gov't justification cases

[Kirk Wattles]

Michael McConnell wrote:
>
> In the next few weeks, I am going to be putting together the chapters
> for our upcoming casebook, on governmental justification in free
> ex/RFRA cases. Those of you who have taught the course, please
> recommend your favorite cases for this subject. (This is *not*
> confined to Supreme Court cases.) And please tell me why it is a good
> teaching case--what general point it helps to illuminate.

Dear friends,

I've been reading this list for a few weeks, to get a feel for it and
trying to find an opening, a way to present a case that you might be
interested in.  Perhaps, for starters, this is the simplest way.

I am involved in a large and very loose group called the Rainbow
Family, which gathers periodically on public lands to pray for peace
and share perspectives on the state of the world, the state of
religion, politics, etc.  The federal government, most specifically
the Dept of Agriculture and the Forestry Service, have drawn up
regulations to restrict access to National Forest lands for this
use.  These regulations were published in the Federal Register
at the end of August 1995 (pp. 45257-45295).  Starting last year,
the government has begun to enforce them.  There were three cases
initiated last year, two of which have already been settled (so to
speak) in rather unsettling ways.  The third case is coming to trial
at the Federal District Court in Erie, PA, in February.

Of course there will be appeals, but we expect that the government
will move to more heavy-handed enforcement of the law before the
Constitutional issues are fully resolved.

I could go on and on about details of the cases, of the history
of the regulations and of the Rainbow Family, etc.  The bottom
line for present purposes is that this is a real case with
profound 1st Amendment implications, and the RFRA will certainly
crop up along the way.  For those with web access, you might
first check an (unofficial) website of the Rainbow Family, at

  http://www.welcomehome.org/rainbow.html

Why is this a good teaching case?  Two reasons.  First, because
it shows how the Constitution gets stretched.  The gatherings of
the Rainbow Family are profoundly religious for many of the people
who participate, but the Rainbow Family consciously and deliberately
refuses to constitute itself as a centralized organization, with a
leadership who might be "responsible" in the government's eyes for
the gatherings.  The permit process proposed by the government runs
against the grain of the Rainbow Family, both for religious and for
pragmatic reasons.  Everyone is responsible, and it works, showing
both the present-day power and the implicit threat in the loaves and
fishes story.

Second, because it's really happening, and your students will
appreciate hearing about it from you before it explodes on the
national scene.  There are hundreds of thousands of people involved
in the Rainbow Family, of whom only a small fraction attend the annual
national gatherings (which usually draw 10-15,000 people together
for a week or so at a time).  If the government pursues its present
course, we will see mass arrests, probably this summer.  If the
constitutionality of the regs is upheld in court, religious freedoms
along with the right of peaceable assembly will be in serious jeopardy.

If you play your cards right, you might even find that some of your
students have been involved in the Rainbow Family -- at local potlucks,
regional gatherings, national gatherings, or through personal ties.
As the saying goes, "We are everywhere!"

Perhaps I might add a few details, to answer the first questions that
usually come up.

These gatherings have been happening every year since 1971 or so. The
government has tried repeatedly to stop them, but for various reasons
has failed.  The first gatherings succeeded as instances of massive
nonviolent civil disobediance.  Then the courts ruled that there were
1st amendment considerations.  Now the government is trying to get
around that.  At the local level, of course, Rainbows have always made
informal arrangements with forest service and law enforcement personnel.

Gatherings are held in National Forest lands, where they did *not*
violate pre-existing regulations designed mainly to regulate commercial
activities.  National Parks have many more restrictions on use by
citizenry, precisely because they are more intensively used for
recreational purposes, whereas National Forests are most heavily
used by forestry, mining, and cattle interests.  The new regulations
were drawn up specifically to curtail gatherings of the Rainbow Family,
as is evident in the rationale for the regs published in the Federal
Register.

Twenty years ago, you might have said this was a "hippy" thing, but
it has jumped the generation gap.  Most of the people now attending
gatherings are under the age of 30. From what I've seen, at least half
are under 25.  Although you have more than a few "bliss ninnies," many
of these young people are highly conscious of what's happening, and
they are strongly committed to making the gatherings happen well.
There's a lot of work involved in feeding thousands of people, keeping
everyone safe and happy, etc., as you may imagine.  No money is
collected for anything; it's all done out of love.

Everyone is welcome at a gathering.  Wherever it happens each year,
hundreds and thousands of locals come in, generally with their hearts
and minds open.  Of course there are sometimes difficulties, but I
add this just to point out that the Rainbow Family is hardly a "cult"
in the sense that a firm "us" and "them" line is needed.

Personally I believe that this process, so antithetical to the norms
of "organized religion," is what makes the case such an interesting
test of the 1st Amendment and the RFRA.  The gatherings are very
deeply religious, with profound effects in the lives of many who
attend, but they don't fit the category of "religion" that the
government would like to establish.  Thus, in this sense I believe
that with these regulations the government is seeking to establish
a particular mode of religion, and to suppress another mode, in
direct violation of the 1st Amendment (and the RFRA).

Your primary resources for this case will be the text of the
Federal Register and the records of the individual cases, both
before and after the regs were published.  Most of the crucial
materials are available on the web, so you can tie in the internet
if you want to.

I can answer questions in this forum, if you like, but I really hope
that it's something that will become self-explanatory once you begin
to take a look at it.  Please let me know if you decide to do it,
because there are forums and sites where class papers, etc. might be
distributed, for feedback to your students if they want, and/or as
feedback to the Family on what this case looks like from the
perspective of your students.  For instance, last year in a Rainbow
listserv group (gated into a newsgroup) we had a really good exchange
over some ideas that one law student had about the history of free
assembly, and the legal precedents that this history provides.

--
Kirk Wattles
(kwattles at mail.sas.upenn.edu)
.