William Perry Pendley

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.


William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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