Broken Landscape by Pommersheim Frank

Author:Pommersheim, Frank [Pommersheim, Frank]
Language: eng
Format: mobi
Publisher: Oxford University Press, USA
Published: 2009-08-07T21:00:00+00:00

As in the beginning, Native Americans are welcome to become Christians and have their religious rights fully protected. Yet the norm of actual and potential constitutional exclusion of non-Christian Native American free exercise claims remains pervasive and threatening in the context of sacred sites in the public domain, the use of peyote (and other controlled substances), the possession of eagle feathers for religious purposes, and incarceration. Despite some positive statutory and executive branch policy changes, the Constitution has failed to keep up.

This jurisprudence disturbs and repels rather than comforts and attracts. It is a repudiation of the religious liberty at the core of the First Amendment. Instead of empathy, there are mostly such things as Justice O’Connor’s irritation in Lyng and Justice Scalia’s concern with anarchy in Smith. There is no sense whatsoever in either of these opinions of how this might feel or look to Native Americans or whether it even matters. The core element of understanding difference is to seek to understand it from the other’s point of view, not from one’s own. Such an approach guarantees no particular result but demonstrates a necessary sense of fairness and engagement. There is also an ethical and analytical shortfall in the sense of the inability of the Court to understand that the various Native American religious practices should possess parity with mainstream religious expression within the Judeo-Christian framework. Without the necessary empathy, understanding, and translation, the First Amendment guarantee of free expression of religion will remain tantalizingly elusive to Native Americans.

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