Lyng v. Northwest Indian Cemetery Protective Assn.

485 U. S. 439

April 19, 1988

The government wanted to build a road and harvest timber on federal lands that some Indians considered sacred sites integral to their faith.The Indians claimed that this would run afoul with the Free Exercise clause. The government responded that they were neither positively forcing nor coercion the Indians to do anything contrary to their religion. And thus was the issue joined.

The Court ruled 5-3 that the Indians lost (Kennedy did not participate). O’Connor said that the government could not function if it had to worry about every action it took that offended someone’s religious sensibilities. She likened the case to Bowen v. Roy (1986), where someone objected to issuance of Social Security numbers. In both cases, the government had the rights to conduct its own business so long as it didn’t actually target religious groups, or affirmatively compel or prohibit activity. O’Connor also worried that Indians might one day demand that no one but them be allowed to even enter the land, and that this particular slippery slope needed to be stopped right now. Finally, an argument about a statutory law for Indian religious rights was turned away because the law had no teeth.

Brennan, joined by Marshall and Blackmun, dissented vigorously. The government’s plan would essentially destroy the ability of Indians to practice their religion. The real world impact was so dire that it was unfair to blandly assert that nothing had been positively compelled or prohibited. He said that Yoder required courts to consider the impact of an action on religious groups, and was flabbergasted that the Court could not distinguish Roy. Issuing a number for internal use in Washington was very different from actually desecrating a sacred site. Brennan concluded that the government had a duty to ask if its action would strike at the central tenets of a religious faith.

So here it is: the first major battle in the great Free Exercise war that rages to this day. Come for the novelty of seeing the liberals stand up for religious freedom; stay for the mind bending philosophical questions that are raised. A few years ago, I sort of naively believed that perfect religious neutrality was mostly possible, with the government accommodating most claims like this one. Now, I’m more seeing that any nation is always going to have a reigning theology, and that rival theologies will inevitably be kept down.

In the Bible, it is shown as perfectly normal for a nation to say that one god is true, and other gods are false, and govern accordingly. Good kings like Hezekiah and Josiah were right to eliminate public practices directed toward other gods. And even America does the same thing today – which is why it’s social suicide to speak against things like democracy, liberty, self-determination, and separation of church and state. These things are part of our national theology. I support robust Free Exercise rights as long as Christians can practice their faith and potentially gain power. But broad Free Exercise governance is not a sustainable model for the long run.

Gary North had it right: “So let us be blunt about it: We must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will be get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”


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