Access Fund v. United States Department of Agriculture

WALLACE, Circuit Judge,

concurring:

I concur in the result, but write separately because I do not believe that the Lemon test should be applied in analyzing the claim under the Establishment Clause. As the majority points out, recent Supreme Court cases have questioned the continuing validity of the Lemon test. See, e.g., Van Orden v. Perry, 545 U.S. 677, 685-86 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005) (declining to apply the Lemon test); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 319 , 120 S.Ct. 2266 , 147 L.Ed.2d 295 (2000) (Rehnquist, C.J., dissenting) (“Lemon has had a checkered career in the decisional law of this Court”); Hunt v. McNair, 413 U.S. 734, 741 , 93 S.Ct. 2868 , 37 L.Ed.2d 923 (1973) (the Lemon factors serve as “no more than helpful signposts”); Zelman v. Simmons-Harris, 536 U.S. 639 , 122 S.Ct. 2460 , 153 L.Ed.2d 604 (2002) (declining to apply the Lemon test). I do not believe that the Lemon test is helpful under the circumstances of this case, and would follow Van Orden instead.

In Van Orden , the Supreme Court addressed whether the placement of a Ten Commandments monument on the Texas State Capitol grounds violated the Establishment Clause. 545 U.S. at 681 , 125 S.Ct. 2854 . The plurality opinion recognized “two faces” that must be considered. Id. at 683-85 , 125 S.Ct. 2854 . “One face looks toward the strong role played by religion and religious traditions throughout our Nation’s historyf,]” while the other “looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.” Id. at 683 , 125 S.Ct. 2854 . The plurality opinion further expressed the view that the Establishment Clause does not “bar[ ] any and all governmental preference for religion over irreligión.” Id. at 684 n. 3, 125 S.Ct. 2854 . Instead, determining whether the monument violated the Establishment Clause required an inquiry into both “the nature of the monument and [ ] our Nation’s history.” Id. at 686 , 125 S.Ct. 2854 .

A majority in Van Orden recognized that the Ten Commandments were religious, but found that no Establishment Clause violation occurred. Id. at 690-91 , 125 S.Ct. 2854 ; id. at 700, 704 , 125 S.Ct. 2854 (Breyer, J., concurring). The plurality opinion observed that while the Ten Commandments had religious significance, they also had an undeniable historical *1048 meaning. Id. at 690 , 125 S.Ct. 2854 . The monument had a “dual significance, partaking of both religion and government.” Id. at 692 , 125 S.Ct. 2854 . Further, the placement of the monument on state capí-tol grounds was a more passive use than the posting of the texts in public classrooms, a practice that the Supreme Court had previously held to have violated the First Amendment in Stone v. Graham, 449 U.S. 39 , 101 S.Ct. 192 , 66 L.Ed.2d 199 (1980). Id. at 691-92 , 125 S.Ct. 2854 .

Van Orden is distinct from this case in that it involved a placement of a monument, with religious text. Here, the government did not erect any monument or structure. Instead, Access Fund contends that the government’s ban on rock climbing violates the Establishment Clause. Despite this difference, I believe that the plurality’s analysis in Van Orden is helpful in determining whether an Establishment Clause violation occurred.

As discussed in the majority opinion, Cave Rock is a culturally, historically, and archaeologically significant site. It is a core element of the Washoe people’s culture and a sacred site in the Washoe religion. It is important to the Washoe people’s religious identity, and figures prominently in their religious beliefs. Cave Rock has secular significance as well. It has been the subject of archaeological and ethnographic studies, and has historical significance as a travel corridor.

Access Fund argues that the climbing ban promotes the Washoe religion. Even assuming that this is true, however, merely “promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Id. at 690 , 125 S.Ct. 2854 . Like the monument in Van Orden , the climbing ban has “dual significance”: although it may promote the Washoe religion, it also protects a culturally, historically, and archaeologically significant site. There is “no constitutional requirement which makes it necessary for government to be hostile to religion and throw its weight against efforts to widen the effective scope of religious influence.” Id. at 684 , 125 S.Ct. 2854 (citation and quotations omitted). Under the circumstances, I would hold that the climbing ban does not violate the Establishment Clause of the First Amendment to the Constitution.