jcatron@bdm.com (Jolene Catron) writes:
> I read ... that U.S. District Judge William Downes
> blocked a ban by the National Park Service against commercial-guided
> climbing groups at Devils Tower National Monument...
> According to the judge, this ban amounted to "unconstitutional
> government support of religion" in violation of the First Amendment...
>
> ...Now I am confused. Can someone out there who understands and can
> explain in layman's terms how a Federal judge can rule directly against a
> Federal Executive Order? What is the relationship of an EO to the First
> Amendment? Is my perception of this totally mixed up?
We are dealing with questions of the sources of law. President Clinton's
executive order provides direction to Federal agencies; it is based on his
power as their boss. The Constitution provides direction to us all,
including to the President and to the Judges.
The First Amendment provides, from memory as near as I can, that Congress
shall make no law establishing a religion nor prohibiting the free exercise
thereof. This Amendment has been interpreted by the Courts to prohibit any
government action establishing a religion or impairing the exercise of one.
Government is supposed to be neutral in matters of religion.
Since the earliest days of the U.S. government, it has been the law that
the Courts are entitled to determine whether or not a law or an executive
action is ok or not ok when measured against the Constitution. The Courts
cannot second guess the wisdom or correctness of a policy as a matter of
the business of the government, that is, whether the law makes sense; but
when the court finds that the law violates the Constitution, it can in
essence declare the law void. It isn't illegal for government to be stupid,
but it is illegal for government to be unconstitutional.
The Judge, then, was saying that the order keeping commercial climbers off
the Tower was a violation of the U.S. Constitution, because the order in
application was an order to 'establish' Native American relgion. The matter
should be appealed, because that is not the only way of looking at the
matter. Six days is not a lot of time, however. The order should be
presented to the appeals court as an effort to avoid prohibiting the free
exercise of Native American religion, that is, government 'action' in
leaving the Mountain open would tend to prohibit the free exercise of
religion.
THe problem is that under the law the federal public lands are open to
everyone all the time unless otherwise specially restricted, and generally
speaking special restrictions should not have a religious motive. For
example, the NPS could not establish a day at Devil's Tower for
Fundamentalist Christians only.
Native American religion is not a matter of gathering the people in a large
stone building, called a cathedral, sitting on private property of a church
organization, and devoted to religion. In that case climbing on the
cathedral towers could be prohibited as trespass. If Devil's Tower belonged
to a tribe as a matter of Anglo-American property law, then the climbers
could be kept away as trespassers on private property.
We are once again in the bind that traditioinal understanddings and
Anglo-American property laws don't look alike at all. There would be ways
of working on this, but time is so short...
In sorrow.
And thank you for listening.
K'nenachgistawachtihimmo -- Taubot neannawayean.
Ted (Alappiechsu Muckquashim, Wolf Who Talks Fast)
tedbrtn@cyberhighway.net