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Therefore, the tribes had the quaint idea that the federal government could not cause a religion to cease to exist. So they challenged the Forest Service's decision. And when they failed to get relief, they, in the great American tradition, brought a lawsuit, claiming violation of their First Amendment rights. The lawsuit reached the Supreme Court and, in due course, they lost. The court informed the tribes that this decision by the Forest Service had to be challenged, if at all, through the democratic process and not through the judicial process. Of course, the tribes' whole point was that they had tried the democratic process, and it did not work. Furthermore, the court went on to say, in a version of language it would repeat again and again in other cases, that the government simply could not exist if it had to meet the religious needs of all of its citizens. Now this, of course, had the tribes' argument backwards.

The tribes, in the great conservative tradition, wanted government to get out of their way and let them meet their own religious needs. But the court almost willfully misunderstood this. The court's point, I think, pursued the following logic: It is perfectly all right for the government to make it hard or impossible for you to practice your religion, as long as you cannot prove governmental hostility to your religion. As long as government officials can rationalize their actions based on inadvertence, carelessness, ignorance, or a studied indifference, they can proceed. There are a vast number of similar cases. In most of them, the plaintiff loses; and disproportionately in those cases, the plaintiffs, like the Indian tribes, are members of "outsider" religions, not part of the American mainstream.

In 1993 Congress adopted the Religious Freedom Restoration Act. There was much debate over whether this act would actually change the course of these cases. Interestingly enough, Congress expressly mentioned the Lyng case, about the Indian tribes and deforestation, as one of the cases it did not want to overturn. Nevertheless, the act was adopted with great to-do and was heralded as the fixer of problems involving religious freedom. But in 1997 the Supreme Court held that statute unconstitutional.

The point of the example is not about a statute. It is about an attitude: If your way of being religious is recognizably like the way in which the larger culture views religion, you can have a robust religious freedom. If, however, your way of practicing your religion is very different and especially very threatening to the way in which the larger culture practices religion, you will have a much harder time.

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June 12 2000, Vol. 44, No. 7