NINTH CIRCUIT BARS CHRISTIAN, BUT NOT PAGAN, WORSHIP
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by William Perry Pendley
October 1, 2004On May 12, 2004, an attorney for Dale McKinnon appeared before the U.S. Court of Appeals for the Ninth Circuit. He was seeking to reverse a decision by a federal district court in Arizona that upheld the constitutionality of a regulation adopted by the Arizona Department of Transportation (ADOT) that barred McKinnon from using aggregate from his private property in state construction projects. In McKinnon’s view, what the ADOT had done to him, injuring his ability both to stay in business and to provide for his family, was unconstitutional because the ADOT had placed his land off limits in response to demands by American Indians who say his property is “sacred” to them!
Back in 1990, McKinnon had leased and then bought Woodruff Butte, near Holbrook in east central Arizona. He bought Woodruff Butte because its aggregate is the best in the region, maybe even in all of Arizona, due to its high density and low porosity, which yield great concrete strength while using less oil in the paving process. Prime contractors, those who build Arizona’s bridges, streets, and highways, were eager to use McKinnon’s aggregate.
Operating as Cholla Ready Mix, McKinnon obtained a commercial source permit from the ADOT so prime contractors could include his aggregate in their bids. But then the Hopi, Navajo, and Zuni asserted that McKinnon’s rock pile was sacred. A lawsuit soon followed, then years of harassment by state and federal officials. Finally, in January 2001, the ADOT revoked McKinnon’s commercial source permit and barred him from obtaining a new one. In June 2002, McKinnon sued.
However, in January 2003, an Arizona federal district court dismissed McKinnon’s lawsuit, ruling that the regulation that the ADOT claimed barred the use of Woodruff Butte referred to “historical” and “cultural” not “religious” matters; therefore, it was constitutional. McKinnon countered that he was challenging the regulation not “facially” but “as applied” to him due to the fact that the sole reason the ADOT barred use of his land was, not because it had “historical” significance or held “cultural” artifacts but, because Indians considered it “sacred.” The court rejected McKinnon’s motion for reconsideration. McKinnon appealed.
Before a three-judge panel of the Ninth Circuit, McKinnon’s attorney argued that the ADOT violated the Constitution’s Establishment Clause because Arizona required McKinnon, and everyone else in Arizona, to adhere to the “religious orthodoxy” of American Indians, an orthodoxy that, because Woodruff Butte is “sacred,” bars its use. This is hardly the neutrality the Constitution requires when governments address matters of religion. Moreover, said McKinnon’s attorney, the ADOT’s action would be unconstitutional even if the ADOT had closed state-owned land; closing “sacred” private property is, if possible, even more unconstitutional.
A month after McKinnon’s oral arguments, the Ninth Circuit ruled in another case involving religion and land use. Ordering the removal of a Latin cross, which memorialized the veterans who died in World War I, from the National Park Service’s Mohave National Preserve, the Ninth Circuit held, “[T]he Establishment Clause [means] government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” The ADOT’s preferential treatment of American Indian religion seemed doomed.
Nonetheless, on September 1, the Ninth Circuit dismissed McKinnon’s lawsuit as “premised on flawed analysis of the [Establishment Clause].” The Ninth Circuit did not just dismiss McKinnon’s case, it issued a broad, published ruling that bars any challenge to the preferential treatment of American Indian religion: “[T]he Establishment Clause does not bar the government from protecting an historically and culturally important site simply because the site’s importance derives at least in part from its sacredness to certain groups.” Curiously, the historical and cultural importance of the Latin cross in the California desert was irrelevant to whether its presence violated the Establishment Clause.
Dale McKinnon has appealed. Meanwhile, however, the Ninth Circuit’s two most recent rulings provide that governments may endorse paganism, but not Christianity.
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