and will therefore necessarily force them into abandoning those practices altogether.
Indeed, the Government's proposed activities will restrain religious practice to a
far greater degree here than in any of the cases cited by the Court today. None of
the religious adherents in Hobbie, Thomas, and Sherbert, for example, claimed or could
have claimed that the denial of unemployment benefits rendered the practice of their
religions impossible; at most, the challenged laws made those practices more expensive.
Here, in stark contrast, respondents have claimed - and proved - that the desecration
of the high country will prevent religious leaders from attaining the religious power
or medicine indispensable to the success of virtually all their rituals and ceremonies.
Similarly, in Yoder the compulsory school law threatened to "undermin[e] the Amish
community and religious practice," and thus to force adherents to "abandon belief
. . . or . . . to migrate to some other and more tolerant region." 406 U.S., at 218
. Here the threat posed by the desecration of sacred lands that are indisputably essential
to [485 U.S. 439, 468] respondents' religious practices is both more direct and more
substantial than that raised by a compulsory school law that simply exposed Amish
children to an alien value system. And of course respondents here do not even have
the option, however unattractive it might be, of migrating to more hospitable locales;
the site-specific nature of their belief system renders it nontransportable.
Ultimately, the Court's coercion test turns on a distinction between governmental
actions that compel affirmative conduct inconsistent with religious belief, and those
governmental actions that prevent conduct consistent with religious belief. In my
view, such a distinction is without constitutional significance. The crucial word
in the constitutional text, as the Court itself acknowledges, is "prohibit," see ante,
at 451, a comprehensive term that in no way suggests that the intended protection
is aimed only at governmental actions that coerce affirmative conduct. 4 Nor does
the Court's distinction comport with the principles animating the constitutional guarantee:
religious freedom is threatened no less by governmental action that makes the practice
of one's chosen faith impossible than by governmental programs that pressure one to
engage in conduct inconsistent with religious beliefs. The Court attempts to explain
the line it draws by arguing that the protections of the Free Exercise Clause "cannot
depend on measuring the effects of a governmental action on a religious objector's
spiritual development," ibid., [485 U.S. 439, 469] for in a society as diverse as
ours, the Government cannot help but offend the "religious needs and desires" of some
citizens. Ante, at 452. While I agree that governmental action that simply offends
religious sensibilities may not be challenged under the Clause, we have recognized
that laws that affect spiritual development by impeding the integration of children
into the religious community or by increasing the expense of adherence to religious
principles - in short, laws that frustrate or inhibit religious practice - trigger
the protections of the constitutional guarantee. Both common sense and our prior cases
teach us, therefore, that governmental action that makes the practice of a given faith
more difficult necessarily penalizes that practice and thereby tends to prevent adherence
to religious belief. The harm to the practitioners is the same regardless of the manner
in which the government restrains their religious expression, and the Court's fear
that an "effects" test will permit religious adherents to challenge governmental actions
they merely find "offensive" in no way justifies its refusal to recognize the constitutional
injury citizens suffer when governmental action not only offends but actually restrains
their religious practices. Here, respondents have demonstrated that the Government's
proposed activities will completely prevent them from practicing their religion, and
such a showing, no less than those made out in Hobbie, Thomas, Sherbert, and Yoder,
entitles them to the protections of the Free Exercise Clause.
B
Nor can I agree with the Court's assertion that respondents' constitutional claim
is foreclosed by our decision in Bowen v. Roy, 476 U.S. 693 (1986). There, applicants
for certain welfare benefits objected to the use of a Social Security number in connection
with the administration of their 2-year-old daughter's application for benefits, contending
that such use would "rob the [child's] spirit" and thus interfere with her spiritual
development. In rejecting that challenge, [485 U.S. 439, 470] we stated that "[t]he
Free Exercise Clause simply cannot be understood to require the Government to conduct
its own internal affairs in ways that comport with the religious beliefs of particular
citizens." Id., at 699 (emphasis added); see also id., at 716-717 (STEVENS, J., concurring
in part) ("[T]he Free Exercise Clause does not give an individual the right to dictate
the Government's method of recordkeeping"). Accordingly, we explained that Roy could
"no more prevail on his religious objection to the Government's use of a Social Security
number for his daughter than he could on a sincere religious objection to the size
or color of the Government's filing cabinets. The Free Exercise Clause affords an
individual protection from certain forms of governmental compulsion; it does not afford
an individual a right to dictate the conduct of the Government's internal procedures."
Id., at 700 (emphasis added).
