The Ninth Circuit, Sitting En Banc, Attempts to Clarify the Definition of "Substantial Burden" Under the Religious Freedom Restoration Act (RFRA): The Navajo Nation Decision

By MARCI HAMILTON
Thursday, Aug. 21, 2008

The U.S .Court of Appeals for the Ninth Circuit recently issued an en banc opinion in Navajo Nation v. United States Forest Service, which posed the question whether Indian tribes have the right to halt the use of recycled wastewater to make artificial snow on ski slopes located on land owned by the federal government.

In this column, I will explain how the decision illustrates the folly and expense to taxpayers that occurs when the Religious Freedom Restoration Act (RFRA) is applied to federal lands. It also highlights the issue that has become the major point of contention in most RFRA and Religious Land Use and Institutionalized Persons Act (RLUIPA) cases. (For a quick introduction to RFRA, see this prior column of mine; for a quick introduction to RLUIPA, see this column.)

The Facts, Claims, and Basic Equities in the Case

The federal government leases land to a private entity to run the Snowbowl ski area, which is located in the Coconino National Forest in Northern Arizona. However, several Indian tribes view the area as sacred land. Several years ago, these tribes unsuccessfully challenged plans to expand and upgrade the ski area. In this case, they objected to the use of recycled wastewater to make artificial snow.

The tribes and their members do not claim that they have ceased worshipping as a result of the introduction of the artificial snow; they claim that it has diminished their religious experience. While they alleged a variety of federal law violations, their RFRA claim has been the crux of the case from the beginning.

Before turning to the doctrine and the loaded legal jargon, it is worthwhile to look at the issues while bringing some simple common sense to bear. This is a national forest, which has been preserved for the benefit of the American people. If an artist roped off the area, saying that her artistic expression required the preservation of a pristine wilderness, and therefore no ski operation could be permitted, no one would think that she could take such a unilateral action. Attempting to preserve the area as pristine for religious reasons is little different.

Fortunately, the en banc Ninth Circuit opinion, written by Judge Bea, embraced this common-sense view. It stated that the courts cannot invalidate government handling of public lands, simply because it "offends . . . religious beliefs, sensibilities, or tastes." The foundational principle is that this is "land that belongs to everyone," and permitting any one individual or entity to dictate its use violates the intent of the preservation of national lands.

While This RFRA Decision Was Correct, Many Others Defy Common Sense: The Challenge of Defining "Substantial Burden"

Common sense, though, often goes out the window when RFRA doctrine walks through the door. One example is the Supreme Court's O Centro case, which held that a religious group likely has the right under RFRA to use an illegal drug simply because the federal government had permitted the use of a very different drug, peyote, in other religious services. Anyone who has ever taken more than one prescription knows that different drugs operate differently

Unfortunately, common sense is not the only casualty of the introduction of RFRA into the universe of free exercise. The monetary cost, and the toll on judicial resources, are also significant. In the Navajo Nation case, the district court had to hold an 11-day bench trial on the RFRA claims. The key question in this case -- as in most every RFRA or RLUIPA case -- was whether the government practice at issue imposed a "substantial burden" on the religious entity's religious conduct.

The drafters of RFRA and RLUIPA made it quite clear that they intended previous case law to determine the meaning of "substantial burden," apparently based on their belief that the term had a settled meaning. The many cases under RFRA and RLUIPA discussing and analyzing "substantial burden," however, including this one, show that it has become a contested term in this context.

One of the problems is that the courts confuse the substantial burden analysis with the question of what is "religious exercise." At the Supreme Court, in the few cases applying strict scrutiny under the Free Exercise Clause, the Court employed a limiting factor to keep strict scrutiny from turning into an automatic right to trump all law: The Court considered whether the practice at issue was "central" to the adherent's doctrine and, if not, ruled against the adherent. Thus, before having to address whether the law imposed a constitutionally-significant burden, the courts were able to cease the analysis if the belief was peripheral or not compulsory.

In its first iteration, when RFRA applied to all laws -- state or federal -- courts read RFRA's dictate to return to older case law as an incorporation of "centrality" analysis. But then Congress amended RFRA (after Boerne v. Flores held it unconstitutional at least as applied to the states) to include a more expansive definition of "religious exercise."

Now, RFRA and RLUIPA extend well beyond the Court's few strict scrutiny cases, because they impose the most stringent of constitutional tests on acts "whether or not [they are] compelled by, or central to, a system of religious belief."

