In Access Fund v. U.S. Dept. of Agriculture, the climbers made the case that restricting public access to Cave Rock was a violation of the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” To address appeals to the Establishment Clause, courts often rely on the Lemon test, referring to Lemon v. Kurtzman (1971).
According to the guidelines of the Lemon test, a governmental act is unconstitutional if:
– It has no secular purpose
– Its principal effect is to advance religion
– It involves excessive entanglement with religion1Access Fund v. US Dept. of Agriculture, 499 F.3d 1036 (9th Cir. 2007)
The Access Fund argued that since the Washoe do not give Cave Rock a non-religious purpose, the ban is meant to further their spiritual practices. As such, the prohibition against climbing does not have a secular purpose and has the principal effect of advancing religion. Additionally, the implementation of the ban would provide incentive for the general public to support religious interests of the Washoe by not allowing free access to Cave Rock. This would result in a government entanglement with religion, thereby failing the Lemon test on all counts.
Over the course of four years, the case rose through the courts until 2007, when the 9th Circuit Court of Appeals upheld the Forest Service’s ban on sport climbing. One by one, the court, led by Justice Margaret McKeown, rejected each of the Access Fund’s claims to the Lemon test.
First, McKeown wrote, “the Forest Service acted pursuant to a secular purpose: the preservation of a historic cultural area.”2Access Fund v. US Dept. of Agriculture, 499 F.3d 1036 (9th Cir. 2007) Their primary goal was to add Cave Rock to the National Register of Historic places, a list that includes many churches, burial grounds, and other such religious sites without issue.
To their second point regarding the advancement of or entanglement with religion, the Court ruled that the fact “that a group of religious practitioners benefits in part from the government’s policy does not establish endorsement… nor does anything in the record suggest that the Forest Service disapproves of non-Washoe religious practices.”3Access Fund v. US Dept. of Agriculture, 499 F.3d 1036 (9th Cir. 2007)
In effect, the court said the Forest Service was not valuing religion over secular interests or attempting to sway public opinion in favor of Washoe religion. They were just trying to protect a site that is historically, culturally, and archaeologically important to all, though it is additionally beneficial for the Washoe.
In the immediate aftermath of the decision, angry climbers swore to continue going to Cave Rock in protest. In reality though, the ban has been well-enforced. By 2009, the Forest Service began removing climbing bolts from the rock face.
