Snowbowl decision

Sat Jun 13 15:05:09 PDT 2009

I don't see what child abuse cases have to do with this, other than that Marci likes to bring them up in order to try to discredit free exercise of religion in general.

The Ninth Circuit's standard is that "a 'substantial burden' [under RFRA] is imposed only when individuals are (1) forced to choose between following the tenets of their religion and receiving a governmental benefit ... or (2) coerced to act contrary to their religious beliefs by threat of civil or criminal sanctions."  Our amicus brief, http://www.narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf, lists cases that might be dismissed at the threshold under that language.  They involve varying faiths; we weren't just concerned about Christians.  There are the cases of Hmong or some Jewish families' objections to loved ones' autopsies, which were prime examples given to Congress of why RFRA was needed, but which don't involve the imposition of civil or criminal sanctions on anyone or deny anyone a benefit.  There are also prisoner cases, from multiple faiths, where the prisoners are not sanctioned but simply have their religious materials taken away from them or are refused a worship space or a religiously required diet.  (The same restrictive "substantial burden" test could well spread to RLUIPA or to state RFRAs.)  The government also confiscated religious materials (the sacramental tea) in Gonzales v. O Centro; that part of the case involved neither denial of a benefit nor  coercion to act contrary to religious belief.  The Ninth Circuit's test could also mean that government eavesdropping on religious conversations, meetings, or houses of worship creates no burden (entirely apart from whether a strong government interest justifies the burden).  The en banc decision essentially disapproved the circuit's Mocklaitis decision that had held RFRA was triggered by the government's surreptitious recording of a confessional between a prisoner and his priest.  Those are some of the examples that occurred to those of us who joined the brief.

As I said in my earlier post, there are ways to read the Ninth Circuit's language narrowly to avoid these results.  I expect that will happen in some of the situations.  But lawyers and judges ought not to have to parse or manipulate the phrasing in order to cover these cases, which involve substantial real-world inhibitions of religious practice and several of which are core applications of the statute.  (All this in addition, of course, to the effects on Native American practices in the federal-lands case themselves.)

Tom

-----------------------------------------
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
SSRN: http://ssrn.com/author='261564
Weblog: 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 hamilton02 at aol.com [hamilton02 at aol.com]
Sent: Saturday, June 13, 2009 8:04 AM
To: Law & Religion issues for Law Academics
Subject: Re: Snowbowl decision

I'm going to join Steve in asking for concrete examples of impact on Christians.  How about arguments to protect churches from discovery regarding child abuse, a claim repeatedly made by the Catholic and Latter Day Saints lawyers?  Or medical neglect?  What exactly are the law professors worried about?  If they cannot or will not answer that question why is the 9th cir decision a bad one?

Marci
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: "Brownstein, Alan" <aebrownstein at ucdavis.edu>

Date: Fri, 12 Jun 2009 15:33:13
To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
Subject: RE: Snowbowl decision

As someone who joined Tom and other law professors in filing the amicus brief supporting the cert. petition in this case, I agree with Tom that there may be religious liberty consequences for Christians as well as the members of other faiths if the 9th Circuit's RFRA standard is applied broadly and rigorously.

Another way to write an article that would make this decision relevant to Christians might be to use it as a vehicle for discussing why Christians should be concerned about the abridgment of religious liberty of people who hold beliefs that Christians believe to be false.

Alan Brownstein
UC Davis School of Law

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Friday, June 12, 2009 11:12 AM
To: Law & Religion issues for Law Academics
Subject: RE: Snowbowl decision

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/>
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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/
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