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

[Volokh, Eugene]

    I'm not sure quite how the judges became arbiters of scriptual
interpretation.  They did have to ask the threshold question of whether
the law is compelling the objectors to do something that religiously
object to, but it seems to me that this is a necessary inquiry for the
law.
 
    As to St. Patrick's Cathedral, the analogy doesn't quite work, it
seems to me.  The Cathedral is owned by the Church; rightly or wrongly,
the mountain isn't owned by the objectors.  The closer analogy might be
if the city ordinance authorized liquor licenses on the block around
some teetotaling church -- or even had a state-owned liquor store on the
same block -- and the church complained that this spiritually polluted
its services, or the tiny fraction of alcohol fumes wafting in from the
exhalations of passersby did the same.  Would a state RFRA give
objectors a right to control what's done on their own property (with
state permission) or on the publicly owned street?  I think the answer
should be no, and probably is no, given RFRA's reference to "substantial
burden," a phrase borrowed from pre-1990 Supreme Court caselaw, which
included Lyng and Bowen v. Roy.
 
    (Of course, in my liquor license example, some states do indeed
limit liquor licenses near churches, and this may be constitutional, see
Larkin v. Grendel's Den.  Likewise, the government does go some way
towards accommodating American Indian concerns related to religiously
significant places, see some of what was done in Lyng.  But I don't
think RFRAs mandate that the government do either.)
 
    Eugene


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David Griffiths
	Sent: Friday, September 05, 2008 6:53 PM
	To: religionlaw at lists.ucla.edu
	Subject: RE: "substantial burden" in Navajo Nation v. US Forest
Service
	
	
	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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