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

[Douglas Laycock]

I agree that the principal problem here is that the Indians no longer own the mountain.  If they were being required to do something over their religious objections, and the court were to say that their religion didn't really mandate their religious objection and that their objection was only subjective and emotional, that would be a serious problem.  But requring the government to preserve public property for the religious needs of a former owner is a very difficult claim to make out, however dubious the original land sale. 

On the phrase substantial burden:  This was inserted into RFRA in committee, very late in the legislative process, for fear of attenuated claims of burden.  My recollection is that Larry Tribe was worried about a driver running a red light and defending on the ground that the was late for church.  A quick and dirty Westlaw search ("substantial! burden!" and religio!) indicates that the phrase did not appear in Supreme Court cases prior to Smith.  It shows up once in the 1988 Smith opinion, and reappears in the more famous 1990 Smith opinion, summarizing the alleged requirements of earlier cases that had talked only about burdens, not substantial burdens. 

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     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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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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