The Bald Eagle–Free Exercise Dilemma

09.05.2008

The Associated Press reports that a three-judge panel of the Tenth Circuit Court of Appeals ruled unanimously yesterday that Winslow Friday, a member of the Northern Arapaho tribe in Wyoming, will have to stand trial for shooting and killing a bald eagle for use in a tribal ritual:

The appeals court ruled that American Indians' religious freedoms are not violated by federal law protecting eagles or the government's policy requiring American Indians to get permits to kill the birds.

"Law accommodates religion," the court said in its ruling. "It cannot wholly exempt religion from the reach of the law." ...
The appeals court ... also rejected Friday's argument that the federal Religious Freedom Restitution Act, which prohibits the government from placing undue burdens on religious practices, should block the federal government from prosecuting him for killing the eagle.

The full ruling from the Tenth Circuit is here (pdf), written by widely respected First Amendment scholar Michael McConnell.

--Josh Patashnik

Posted: Friday, May 09, 2008 6:40 PM with 6 comment(s)

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liberal reformer said:

In his splendid book on romanticism, Isaiah Berlin demonstrated that all good values cannot be harmonized. He wrote that it was the genius of the Romantics that vouchsafed us this truth. Aristotle thought that all good values could be reconciled. Similarly, Shakespeare seems to have held this as well. Ditto Sophocles. There are tragedies in this worldview but that is because we just don't have the relevant information. I can't imagine thinking like this because its counter seems so self - evident but that is only because I exist in the post - Romantic world. The freedom to practice one's religion is a definite good but so is protecting species. So is enviromental law. And they clash sometimes, as in this case that Josh cites.

May 9, 2008 7:14 PM

robinmb said:

Where does Sophocles say that all good values can be reconciled? His protagonists refuse to yield.

May 9, 2008 7:34 PM

Robinmb: Sophocles does not say that all values can be reconciled. And yes I have read Antigone. It is not that there were not conflicts in Greek tragedy; of course there were. Oedipus was involved in tremendous conflicts. It is just that the ancient Greek view, both in the tragedy and the philosophy, was that if the proper knowledge were available, tragedy could be avoided. Oedipus was a tragedy because he lacked that knowledge. You seem to have conflated "conflict of goods" with "conflict of persons".

May 9, 2008 8:50 PM

Environment and Energy said:

Since we're discussing bald eagles, I might as well bring up the symbolically resonant case of Beauty

May 10, 2008 2:06 PM

Rhubarbs said:

Yes, religious practice and other laws often collide. It's just that if the religious practice in question is that of Native Americans, the courts always choose to favor the other laws over the religious practice. If the religion in question is Christianity or Judaism, religious practice sometimes wins.

May 10, 2008 3:53 PM

Rhubarbs: The picture is more gray than you assert. Though the Supreme Court denied Native Americans the right to use peyote in their religious ceremonies in its 1990 Smith decision, 28 states allow such use. And Christianity has been pushed back from the public square considerably over the last few decades, This is what the religious right perennially complains about. The hysteriacs among them overdo it but the phenomenon is real and one that I celebrate.

May 10, 2008 6:20 PM