General Comments
Comment:
Free Exercise of Religion.
Forty-eight respondents commented that
the proposed rule infringes on the free exercise of religion.
Specifically,
these respondents stated that permits are unconstitutional as applied to
religious activity, citing Shuttlesworth and Cantwell;
that Rainbow Family
Gatherings are protected under the free exercise clause of the United States
Constitution;
that Rainbow Family Gatherings involve the exercise of religion;
that Rainbow Family Gatherings are a religious experience;
that Rainbow
Gatherings provide spiritual growth; that the woods are the Rainbow Family's
church;
that people choose to gather with those of similar religious beliefs in
the cathedral of nature;
that the proposed rule would restrict gatherings for
the purpose of spiritual expression;
that the proposed rule targets those who
go to the forest to worship;
and that, to many, particularly Native Americans,
public land includes sacred ground.
Response.
The final rule does not infringe and is not intended to infringe
upon the free exercise of religion.
Under Shuttlesworth and Cantwell, permits
have been recognized as constitutional restrictions of time, place, and manner
for activities involving the expression of views, including religious
gatherings, when specific and objective standards guide the licensing
authority. 394 U.S. at 150-51, 153; 310 U.S. at 304-05. In Cantwell, the
Supreme Court stated that the regulation of solicitation generally in the
public interest is constitutional where the regulation does not involve any
religious test and does not unreasonably obstruct or delay the collection of
funds, even if the collection is for a religious purpose. The Court held that
this type of regulation does not constitute a prohibited prior restraint or
impose an impermissible burden on the free exercise of religion. Id. at 305.
Similarly, this final rule is a general regulation in the public interest,
does not involve any religious test, and does not unreasonably obstruct or
delay activities subject to the rule. Therefore, the final rule is not open to
any constitutional objection under the Free Exercise Clause of the First
Amendment, even if some of the activities subject to the rule are for a
religious purpose.
Requiring a special use authorization for all group uses of National Forest
System lands does not substantially burden the free exercise of religion and
therefore does not trigger the compelling interest standard under the Religious
Freedom Restoration Act of 1993 (42 U.S.C. 2000bb note).
The Supreme Court has held that the nature of the burden is relevant to the
standard the government must meet to justify the burden. Bowen, Secretary of
Health and Human Serv. v. Roy, 476 U.S. 693, 707 (1986). In cases in which the
Supreme Court has invalidated a governmental action that interfered with an
individual's practice of religion, the Court has relied directly or indirectly
on the coercive nature of the governmental action or regulation and the
imposition of penalties on the free exercise of religion. See, e.g., Thomas v.
Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 716-17 (1991) (denial
of unemployment benefits to applicant whose religion forbade him to fabricate
weapons); Wisconsin v. Yoder, 406 U.S. 205, 218-19 (1972) (enforcement of
compulsory high school attendance law against Amish, in violation of their
religion and way of life); Sherbert v. Verner, 374 U.S. 398, 403-06 (1963)
(denial of unemployment compensation benefits to applicant who refused to
accept work requiring her to violate the Sabbath). In these cases, the
governmental action or legislation criminalized religiously inspired activity
or inescapably compelled conduct that some find objectionable for religious
reasons.
In contrast, the Supreme Court has upheld governmental action or regulation
that indirectly and incidentally imposes a burden on the practice of religious
beliefs or calls for a choice between securing a governmental benefit and
adherence to religious beliefs. See, e.g., Roy, 476 U.S. at 707-08 (federal
statute requiring states in administering certain welfare programs to use
Social Security numbers, where use of these numbers violated Native American
applicants' religious beliefs); Hamilton v. Regents of University of
California, 293 U.S. 245, 262-65 (1934) (curriculum in state university
requiring all students to take military courses, where some students sought
exclusion from those courses on grounds of their religious beliefs and
conscientious objections to war). In these cases, the challenged governmental
action interfered significantly with the ability of private persons to pursue
spiritual fulfillment according to their own religious beliefs. In none of
these cases, however, were the affected individuals coerced by the
government's action into violating their religious beliefs, nor did the
governmental action penalize religious activity by denying any person an equal
share of the rights, benefits, and privileges enjoyed by other citizens. Roy,
476 U.S. at 703. Under these cases, absent proof of an intent to discriminate
against particular religious beliefs or against religion in general, the
government meets its burden when it demonstrates that a challenged requirement
for governmental benefits, neutral and uniform in its application, is a
reasonable means of promoting a legitimate public interest. Id. at 707-08.
Like the governmental action in Hamilton and Roy, this final rule has no
direct or indirect tendency to coerce individuals into acting contrary to their
religious beliefs. Nothing in the final rule suggests antagonism by the
Department towards religion generally or towards any particular religious
beliefs. The special use authorization requirement for group uses is facially
neutral and applies to all types of these activities. The Department has made
no provisions for individual exemptions to this requirement. Moreover, the
requirement is a reasonable means of promoting the legitimate public interests
of resource protection, allocation of space in the face of increasing
competition for the use of National Forest System lands, and promotion of
public health and safety.
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