Bear Butte Buffer Zone and the First Amendment

My Keloland Colleague Pat Powers blogs on Governor Round's proposal to create a buffer zone around Bear Butte, in Western South Dakota.  The buffer zone is intended to protect that site, sacred to Native Americans, from commercial development.  This would require considerable public funds.  From the Rapid City Weekly News:

Rounds wants to blend $250,000 in state funds with $900,000 in federal and private dollars to obtain the easements.

Pat raises some very legitimate questions about public financing for this purpose. 

I think I’m a bit confused as to how it is the place of government to create a buffer zone limiting the property rights for religious reasons. Certainly I have no problem with property owners if they decide to agree to it. But it’s the source of the funds that make me squirm a little. Given that the funds are being proposed to protect “a sacred site,” it seems uncomfortably close to standing in opposition to the First Amendment.

There are two uses of government powers here that are in question: the power to spend for certain purposes, and the power to force land owners to give up some of their rights for those same purposes.  In this case the purpose is to protect the use of the site for religious reasons.  I agree with Pat that both of these exercise of public powers raise establishment clause questions. 

The Establishment Clause, with which the First Amendment to the U.S. Constitution begins, states that "Congress shall make no law respecting an establishment of religion..." It clearly prohibits Congress and, under Court precedent, the States,  from establishing National or State Churches, or from spending public money for the advancement of religion. It also prevents governments from endorsing religion, though that is a twentieth century innovation by the Courts and would not have been accepted by the Founders.   

I can easily imagine that one of the land owners affected by this policy might challenge it on establishment clause grounds.  However, I expect the Courts would uphold the policy, and I think that they should do so.  It is very difficult to imagine that Governor Round's policy amounts to an endorsement of Native American religion.  The protection of Bear Butte can be justified on two grounds: it enables a minority of our state citizens to freely practice the religion of their choice, and it preserves a site of considerable historical value.  Both grounds are neutral with regard to the First Amendment. 

A cynical observer might wonder whether this is really about religion at all, and not about the control of land by an organized minority interest in a state where the latter is a constant issue.  But if so, that is a matter of ordinary politics.  A more relevant question is whether the Courts would allow the State to erect a similar buffer zone around the St. Anthony of Padua Catholic Church in Hoven.  I am guessing that that would be a harder sell, because a Federal Court would be more likely to view it as an endorsement of religion.  But it would be the same principle and ought to be decided the same way.

It is clear that the State of South Dakota is not required to protect Bear Butte either by the free exercise clause or by anything else in the Constitution.  That clause should not grant religious groups special powers or immunities (see Oregon v. Smith).  It is just a nice thing to do.  Christians interested in establishment clause questions should endorse the Governor's proposal.  It creates a precedent that they might find useful in the future.