"substantial burden" in Navajo Nation v. US Forest Service

[David Griffiths]

It seems to me that the 9th Circuit’s attenuated reading of  the“substantial burden” standard in the federal RFRA (ie, that burdens on "subjective, emotional religious experiences" don't qualify for RFRA protection) is to be expected and is typical of the type of error that Justice Scalia warned about in the Smith decision in 1990. The 9th Circuit appears to have baulked at the tricky task required by RFRA’s second stage of analysis: ie, weighing the compelling governmental interest supposedly served by setting up snow machines using waste water, as against the Navajo belief that the mountain is sacred and must not be polluted by dirty snow. The state’s interest of providing snow for people to ski on would perhaps not fare very well when measured against an ancient tribal religious belief, as happened in the dissenting opinion in the case. It was easier for the Court just to say there was no breach of a relevant religious belief; but by doing so the judges fell into the trap of becoming an “arbiter of scriptural interpretation” – an activity the Supreme Court ruled was out of bounds as long ago as 1981; and which Scalia satirises in his "throwing rice at weddings" hypothetical in Smith.
 
I guess Eisgruber and Sager would suggest the court should've considered a counterfactual benchmark as per their preferred analysis of Lyng in their 2007 book: EG, would it be acceptable for a New York city ordinance to authorise cleaners to use waste water to spray down the interior of St Patrick's Cathedral as part of a general clean up plan...?
 
DH Griffiths
PhD candidate
Faculty of Law
University of Auckland
New Zealand

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