Snowbowl decision

[Berg, Thomas C.]

Ted,

A group of religious liberty scholars (several of them on this list, including me) filed an amicus brief supporting the cert petition arguing that the standard the 9th Circuit used to dismiss this case (for lack of a substantial burden under RFRA) could have far-reaching effects, including on cases involving prisoner religious claims and church land-use claims.  http://narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf  There was a similar brief from religious organizations, all of them Christian.  http://narf.org/sct/navajonationvusfs/amicus_of_religious_organizations.pdf  If the 9th Circuit follows its language broadly, the effects could be large.  If it limits its rule to federal-land issues or allegedlly purely spiritual harms, the effects on serious religious claims of non-Native-American faiths will probably be smaller.

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Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/>
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Ted Olsen [tolsen at christianitytoday.com]
Sent: Friday, June 12, 2009 12:33 PM
To: Religionlaw at lists.ucla.edu
Subject: Snowbowl decision

The Snowbowl decision (Navajo Nation v. Forest Service, denied cert. this week by scotus) appears significant for religion clause discussions and seems like it could be good fodder for a discussion in my magazine (Christianity Today).  But the significance to Christianity is not immediately apparent to me.

Any ideas?

The one I've thought about is looking again at the 9th Circuit opinion (which, admittedly, is now a year old) and the questions it raises about whether RFRA protects "subjective, emotional religious experience." The court said diminishing "subjective, emotional religious experience" (i.e. "damaged spiritual feelings") doesn't constitute a substantial burden. The dissent said subjective emotional religious experience is at the very core of religious belief and practice and therefore deserves the highest protections. That discussion could be interesting not just for the religion law questions but because it connects to so many other ongoing debate and questions (protecting "damaged spiritual feelings" in various domestic laws and UN resolutions, the relationship between "heart" religious expressions and "head" ones, e.g. Pentecostals feeling like the red-headed stepchild of the evangelical movement or of American Christianity in general, etc.)

But I'm no expert. Am I missing a more obvious implication of the Snowbowl case on Christian faith and practice?

Ted Olsen
Managing Editor, News & Online Journalism
Christianity Today
http://www.christianitytoday.com/ct/