Minority Report: The Endorsement Test and Native American Religions on Federal Lands

Michelle B. Langford

Volume 1 - Spring 2003


     What if you practiced a traditional Native American religion? In the past, the federal government seized your sacred sites and turned them into recreational destinations for tourists. Visitors now litter and vandalize the sites, behave disrespectfully while you try to pray or hold services, and even stand on your equivalent of an altar. But what if you practiced a New Age religion that also reveres some of these Native American sacred sites, albeit in a different manner? Out of respect for Native American beliefs, you might be prohibited by a federal agency from worshipping at a site that you hold sacred. How should federal land managers balance the competing religious, commercial, environmental, and recreational interests that seek to use federal lands, while also complying with the United States Constitution?
     Motivated by concerns that their decisions were having a negative impact on Native American religious practices, federal land managers have addressed the acute problems that face practitioners of Native American religions by providing them with limited accommodations. Some National Park and Forest Service accommodations have prompted constitutional challenges under the Establishment Clause of the First Amendment. However, the Establishment Clause only provides half of the constitutional picture.
     The First Amendment of the United States Constitution protects the religious liberty of every citizen with two mutually supporting clauses. The Free Exercise Clause protects religious adherents or nonbelievers from government action that either singles them out for discrimination or burdens their religious practices. The Establishment Clause prohibits the government from favoring or promoting religion. Until recently, the test set out in Lemon v. Kurtzman, known as the Lemon test, controlled Establishment Clause jurisprudence. In Lynch v. Donnelly, Justice O'Connor suggested a modified interpretation of the Lemon test, and her interpretation became known as the endorsement test.
     This Note will show, through a case study of Native American religious sites on federal lands, that the endorsement test protects disfavored and minority religions from judicial prejudice or misunderstanding better than exclusive use of the Lemon test. Some commentators have suggested that the endorsement test primarily favors majority religions. However, the endorsement test provides two significant benefits to minority religions. If the test is applied in the manner that Justice O'Connor suggests, judicial opinions will be based on an informed understanding of the religion and religious practices in question, and the courts will thoroughly consider all effects of the government action. The debate is not settled as to which constitutional test is the best one to use when analyzing cases that deal with the Establishment Clause. However, the endorsement test proposed by Justice O'Connor protects accommodations to disfavored or minority religions from being declared unconstitutional for improper reasons, such as prejudice or misunderstanding.
     The first section will introduce the issues surrounding the practice of Native American religions on federal lands, and the second section will discuss modern Establishment Clause jurisprudence and the endorsement test. The third section will examine how the factors included in the endorsement test apply to Native American religions. The fourth section will demonstrate that Justice O'Connor's endorsement test directs the courts to examine history, context, and all secular purposes for the accommodation. The fifth section will show that use of the endorsement test by the courts gives federal agencies greater discretion to accommodate minority religions in a constitutionally permissible manner.
Cite as: 1 First Amend. L. Rev. 119 (2003)
