In “Federalist 51,” James Madison wrote, “In a free government the security for civil rights must be the same as that for religious rights.” He went on to explain that for religious rights to be secure, pluralism is needed. Religious rights, he explained, “consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects…” Put simply, greater religious diversity equals greater religious liberty.
In my twenty years at the Becket Fund for Religious Liberty, I have seen this principle reinforced time and time again. When we fought the federal government all the way to the Supreme Court to preserve the “ministerial exception,” or the right of religious institutions to choose who they employ, more than 20 amicus briefs representing scores of different faith groups and leaders stood shoulder-to-shoulder with us. When we defended the owners of Hobby Lobby and their right to run their business according to their beliefs, we set a modern record for the number of amicus briefs filed in a Supreme Court case. Every time that we have fought the meddling hand of the government in the religious affairs of its citizens, we have been joined by other faith groups who seek the same goal: to live and practice their faith publicly and freely.
And since our nation came into existence 239 years ago, our religious landscape has only grown more diverse. But one group has been there all along: Native Americans. Within the Native American tradition there is incredible diversity of practice and belief. But one common thread many Native American traditions share is the use of feathers in sacred rituals. The most important and symbolic feather in much of Native American culture is the eagle feather.
Native Americans revere the eagle in a special and profound way. As the bird that soars above all others, they view the eagle as a messenger to the Creator, one that represents virtues like courage, wisdom, majesty, truth, and freedom. It’s no coincidence that the United States chose the eagle as its own symbol – it’s a beautiful animal that invokes awe for its freedom and grandeur. In the Native American tradition, it is the eagle that carries the prayers of humans to the Creator, and so they honor the animal in a deep way, and its feathers are an essential component of Native American worship and religious display.
But today, the government makes it illegal for most Native Americans to possess even a single feather. Farmers, ranchers, and large power companies can get permits to kill eagles. And some Native Americans can possess feathers if their tribe goes through a multi-year bureaucratic process of getting “federally recognized.” But most Native Americans have been denied this special status and are forever barred from possessing even a single feather.
One of our clients, Mr. Robert Soto, is a member of the Lipan Apache tribe. His tribe has been denied federally recognized status despite being recognized by historians and the government of the state of Texas. Soto is a religious leader in his tribe and a renowned feather dancer. He cannot simply stop practicing his religion. So he used his sacred eagle feathers, until an undercover federal agent raided his powwow and confiscated the feathers.
It took nine years of litigation, but he eventually got them back after challenging the federal government under the Religious Freedom Restoration Act (RFRA), which prohibits the government from burdening the free exercise of religion without a compelling reason. Locking up an ancient culture’s headdress, it turns out, is not compelling, as the Fifth Circuit ruled. But even after returning the feathers, the government claims that it is illegal for Mr. Soto to share those feathers with his family or members of his congregation. He is also subject to prosecution if he gets additional feathers.
As my colleague, Senior Counsel Luke Goodrich said, “It’s time to let Native Americans practice their faith; we’re not living in the 1800s anymore.”
James Madison didn’t mention eagle feathers in The Federalist Papers, or the Constitution for that matter. He didn’t mention a lot of different religions and their sacred practices, because the idea was that the principle of religious liberty is expansive and intended for all.
Two hundred years later, it feels like we are still waiting for certain members of the federal government to get the memo.
Kristina Arriaga is the Executive Director of the Becket Fund for Religious Liberty–a public interest that defends the free expression of all religious traditions. Its recent cases include three major Supreme Court victories: the landmark ruling in Burwell v. Hobby Lobby, and the 9-0 rulings in Holt v. Hobbs and Hosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.
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