Desecrating a Sacred Mountain

The Ninth Circuit Court of Appeals, sitting en banc, recently decided an interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain considered sacred in their religion. Apparently, the government planned to use recycled wastewater, which contains 0.0001% human waste and would, in the view of some of the plaintiffs, desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.

The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentially, no such claim could be brought against neutral laws of general applicability under the Constitution’s Free Exercise Clause.

The Ninth Circuit (over three dissents) rejected the challenge. That doesn’t surprise me. Any rule that required accommodation of the plaintiffs’ claim here would likely result in religiously based gridlock on a host of policy questions. The outcome tracks an earlier Free Exercise decision. What interests me is the court’s reasoning.

The court may well have concluded that there is a compelling interest justifying disregard of the plaintiffs’ religious interests. But it’s hard to call a ski hill compelling. A difficulty with RFRA claims (one that leads, I think, to our less generous Free Exercise jurisprudence) is that it may subject more government policies to more judicial scrutiny than is optimal.

To avoid this, the court found that there was not a substantial burden on the tribes’ religious practices. The majority thought that a RFRA violation can happen only when “individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit” or “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.” That seems like a fairly serviceable principle. The government cannot be compelled to conduct policy in a way that is consistent with everyone’s religious preferences or be obligated to make public land conducive to every imaginable religious preference.

But there is still a problem. One can imagine state policies that, while not coercive or punitive, might effectively destroy the opportunity for a religious practice. It may not be coercive for the government to acquire the plaintiffs’ sacred space and turn it into a ski hill, but it may be burdensome in a way that we feel ought to require some constitutional or RFRA consideration.

Nor does it do all the work of limiting the potential scope of RFRA. The scope of what might substantially burden religious practice is limited only by the scope of human musings about ultimate questions. The government will want to – need to – restrict some of them.

The majority opinion suggests another analytic principle, arguing that there was no substantial burden because the only harm to the plaintiffs was to their “subjective spiritual experience.” This second argument may be nothing more than a restatement of the first.

But as its own principle, it is both unhelpful and problematic. Most (all?) claims about what religious practice is can be recast as claims about an adherent’s “subjective spiritual experience.”

To dismiss a RFRA claim because it burdens only a subjective spiritual experience would be in tension with the tradition of judicial neutrality about the particular religious claim being advanced. That neutrality might require taking all claims of substantial burden at face value. But then we return to the head of our parade of horribles. Where is the stopping point? Do we really want to subject every government action that burdens religious practice to some form of strict scrutiny?

I don’t have a way out. There is a little voice in the back of my head that says that a constitutional doctrine or interpretative hermeneutic that mandates a radical evenhandedness between any and all religious practices is unsustainable. Courts will inevitably have to pick and choose where heightened scrutiny applies.

But that requires a theory about the picking and choosing. Requiring that an action be coercive or punitive is helpful, but may be both over- and underinclusive. Dismissing certain claims as merely subjective, it seems to me, doesn’t help us at all.

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