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The Free Exercise Thereof, 38 William and Mary Law Review 1627 (1997)


This Essay is about the freedom of religion, which raises the possibility that it is also about the existence of God. Ever since the Supreme Court's first classroom prayer decisions, back in the early 1960s, constitutional scholars and judges alike have premised their analysis of religious freedom questions on assumptions about the existence of God that may fairly be described as skeptical—including, most emphatically, the stance that is usually, but inaccurately, referred to as "neutral." For example, in Lyng v. Northwest Indian Cemetery Protective Ass'n, when the Court allowed the Forest Service to open to logging and roadbuilding lands that three Indian tribes held sacred, the Justices explained, with evident sincerity, that this result was neutral toward the religion of the tribes. But the effect of the logging, as even the Court conceded, was to devastate the tribes' religious traditions, which would hardly seem neutral from the point of view of the Native American believer. A member of one of the tribes surely would find the Lyng decision a horrific interference with religious freedom; and the fact on which the Court relied, that the destruction of the tribes' religion was accidental rather than intentional, would be scant comfort.

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