Claim in loggers' lawsuit unlikely to survive in court
Environmentalists often speak of protecting nature as a sacred duty that offers a profound connection to a higher purpose. “Anybody who walks in the forest feels the spiritual connection,” says Ray Fenner, executive director of the 1,400-member Superior Wilderness Action Network (SWAN).
Nature causes even government officials to wax philosophical: U.S. Forest Service chief Mike Dombeck told a group of foresters in September that his agency was doing “spiritual work.”
So when the bureaucrats side with environmentalists, are they violating First Amendment protections against government “establishing,” or favoring, a religion? That’s what Minnesota loggers contend in an unusual federal suit filed in September against the Forest Service, Minnesota-based SWAN, and the New Mexico environmental group Forest Guardians. As the alternative weekly City Pages (Sept. 22, 1999) reports, the suit contends that the Forest Service slowed approval of timber sales from federal lands because of legal challenges by the environmentalists, who were motivated by a “religion”: deep ecology. By adopting a position based on religion, the Forest Service violates the Constitution, the suit says. The loggers seek $600,000 in damages from the Forest Service and the environmentalists.
Stephen Young, the loggers’ Minneapolis-based attorney, says he crafted his challenge after clients told him timber-cut opponents were no longer interested in compromise and instead insisted on “no-cut” logging policies. After reading Al Gore’s environmental tome Earth in the Balance , Young says, he became convinced that “a set of religious beliefs called deep ecology” explained government policies from the highest level.
Norwegian philosopher Arne Naess coined the term in 1973 to refer to a more fundamental type of environmental reform than “shallow ecology,” which only tinkers with the status quo. The first of Naess’ eight deep ecology principles contends that nonhuman life has value “independent of the usefulness of the nonhuman world for human purposes.” Another says that humans “have no right to reduce this richness and diversity [of nonhuman life] except to satisfy vital needs.”
Fenner was unfamiliar with deep ecology and had to look it up after he was named in the suit, he says. “Look, it’s beside the point,” he contends. “If you look at any of my timber appeals over 10 years, I’ve made them based on law and never on religious belief.”
The First Amendment rights that are really violated in the case are the environmentalists’ right to free speech, says Fenner. “This is nothing more than a SLAPP suit—a strategic lawsuit against public participation,” he charges. “[The loggers] are trying to stop us from being heard. That’s the crux of what’s going on here.”
So far, legal scholars agree. “It’s an absolutely frivolous suit,” says University of Minnesota law professor Michael Stokes Paulsen, an expert on religion and the Constitution. “I wouldn’t be surprised if [the loggers] wind up having to pay the defendants’ court costs.”
The clearest indication of harassment is that a purely constitutional claim names the environmentalists at all, says Paulsen. Except for slavery, the Constitution limits the actions of only government, not individuals, he notes. Therefore, private groups can’t be sued even if they are trying to establish a religion. “This is also a potentially grave infringement on the constitutional rights of people to petition government for redress of grievances,” Paulsen adds. “They are saying that people with religious beliefs may not lobby the government, and that’s clearly wrong.”
Even if the case survives, Paulsen says, it’s “extremely improbable” that the courts will declare deep ecology a religion. Supreme Court decisions have “uniformly come down on the side that a belief system must involve a god or gods,” Paulsen explains, “or at the furthest extreme, a transcendent belief system that affirms the place that a traditional god or gods would have held. A pagan fertility cult could count as a religion, but as I understand the allegations, deep ecology seems at most to be a deeply held philosophical system—there’s not an Isis, or a nature god.”But even if the environmentalists are linked to deep ecology, and the courts say deep ecology is a religion, there’s still a final hurdle: proving that Forest Service policy established a religion. “It isn’t enough to say an outcome resembles a religious principle—otherwise, laws against murder would be overturned because the Ten Commandments say ‘thou shall not kill,’” Paulsen notes. “You have to show that this policy could be explained on no other reasonable grounds than the promotion, endorsement, and coercion of specific religious activity. Again, based on my reading of the government, they simply don’t want to sell that much wood.”