Dramatically narrowing RFRA's definition of 'substantial burden' in the Ninth Circuit - the vestiges of Lyng v. Northwest Indian Cemetery Protective Association in Navajo Nation et al. v. United States Forest Service et al.

• Author: Kelin, Zackeree S.
• Position: Religious Freedom Restoration Act of 1993 - 2010 Symposium Issue

The Court in Lyng denied the Free Exercise claim in part because it could not see a stopping place. We uphold the RFRA claim in this case in part because otherwise we cannot see a starting place. If Appellants do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred.

Navajo Nation et al. v. United States Forest Service et al, 479 F.3d 1024, 1048 (9th Cir. 2007) (Fletcher, J.), rev'd 535 F.3d 1058 (9th Cir. 2008) (en banc). The only effect of the proposed upgrades is on the Plaintiffs' subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs' religious sensibilities. To plaintiffs, it will spiritually desecrate a sacred mountain and will decrease the spiritual fulfillment they get from practicing their religion on the mountain. Nevertheless, under Supreme Court precedent, the diminishment of spiritual fulfillment--serious though it may be--is not a 'substantial burden' on the free exercise of religion.

Navajo Nation et al. v. United States Forest Service et al., 535 F.3d 1058, 1070 (9th Cir. 2008) (en banc). I. INTRODUCTION

For the United States Court of Appeals for the Ninth Circuit, the protections afforded under the Religious Freedom Restoration Act are triggered only when the government forces individuals to choose between following the tenets of their religion and receiving a governmental benefit, or coerces them to act contrary to their religious beliefs by the threat of civil or criminal sanctions. No other type of governmental action triggers RFRA's compelling interest test in the Ninth Circuit.

This test, the most stringent among the federal circuits which are themselves divided on how to properly define a substantial burden under RFRA, (1) was announced in Navajo Nation et al. v. United States Forest Service et al. (2) Several Native American tribes brought this sacred lands case to challenge the United States Forest Service's approval of a plan for a commercial ski resort to use treated sewage effluent to make artificial snow to form a base for skiing on the San Francisco Peaks--a mountain held sacred by at least thirteen Native American tribes and hundreds of thousands of Native Americans. Just as the Native American religious claims in Navajo were cut off at RFRA's threshold, this restrictive test appears to cut off many other free exercise claims, raising the question of whether the standard comports with the broad remedial purposes of this legislative effort to protect the free exercise of religion.

A thorough examination of Navajo reveals that the Ninth Circuit's narrow interpretation of "substantial burden" stems from the overstated policy concerns articulated in the pre-Smith case of Lyng v. Northwest Indian Cemetery Protective Association (3) and is inconsistent with the religious freedom protections found in Sherbert v. Verner (4) and Wisconsin v. Yoder (5) that RFRA sought to restore. Furthermore, the case exposes the tension that results when protection of land-based religious beliefs is evaluated in a nation built on an ownership-based Western approach to land. The Ninth Circuit seemed uncomfortable with the proposition of extending RFRA's protections to the way in which Native Americans worship, i.e., where essential elements needed to practice these religions--land and other natural resources--are controlled by the government. As a result of what appears to be a policy-driven outcome, many more religious freedom claims outside the context of Native American religion will be cut off, as the triggering mechanism for application of the compelling interest test is now far more difficult to satisfy in the Ninth Circuit.

2. THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA)

   The Religious Freedom Restoration Act (6) (RFRA) prevents the Government from imposing a substantial burden on a person's exercise of religion unless it "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (7) The legislation was passed in 1993 in response to a series of cases brought under the Free Exercise Clause of the First Amendment that excluded whole categories of governmental action from strict scrutiny analysis. This development culminated in the Court's holding in Employment Division v. Smith, (8) where the Court observed that, "[i]n recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all." (9) This included refusing to apply the test to prison regulations, (10) the administration of "facially neutral and uniformly applicable" administration of welfare programs, (11) military regulations, (12) and government land use decisions. (13) In Smith, the Court upheld the application of an Oregon law denying unemployment benefits to members of the Native American Church who failed a drug test as a result of taking part in the peyote sacrament. The Court concluded that, unless a case invokes multiple constitutional interests, so-called "hybrid" cases, the Constitution did not require the Government to come forward with the compelling governmental interest to justify generally applicable actions that interfere with religious practices. As the Court noted, however, Congress could impose such a standard through legislation. (14) With RFRA, Congress proposed to do just that.

   RFRA aims to strike a "sensible balance[] between religious liberty and competing prior governmental interest[s]" (15) by "restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." (16) No categories of governmental action are excluded from RFRA's protections. (17) When passing RFRA, Congress specifically found that Smith had "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion" and that "the compelling interest test as set forth in prior federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." (18)

   As recognized by the Supreme Court in City of Boerne v. Flores, (19) RFRA provides protections beyond those provided under the First Amendment. "Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion." (20) It is designed to protect, for example, against "autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs, ... zoning regulations and historic preservation laws" that have, as an incidental effect of their normal operation, "adverse effects on churches and synagogues." (21) The statute was designed so broadly that it was held to go beyond Congress' power under Section 5 of the Fourteenth Amendment and found to be unconstitutional as applied to the states. (22)

   In 2000, Congress responded to Boerne by passing the Religious Land Use and Institutionalized Persons Act (RLUIPA). (23) This companion statute restores RFRA's protections to religious practices substantially burdened by state and local governments' regulation of land use and prisons. RLUIPA also modifies the definition of religious exercise under RFRA. Now both statutes, which employ the same compelling interest test, protect "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." (24)

   In the eighteen years since RFRA was passed, the Supreme Court has never taken the occasion to clarify what the statutory phrase "substantial burden" means. Meanwhile, the circuit courts have become divided over the issue, and at some point, the Court or Congress will have to step in and clarify exactly how the statute's protections are triggered. Unfortunately, the Supreme Court declined to address this issue in the Navajo case, as it denied the Petition for a Writ of Certiorari. (25)

3. THE SAN FRANCISCO PEAKS (26)

   Sacred to thirteen Southwestern tribes, and hundreds of thousands of Native Americans, the San Francisco Peaks (Peaks) (27) arise out of the northern Arizona desert near the city of Flagstaff. Forming a single mountain, the Peaks are "a landmark on the horizon" (28) for the tribal communities that surround it. It is the center of creation for many southwestern tribes, the home to deities and ancestral beings, and a source of natural resources needed to perform ceremonies that are an indispensable part of the religious traditions and everyday lives of the tribes that hold the mountain sacred.

   Today, this land is owned by the federal government and administered by the United States Forest Service (Forest Service) as the 1.8 million-acre Coconino National Forest. In recognition of the significant role the Peaks play in the formation of the beliefs and values that inform the cultural, religious, and traditional practices of many tribal communities in the Southwest, the Forest Service has officially determined that the Peaks are eligible for inclusion on the National Register of Historic Places as a Traditional Cultural Property. This means the Peaks are widely acknowledged as a place "associat[ed] with cultural practices or beliefs of a living community that (a) are rooted in that community's history, and (b) are important in maintaining the continuing cultural identity of the community." (29) In fact, Bulletin 38, written to help agencies define what a Traditional Cultural Property is, cites the Peaks as an iconic example of a Traditional Cultural Property, noting that the landscape is "extensively documented and widely recognized as [a place] of extreme cultural importance to the Hopi, Navajo, and other...