In 2004, within four months of each other, two three-judge panels of the U.S. Court of Appeals for the Ninth Circuit decided cases involving the Constitution's Establishment Clause and its requirement of government neutrality regarding religion. In May, a panel held that a Latin cross on federal lands in honor of American servicemen killed in World War I violated the Establishment Clause and must be removed. That the memorial commemorated American "history and culture" was irrelevant to the panel; after all, the cross symbolizes Christianity.

In September, another panel held that Arizona's designation of private property as sacred to American Indian religious practitioners and off-limits to use by its owner did not violate the Establishment Clause. Because American Indians' religion, said the panel, is intertwined with their history and culture, governmental action supporting their religion is constitutional.

In February, the Ninth Circuit was asked, during oral arguments in San Francisco, to decide between these conflicting interpretations of the Establishment Clause. That is, does the Establishment Clause, which has been interpreted for nearly four decades as barring Judeo-Christian religion from the "public square," notwithstanding its 4,000 year history and culture, apply to American Indian religious practitioners; or is American Indian religion uniquely exempt from the Establishment Clause.

Last month, in The Access Fund v. U.S. Department of Agriculture, the Ninth Circuit ruled that the Establishment Clause did not bar the U.S. Forest Service from closing Cave Rock, on Nevada's Lake Tahoe, to recreational climbing because, for 1500 years, Cave Rock has been "the most religious feature within the Washoe religion" and a key part of the Washoe Tribe's "mythology," "cosmology," and culture.

The panel discussed, at length, Washoe religious beliefs, including that Cave Rock is akin to a church and is to be avoided by all but religious practitioners who "seek power or knowledge..." The panel also commented briefly on Cave Rock's archeology, discussed Cave Rock's history as a transportation corridor, and set forth the record of rock climbing at Cave Rock. The panel concluded by noting that the Washoe view rock climbing as a desecration and much worse than the traffic that roars through the two tunnels blasted through the rock itself.

The Forest Service's deference to these religious concerns is not unconstitutional, held the panel, because the Washoe history, culture, and religion are intertwined. Moreover, the climbers failed to show that the Forest Service would not protect sites of "historical, cultural, and religious importance to other groups." Finally, a religious site may be set aside for practitioners if it is also arguably historically and culturally significant. In so ruling, the panel relied on the Ninth Circuit's 2004 decision upholding the closure of a privately owned gravel pit in Arizona because the Navajo, Hopi, and Zuni regard the site as sacred.

The Ninth Circuit's ruling conflicts most directly with a 1988 U.S. Supreme Court ruling; in Lyng v. Northwest Indian Cemetery Protective Ass'n, the Court rejected the demands by three American Indian Tribes in northwestern California that portions of the national forest historically and culturally used by them for religious purposes be closed. Even without Lyng, Establishment Clause jurisprudence makes clear that the Forest Service's Cave Rock decision runs afoul of every traditional Establishment Clause test, because the Forest Service's action "advances," "endorses," and "entangles it with" American Indian religion.

By agreeing with American Indians that Cave Rock is sacred and by rejecting the view of climbers that it is not, the Forest Service, as one landmark Supreme Court ruling puts it, "conveys a message of endorsement," informing American Indian religious practitioners that they are "insiders" and the climbers that they are "outsiders." Indeed, the Forest Service is not demanding that non-Indians simply "respect" American Indian religion; it is, in the Court's words, "employ[ing] the machinery of the state to enforce [Washoe] religious orthodoxy."

Now it is up to the Supreme Court to decide if the Ninth Circuit is right!