Today the Court professes an inability to differentiate Roy from the present case,
suggesting that "[t]he building of a road or the harvesting of timber on publicly
owned land cannot meaningfully be distinguished from the use of a Social Security
number." Ante, at 449. I find this inability altogether remarkable. In Roy, we repeatedly
stressed the "internal" nature of the Government practice at issue: noting that Roy
objected to "the widespread use of the social security number by the federal or state
governments in their computer systems," 476 U.S., at 697 (citation omitted; internal
quotation marks omitted; emphasis added), we likened the use of such recordkeeping
numbers to decisions concerning the purchase of office equipment. When the Government
processes information, of course, it acts in a purely internal manner, and any free
exercise challenge to such internal recordkeeping in effect seeks to dictate how the
Government conducts its own affairs.
Federal land-use decisions, by contrast, are likely to have substantial external
effects that government decisions concerning [485 U.S. 439, 471] office furniture
and information storage obviously will not, and they are correspondingly subject to
public scrutiny and public challenge in a host of ways that office equipment purchases
are not. 5 Indeed, in the American Indian Religious Freedom Act (AIRFA), 42 U.S.C.
1996, Congress expressly recognized the adverse impact land-use decisions and other
governmental actions frequently have on the site-specific religious practices of Native
Americans, and the Act accordingly directs agencies to consult with Native American
religious leaders before taking actions that might impair those practices. Although
I agree that the Act does not create any judicially enforceable rights, see ante,
at 455, the absence of any private right of action in no way undermines the statute's
significance as an express congressional determination that federal land management
decisions are not "internal" Government "procedures," but are instead governmental
actions that can and indeed are likely to burden Native American religious practices.
That such decisions should be subject to constitutional challenge, and potential constitutional
limitations, should hardly come as a surprise.
The Court today, however, ignores Roy's emphasis on the internal nature of the Government
practice at issue there, [485 U.S. 439, 472] and instead construes that case as further
support for the proposition that governmental action that does not coerce conduct
inconsistent with religious faith simply does not implicate the concerns of the Free
Exercise Clause. That such a reading is wholly untenable, however, is demonstrated
by the cruelly surreal result it produces here: governmental action that will virtually
destroy a religion is nevertheless deemed not to "burden" that religion. Moreover,
in AIRFA Congress explicitly acknowledged that federal "policies and regulations"
could and often did "intrud[e] upon [and] interfer[e] with" site-specific Native American
religious ceremonies, Pub. L. 95-341, 92 Stat. 469, and in Roy we recognized that
this Act - "with its emphasis on protecting the freedom to believe, express, and exercise
a religion - accurately identifies the mission of the Free Exercise Clause itself."
476 U.S., at 700 . Ultimately, in Roy we concluded that, however much the Government's
recordkeeping system may have offended Roy's sincere religious sensibilities, he could
not challenge that system under the Free Exercise Clause because the Government's
practice did not "in any degree impair Roy's `freedom to believe, express, and exercise'
his religion." Id., at 700-701 (quoting AIRFA, 42 U.S.C. 1996) (emphasis added). That
determination distinguishes the injury at issue here, which the Court finds so "remarkably
similar" to Roy's, ante, at 456, for respondents have made an uncontroverted showing
that the proposed construction and logging activities will impair their freedom to
exercise their religion in the greatest degree imaginable, and Congress has "accurately
identifie[d]" such injuries as falling within the scope of the Free Exercise Clause.
The Court's reading of Roy, therefore, simply cannot be squared with our endorsement
- in that very same case - of this congressional determination. More important, it
lends no support to the Court's efforts to narrow both the reach and promise of the
Free Exercise Clause itself. [485 U.S. 439, 473]
C
In the final analysis, the Court's refusal to recognize the constitutional dimension
of respondents' injuries stems from its concern that acceptance of respondents' claim
could potentially strip the Government of its ability to manage and use vast tracts
of federal property. See ante, at 452-453. In addition, the nature of respondents'
site-specific religious practices raises the specter of future suits in which Native
Americans seek to exclude all human activity from such areas. Ibid. These concededly
legitimate concerns lie at the very heart of this case, which represents yet another
stress point in the longstanding conflict between two disparate cultures - the dominant
Western culture, which views land in terms of ownership and use, and that of Native
Americans, in which concepts of private property are not only alien, but contrary
to a belief system that holds land sacred. Rather than address this conflict in any
meaningful fashion, however, the Court disclaims all responsibility for balancing
these competing and potentially irreconcilable interests, choosing instead to turn
this difficult task over to the Federal Legislature. Such an abdication is more than
merely indefensible as an institutional matter: by defining respondents' injury as
"nonconstitutional," the Court has effectively bestowed on one party to this conflict
the unilateral authority to resolve all future disputes in its favor, subject only
to the Court's toothless exhortation to be "sensitive" to affected religions. In my
view, however, Native Americans deserve - and the Constitution demands - more than
this.
Prior to today's decision, several Courts of Appeals had attempted to fashion a test
that accommodates the competing "demands" placed on federal property by the two cultures.
