Snowbowl decision

Fri Jun 12 11:42:22 PDT 2009

I think Prof. Berg hits it about right as far as the possible breadth  
of the decision, but, as is common, we don't really know what it means  
until the next case.  For my part, I don't read the court language as  
very broad at all and I read the case as easily distinguishable from  
most cases Christians would bring.
I think this case is just another in the line of cases which limit  
Constitutional protection to land-based and pagan earth worship-based  
claims in the face of even modest governmental interests with respect  
to the land.
Understood in context of the facts of the case, the troublesome phrase  
is much, much more limited.  The court seems to be saying that since  
there is no claim that is cognizable with respect to something real in  
which there is a protected interest, we are not going to protect  
against feelings being hurt.

Surely this is correct or we end up with a unit veto problem not based  
just on exercise=action, but on subjective feelings and beliefs.

Going back to Reynolds, one comes back to distinction between being  
able to believe or feel anything or emotionally respond to actions in  
any way you want, but the government can limit your action -- your  
acting on those beliefs, feelings, and emotional responses.

The court did not say "you can't treat the mountain as holy" nor did  
it say "you cannot feel emotionally and spiritually wounded because of  
the recycling of water" -- it just said that the right of free  
exercise (constitutional or RFRA-based) does not extend that far.

So, I think it has next to no significance to Christianity in general  
-- except perhaps the next manifestation of the Virgin Mary bleeding  
from a tree about to be cut for lumber would not be protected under  
RFRA.

Steve

On Jun 12, 2009, at 2:11 PM, Berg, Thomas C. wrote:

> 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.
>
> -----------------------------------------
> 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/ 
> >
> ----------------------------------------------------------------------------
> ________________________________
> 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/
> _______________________________________________
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-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

"Example is always more efficacious than precept."

Samuel Johnson, 1759

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