En banc Ninth Circuit decision in Navajo Nation v. U.S. Forest Service

Volokh, Eugene VOLOKH at law.ucla.edu
Fri Aug 8 11:59:12 PDT 2008

Haven't read the whole thing yet, but the opinion appears to reject (by
an 8-3 vote) the RFRA claim.  Hhere's what looks like an interesting
passage from the Introduction:
Thus, the sole effect of the artificial snow is on the Plaintiffs'
subjective spiritual experience. That is, the presence of
the artificial snow on the Peaks is offensive to the Plaintiffs'
feelings about their religion and will decrease the spiritual
Plaintiffs get from practicing their religion on the
mountain. Nevertheless, a government action that decreases
the spirituality, the fervor, or the satisfaction with which a
believer practices his religion is not what Congress has
labeled a "substantial burden"-a term of art chosen by Congress
to be defined by reference to Supreme Court precedent
-on the free exercise of religion. Where, as here, there is no
showing the government has coerced the Plaintiffs to act contrary
to their religious beliefs under the threat of sanctions, or
conditioned a governmental benefit upon conduct that would
violate the Plaintiffs' religious beliefs, there is no "substantial
burden" on the exercise of their religion.

Were it otherwise, any action the federal government were
to take, including action on its own land, would be subject to
the personalized oversight of millions of citizens. Each citizen
would hold an individual veto to prohibit the government
action solely because it offends his religious beliefs, sensibilities,
or tastes, or fails to satisfy his religious desires. Further,
giving one religious sect a veto over the use of public park
land would deprive others of the right to use what is, by definition,
land that belongs to everyone.
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