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I doubt very much that opponents of the Thirty Meter Telescope Project on Mauna Kea think they have much in common with the religious conservatives who oppose the right of same-sex couples to marry.

But compare these scenes.

During oral arguments Tuesday on the same-sex marriage cases before the U.S. Supreme Court, a protester had to be restrained and ejected after shouting that a decision favoring same-sex unions would go against the Bible and call down “God’s wrath” on the court and the country.

And during the University of Hawaii Board of Regent’s session in Hilo over the weekend, an oli or chant presented by a TMT opponent reportedly warned regents that if they reached the wrong conclusion, “death shall fall upon them.”

Two very different but extremely volatile public issues, each reflecting a conflict over what is “sacred” and should remain inviolate.

To the extent that opposition to the construction of the TMT is grounded in ideas of what is considered “sacred” according to particular current beliefs about Native Hawaiian religious traditions, we’re in that dangerous territory where public policy and religious beliefs collide. Working through such differences in a diverse society such as ours is necessarily difficult.

Luckily, we’ve evolved a legal approach to religious rights that, with time and a bit of luck, allows different religions and religious communities to co-exist within our society.

With this in mind, it’s instructive to look at how the issues of the sacredness of Mauna Kea, along with the protection of traditional Hawaiian religious and cultural practices, were dealt with during the prolonged contested case hearing conducted under the auspices of the Board of Land and Natural Resources.

Testimony and evidence was presented over seven days of hearings in August and September 2011, with additional time for legal wrangling over disputed issues and technicalities.

Based on evidence presented during the contested case process, which included the right to present written and oral testimony and cross-examine witnesses, hearings officer Paul Aoki ruled that the project could move forward. There were both legal and factual issues at play.

His ruling, and the land board’s adoption of those findings, are being challenged in ongoing legal proceedings by telescope opponents.

In the meantime, though, much of what’s being publicly disseminated about the Mauna Kea issue conveys the mistaken impression that the process simply disregarded native religious and cultural rights. But and include detailed discussions of evidence, and legal precedents, underlying each conclusion.

Religious Freedom

Will the Thirty Meter Telescope violate the religious freedom of those who believe in that the mountain is sacred?

The hearing officer concluded it will not, and spelled out the reasons with some precision.

During the contested case hearings, and continuing today, opponents of the TMT have asserted they have a right to veto power over this project and the overall future of Mauna Kea.

“The law does not support that view,” the hearings officer concluded.

The free exercise of religion “must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion,” he stated.

Telescope opponents point to the sacredness of the entire area, and advocate removal of all observatories already in the astronomy area near the summit.

But the hearings officer came to a different conclusion, again based on legal precedent.

Much of what’s being public disseminated about the Mauna Kea issue conveys the mistaken impression that the process simply disregarded native religious and cultural rights.

“Belief in an area’s religious sacredness does not make development of that area an unconstitutional infringement of religion, and does not give the believer a legal right to stop the development,” Aoki concluded, citing a string of Hawaii Supreme Court and U.S. Supreme Court cases. “Constitutional rights protect against unreasonable interference with religious practices; those rights do not protect against offenses to religious beliefs.”

The hearings officer said members of the Mauna Kea Hui�� had failed to present evidence showing they had “conducted or participated in religious ceremonies” on the TNT site, and did not identify religious practices that would be interfered with.

“Petitioners (those known as the Mauna Kea Hui whose protest triggered the contested case) and everyone else will have continued access to the area, for religious practices and for any other activity,” the hearings officer concluded.

Customary and Traditional Rights

The Hawaii State Constitution protects traditional Hawaiian practices, while a series of court decisions have clarified what is necessary to claim those protections.

Article XII, section 7 of the Hawai‘i State Constitution provides: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the rights of the State to regulate such rights.”

The hearings officer found TMT opponents had presented “no testimony or evidence to establish that they engage in any conduct on Mauna Kea that is constitutionally protected as a native Hawaiian right.”

Citing prior Hawaii Supreme Court decisions interpreting the constitution, the hearings officer concluded that practices “associated with the ancient way of life”, and proven to have been established by Hawaiian usage before Nov. 25, 1892, are provided protection.

However, reviewing the record in the contested case, he found TMT opponents had presented “no testimony or evidence to establish that they engage in any conduct on Mauna Kea that is constitutionally protected as a native Hawaiian right or that the TMT Project would interfere with any of their practices or that the Project would interfere with constitutionally protected conduct.”

In other words, the TMT opponents did not document that their practices had been in established use prior to the Nov. 25, 1892, trigger date.

That turns out to be a major point, because it is key to triggering the constitutional protections granted customary and traditional rights.

While the constitution and prior court cases protect traditional and customary practices by native Hawaiians prior to the 1892��date, “they do not protect contemporary cultural practices,” the hearings officer concluded, citing prior court cases.

Further, no evidence was presented “of any cultural or religious practices by native Hawaiians — whether contemporary, or customary and traditional — at the five-acre site on which the TMT observatory is proposed to be located,” according to the hearings officer’s findings.

He��also pointed to evidence that “native Hawaiian cultural and religious practices are not codified, but rather are individual and personal in nature.”��

“The evidence further showed, and Petitioners conceded, that there is no single native Hawaiian viewpoint or opinion on any subject, including the Project; and some native Hawaiians, including native Hawaiian cultural practitioners with lineal or other significant ties to Mauna Kea … support the Project and testified that it would have no impact on their cultural practices,” he wrote.

Obviously, there remains disagreement over the conclusions, and the question of whether factual, procedural, or legal errors were made remains unresolved in the courts, but the record doesn’t reflect an absence of attention to these sensitive questions of native rights. Hopefully, as this is understood and appreciated, ways will open up to resolve the current impasse.