Pat Powers has legal objections to the governor's prosed "buffer zone" around Bear Butte. I file a concurring opinion to my colleague's post. I have no doubt this action should pass Constitutional muster, but I am not as sure as my colleague that it would get a pass as I put nothing past the Supreme Court when it comes to Establishment Clause jurisprudence.
Like Lawyer Epp, I think the state stands on firmer ground arguing this is being done for historic and 
cultural reasons, not for reasons having to do with sacred ground. There is precedent for zoning "buffer zones" around places such as churches, but not specifically around churches or a particular church.
Todd's St. Joseph's Cathedral example would run into problems with the "secular purpose" prong of the Lemon Test (granted, it isn't clear these days what the Court thinks of the Lemon Test). The purpose of the law cannot be to benefit a church (or a sacred site). There must be secular reasons for the law. Similarly, in the Kiryas Joel case New York State tried to carve a school district out of a community made up mostly of Satmar Hasidic Jews. The Court struck down the law on Establishment grounds. This was too much "accommodation" for one specific religious group.
Mr. Powers is correct to point to the Blaine Amendment language in the South Dakota Constitution that prohibits any public dollars going to religious societies or institutions. This project may run more afoul with the South Dakota Constitution than the First Amendment of our national Constitution. Perhaps just one more reason to repeal the Blaine Amendment.
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