Recognizing that the Government normally enjoys plenary authority over federal lands,
the Courts of Appeals required Native Americans to demonstrate that any land-use decisions
they challenged involved lands that were "central" or "indispensable" to their religious
practices. See, e. g., Northwest [485 U.S. 439, 474] Indian Cemetery Protective Assn.
v. Peterson, 795 F.2d 688 (CA9 1986) (case below); Wilson v. Block, 228 U.S. App.
D.C. 166, 708 F.2d 735, cert. denied, 464 U.S. 956 (1983); Badoni v. Higginson, 638
F.2d 172 (CA10 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. TVA, 620 F.2d
1159 (CA6), cert. denied, 449 U.S. 953 (1980); Crow v. Gullet, 541 F. Supp. 785 (SD
1982), aff'd, 706 F.2d 856 (CA8), cert. denied, 464 U.S. 977 (1983). Although this
requirement limits the potential number of free exercise claims that might be brought
to federal land management decisions, and thus forestalls the possibility that the
Government will find itself ensnared in a host of Lilliputian lawsuits, it has been
criticized as inherently ethnocentric, for it incorrectly assumes that Native American
belief systems ascribe religious significance to land in a traditionally Western hierarchical
manner. See Michaelsen, American Indian Religious Freedom Litigation: Promise and
Perils, 3 J. Law & Rel. 47 (1985); Pepper, Conundrum of the Free Exercise Clause -
Some Reflections on Recent Cases, 9 N. Ky. L. Rev. 265, 283-284 (1982). It is frequently
the case in constitutional litigation, however, that courts are called upon to balance
interests that are not readily translated into rough equivalents. At their most absolute,
the competing claims that both the Government and Native Americans assert in federal
land are fundamentally incompatible, and unless they are tempered by compromise, mutual
accommodation will remain impossible.
I believe it appropriate, therefore, to require some showing of "centrality" before
the Government can be required either to come forward with a compelling justification
for its proposed use of federal land or to forgo that use altogether. "Centrality,"
however, should not be equated with the survival or extinction of the religion itself.
In Yoder, for example, we treated the objection to the compulsory school attendance
of adolescents as "central" to the Amish faith even though such attendance did not
prevent or otherwise render the practice of that religion impossible, and instead
simply [485 U.S. 439, 475] threatened to "undermine" that faith. Because of their
perceptions of and relationship with the natural world, Native Americans consider
all land sacred. Nevertheless, the Theodoratus Report reveals that respondents here
deemed certain lands more powerful and more directly related to their religious practices
than others. Thus, in my view, while Native Americans need not demonstrate, as respondents
did here, that the Government's land-use decision will assuredly eradicate their faith,
I do not think it is enough to allege simply that the land in question is held sacred.
Rather, adherents challenging a proposed use of federal land should be required to
show that the decision poses a substantial and realistic threat of frustrating their
religious practices. Once such a showing is made, the burden should shift to the Government
to come forward with a compelling state interest sufficient to justify the infringement
of those practices.
The Court today suggests that such an approach would place courts in the untenable
position of deciding which practices and beliefs are "central" to a given faith and
which are not, and invites the prospect of judges advising some religious adherents
that they "misunderstand their own religious beliefs." Ante, at 458. In fact, however,
courts need not undertake any such inquiries: like all other religious adherents,
Native Americans would be the arbiters of which practices are central to their faith,
subject only to the normal requirement that their claims be genuine and sincere. The
question for the courts, then, is not whether the Native American claimants understand
their own religion, but rather whether they have discharged their burden of demonstrating,
as the Amish did with respect to the compulsory school law in Yoder, that the land-use
decision poses a substantial and realistic threat of undermining or frustrating their
religious practices. Ironically, the Court's apparent solicitude for the integrity
of religious belief and its desire to forestall the possibility that courts might
second-guess the [485 U.S. 439, 476] claims of religious adherents leads to far greater
inequities than those the Court postulates: today's ruling sacrifices a religion at
least as old as the Nation itself, along with the spiritual well-being of its approximately
5,000 adherents, so that the Forest Service can build a 6-mile segment of road that
two lower courts found had only the most marginal and speculative utility, both to
the Government itself and to the private lumber interests that might conceivably use
it.
Similarly, the Court's concern that the claims of Native Americans will place "religious
servitudes" upon vast tracts of federal property cannot justify its refusal to recognize
the constitutional injury respondents will suffer here. It is true, as the Court notes,
that respondents' religious use of the high country requires privacy and solitude.
The fact remains, however, that respondents have never asked the Forest Service to
exclude others from the area. Should respondents or any other group seek to force
the Government to protect their religious practices from the interference of private
parties, such a demand would implicate not only the concerns of the Free Exercise
Clause, but also those of the Establishment Clause as well. That case, however, is
most assuredly not before us today, and in any event cannot justify the Court's refusal
to acknowledge that the injuries respondents will suffer as a result of the Government's
proposed activities are sufficient to state a constitutional cause of action.