How the "Substantial Burden" Inquiry Played Out in the Navajo Nation Case

In the Navajo Nation case, the parties did not contest that the tribes were sincere in their religious belief or that the basis of the RFRA claim was "religious exercise." Instead, the battle was over whether the introduction of wastewater-generated artificial snow was a "substantial burden" on the tribes' religious exercise.

The district court concluded that the snow production did not impose a "substantial burden" on the tribes, because it neither coerced religious practice nor penalized it. A Ninth Circuit panel reversed, however, finding that, to the contrary, the government's use of its land imposed a "substantial burden" on the tribes' religious exercise.

The en banc Ninth Circuit then reversed the panel decision, finding that there was no "substantial burden," on the same theory that had been identified by the district court: There was no coercion of religious belief or practice and no penalty for engaging in any belief or practice. The court distilled these two principles from the Supreme Court's decisions in Sherbert v. Verner and Wisconsin v. Yoder. The former held that a Sabbatarian could not be denied unemployment compensation for missing work for religious reasons when others would receive it for missing work for secular reasons; the latter held that the Amish are not bound by state compulsory-education laws.

It is questionable whether the Ninth Circuit exhausted the definition of "substantial burden" despite its best intentions. True, it identified circumstances where the Court had addressed burden on religious exercise in select cases invoking strict scrutiny, but it failed to look at substantial burden in the context of neutral, generally applicable laws (like the decision to use wastewater as a component of artificial snow). In those cases, the incidental burden placed on religious conduct is not substantial as a matter of law. Congress did not express an intent to retain the term only as it was interpreted in a small number of cases, but rather drew the term from the larger body of free exercise jurisprudence.

The Ninth Circuit en banc majority held that the "only effect" of the Forest Service's actions was on "subjective, emotional religious experience," which was insufficient to establish a substantial burden. The "diminishment of spiritual fulfillment" is not a "substantial burden," it held. The Court noted, in support of its decision, that religious exercise had continued despite the introduction of the artificial snow. However one approaches the issue - whether through common sense or the "substantial burden" interpretation -- it should be obvious to most that the Indian tribes did not have a winning argument here.

The Point Made By the En Banc Dissent: Understandable But Ultimately Incorrect

The en banc dissent believed otherwise. Judge Fletcher relied upon William James's theory of the "nature of religious belief" to argue that the majority failed to understand that religious experience is inherently subjective and that a diminishment of religious experience can itself be a "substantial burden."

Fletcher's rule, though, swallows the doctrine whole. There is no limiting principle in the lengthy dissent that would ever permit the use of public lands for other purposes if a religious objector appeared. Common sense must dictate otherwise, as it did in the earlier Lyng case, invoking the Free Exercise Clause, where the Supreme Court held that an Indian tribe could not stop the federal government from building a road on lands the tribe considered sacred. In that case, the Supreme Court acknowledged that the burden on the religious entity was extraordinarily heavy, but it nevertheless held that no individual or entity could dictate to the federal government how to use its own land for the benefit of all the people. No matter what doctrinal vehicle one employs, this last point is the wall that each of these cases eventually hits. The character of preserved public lands makes it very difficult to justify an argument that one individual or group can force the government to exclude many others.

I am not unsympathetic to the dissent's point about subjectivity. From the internal perspective of a believer, it seems to be an inevitable approach. It is not, however, sensible from an outside perspective - the perspective the federal courts must take. There was a time when I would have embraced such an approach, but further education on the impact of religious conduct on others has persuaded me that the approach is impracticable and, too often, dangerous. Free exercise questions should not be approached solely from the worldview of the believer, if the larger public good is to be served.

Legislative Accommodation Has Often Solved Similar Conflicts, and Rightly So

So what happens if RFRA is removed from the government lands arena? Too often, there is an assumption that the courts have the final word on free exercise issues. But that assumption has not been borne out by history. Following Lyng, the government and the Native American believers found a middle position, which preserved the sacred land. Similarly, the Supreme Court's 1990 decision in Employment Div. v. Smith held that there was no First Amendment free exercise right to use the otherwise illegal drug peyote, but was followed by legislative accommodation, allowing the religious use of peyote, by the federal government and over 30 states.

This case and the Supreme Court's O Centro case, which I discussed in an earlier column, cry out for congressional reconsideration of RFRA's blindly expansive reach. At the very least, federal drug laws and government lands should not be subject to RFRA's unreasonable dictates. Not only do the claims in these two arenas run counter to important public policies, but we the taxpayers must pay the freight when the disputes hit the federal courts.


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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