General Comments


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.


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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