III
Today, the Court holds that a federal land-use decision that promises to destroy
an entire religion does not burden the practice of that faith in a manner recognized
by the Free Exercise Clause. Having thus stripped respondents and all other Native
Americans of any constitutional protection against perhaps the most serious threat
to their age-old religious practices, and indeed to their entire way of life, the
Court assures us that nothing in its decision "should be read to encourage governmental
insensitivity to the religious [485 U.S. 439, 477] needs of any citizen." Ante, at
453. I find it difficult, however, to imagine conduct more insensitive to religious
needs than the Government's determination to build a marginally useful road in the
face of uncontradicted evidence that the road will render the practice of respondents'
religion impossible. Nor do I believe that respondents will derive any solace from
the knowledge that although the practice of their religion will become "more difficult"
as a result of the Government's actions, they remain free to maintain their religious
beliefs. Given today's ruling, that freedom amounts to nothing more than the right
to believe that their religion will be destroyed. The safeguarding of such a hollow
freedom not only makes a mockery of the "`policy of the United States to protect and
preserve for American Indians their inherent right of freedom to believe, express,
and exercise the[ir] traditional religions,'" ante, at 454 (quoting AIRFA), it fails
utterly to accord with the dictates of the First Amendment.
I dissent.
Footnotes
[ Footnote 1 ] Respondent Indians were joined in this suit by the State of California
as well as various environmental groups. For the sake of simplicity, I use the term
"respondents" to refer exclusively to the affected Native American religious practitioners.
[ Footnote 2 ] The Court overlooks this finding when it suggests that the only protective
measure the Service did not take was the untenable one of "abandoning its project
entirely, and thereby leaving the two existing segments of road to dead-end in the
middle of a National Forest." Ante, at 454. Far from finding that option untenable,
the District Court expressly concluded that the segments had independent economic
and administrative utility, and thus that past investments in the paved sections did
not justify construction of the Chimney Rock segment. See 565 F. Supp., at 596.
[ Footnote 3 ] Remarkably, the Court treats this factual determination as nothing
more than an assumption or "prediction," ante, at 451, and suggests that it is "less
than certain that construction of the road will be so disruptive that it will doom
[respondents'] religion." Ibid. Such speculation flies in the face of the most basic
principles of appellate review, see Fed. Rule Civ. Proc. 52(a) ("Findings of fact
. . . shall not be set aside unless clearly erroneous"), and is wholly at odds with
the well-settled rule that this Court will not disturb findings of facts agreed upon
by both lower courts unless those findings are clearly in error. United States v.
Ceccolini, 435 U.S. 268, 273 (1978). Even if our review were not governed by such
rules, however, the mere fact that a handful of the Native Americans who reside in
the [485 U.S. 439, 465] affected area do not oppose the road in no way casts doubt
upon the validity of the lower courts' amply supported factual findings, particularly
where the members of this minority did not indicate whether their lack of objection
reflected their assessment of the religious significance of the high country, or their
own apathy towards religious matters generally.
[ Footnote 4 ] The Court is apparently of the view that the term "prohibit" in the
Free Exercise Clause somehow limits the constitutional protection such that it cannot
possibly be understood to reach "`any form of government action that frustrates or
inhibits religious practice.'" Ante, at 456 (quoting supra, at 459) (emphasis added
by majority). Although the dictionary is hardly the final word on the meaning of constitutional
language, it is noteworthy that Webster's includes, as one of the two accepted definitions
of "prohibit," "to prevent from doing something." Webster's Ninth New Collegiate Dictionary
940 (1983). Government action that frustrates or inhibits religious practice fits
far more comfortably within this definition than does the Court's affirmative compulsion
test.
[ Footnote 5 ] Thus, for example, agencies proposing to use or permit activities
on federal lands must comply with various public notice, consultation, and impact
evaluation requirements imposed by the National Historic Preservation Act, 16 U.S.C.
470f, 470h-2(f); the Archaeological Resources Protection Act, 16 U.S.C. 470aa et seq.;
the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Wilderness
Act, 16 U.S.C. 1131 et seq.; and the Federal Water Pollution Control Act, 33 U.S.C.
1251 et seq. Concededly, these statutes protect interests in addition to the religious
interests Native Americans may have in a pristine environment, and of course the constitutional
protection afforded those religious interests is not dependent upon these congressional
enactments. Nevertheless, the laws stand as evidence, if indeed any were needed, that
federal land-use decisions are fundamentally different from government decisions concerning
information management, and that, under Roy, this difference in external effects is
of constitutional magnitude. [485 U.S. 439, 478]