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The Navajo Nation Case,
Which the Supreme Court May Soon Review, and How It Reveals the Complex Balance Envisioned by the Religious Freedom Restoration Act


Tuesday, Feb. 17, 2009

The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the Ninth Circuit involving religious liberties and the seminal federal statute – the Religious Freedom Restoration Act (RFRA) – designed to safeguard them. In this column, we will discuss the issues the case raises; the reasons why the Ninth Circuit's resolution of these issues, while understandable, might not do justice to the complex and competing interests involved; and the problems that both the Supreme Court and lower courts face when trying to implement this well-meaning but imperfectly-drafted Congressional statute.

The Facts of the Navajo Nation Case, and the Ninth Circuit's Opinions in the Case

The case, Navajo Nation v. U.S. Forest Service, involves an effort by a group of Native Americans to block the U.S. Forest Service's plans to allow artificial snow generated from recycled wastewater (containing small amounts of human waste) to be made and placed on federal lands that are leased to ski operators, but which also are used by the Native Americans for sacred rituals and activities. The plaintiff Native Americans contend that use of such "dirty" snow desecrates the mountain, and thus the ceremonies they hold on it, in violation of their religious sensibilities and rights under the RFRA.

A three-judge panel of the Ninth Circuit ruled in favor of the plaintiffs and barred the Forest Service from allowing the recycled wastewater snow. But an 11-judge en banc Ninth Circuit panel undid that result, and rejected the Native Americans' claim. Of particular importance, the en banc panel held that RFRA did not protect the Native Americans in these circumstances because RFRA's threshold that must be surmounted before the statute offers any protection – that a government action "substantially burden the exercise" of someone's religion – was not implicated. The en banc panel determined, largely out of a fear of a parade of horribles and a concern over judicial overreaching, that a "substantial burden" does not exist unless government has coerced, under threat of sanction, someone to act in violation of his/her religious principles, or conditioned a governmental benefit on conduct that would violate a person's religious convictions.

It is this controversial definition of the key statutory phrase "substantial burden" that many of the parties and amicus curiae (friends of the Court) are doing battle over, in the papers filed with the Supreme Court.

The Difficulty with Defining What Is a "Substantial Burden" Under RFRA
And the Problem with the Ninth Circuit's Answer

It is easy to understand why the Ninth Circuit struggled to craft a working definition of what constitutes a substantial burden under RFRA; the term's meaning is not self-evident. Moreover, some limiting definition of the term must be found; it cannot be the case that any government regulation or decision that has some attenuated consequence for the exercise of a religious practice creates a cause of action under RFRA. So identifying a substantial burden is a necessary -- but necessarily hard -- job.

The difficulty of the problem, however, cannot justify a court's choosing a seriously inadequate answer to solve it – and the Ninth Circuit's interpretation of RFRA in the Navajo Nation case has some problems. What the court has done here is to formally exclude one kind of burden from the coverage of RFRA. Again, the court held that government interference with religious exercise that does not coerce a practitioner's choice by threatening sanctions or denying benefits requires no justification from the government -- regardless of how direct and heavy the burden might be. Under that analysis, the state's use of physical force and power to prevent the exercise of religion can never support a claim under RFRA.

Excluding such cases from the coverage of RFRA, however, contributes nothing to solving the real problem courts confront in interpreting RFRA – deciding when a burden is too attenuated or insubstantial to warrant review under the statute. Under the Ninth Circuit's standard, those core issues remain unresolved for all the cases in which coercion can be alleged. All that the Ninth Circuit has accomplished is the rejection of one category of RFRA claims – and this categorical rejection seems arbitrary, given the history and purpose of RFRA.

The Key Legal Background: A Prior Supreme Court Case, and the Intent Behind RFRA

To begin, it is important to understand one of the key problems with the Supreme Court's decision in Employment Division v. Smith -- the case that held that the free exercise clause of the Constitution provides no protection against neutral laws of general applicability. This is the case that led directly to RFRA's enactment in Congress. One reason the Court's ruling in Smith was so unsatisfactory to Congress was that, under Smith, the government could interfere with and prohibit religious exercise for completely trivial and unimportant reasons. Freedom of religion did not need to be assigned any weight at all in the government's cost-benefit analysis. If there is one thing that RFRA was enacted to change, it was a legal system where government could cavalierly ignore the serious consequences of its action on religious practice. That, however, is exactly what the Ninth Circuit's interpretation of the "substantial burden" language in RFRA permits. It allows the state to physically control and prevent the exercise of religious for insignificant reasons or, for all intents and purposes, for no legitimate reason at all.

More importantly, many of the specific religious liberty issues Congress identified as reasons for enacting RFRA would fall outside of the statute's coverage under the Ninth Circuit's test. One of the concerns discussed by Congress when it explained the necessity of RFRA involved government failures to respect religious beliefs about the conducting of autopsies. Certain minority religions object to having autopsies performed on adherents of their faith because bodily intrusion violates their beliefs about the sanctity of the human form. Obviously, however, government officials need not threaten legal sanctions or the denial of benefits in order to perform an autopsy. Rather, they can simply seize the body of the deceased and have the autopsy performed in a government morgue to which offended co-religionists would be denied admittance. Under the Ninth Circuit's standard, the government's rejection of religious objections regarding the handling of a deceased family member's body would not be deemed to substantially burden religious exercise. That result seems plainly wrong.

It is also clear that the Congress was concerned about the religious liberty of prison inmates when it enacted RFRA. That concern continued after the application of RFRA to state and local governments was invalidated by the Supreme Court in City of Boerne v. Flores, and the concern led directly to the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. Yet it is intrinsic to the operation of prisons that many infringements of an inmate's religious liberty do not involve the threat of sanctions or the denial of benefits – and thus, again, would not fall within the Ninth Circuit's test.

Prison authorities control all aspects of prison life. They can deny religious books being shipped into the prison and confiscate reading materials they consider unacceptable. Religious symbols such as crosses and crucifixes can be confiscated. Authorities can refuse to permit inmates to be released from their cells to attend religious services. Grooming standards that violate religious convictions can be imposed through physical force. Access to clergy can be limited and controlled. In one noteworthy case, officials even audiotaped an inmate's sacramental confession to a Catholic priest.

None of these actions by prison authorities clearly involve threats of legal sanction or the denial of benefits, and thus none of these actions would implicate RFRA under the Ninth Circuit's approach. It is hard to believe, however, that Congress did not intend for cases like these to be actionable under RFRA or RLUIPA (whose relevant terms are very similar to RFRA's).

Of course, the fact that the action of prison authorities (or medical authorities performing autopsies) is found to substantially burden religion does not suggest that the burden cannot be justified. Legitimate security concerns in the prison context (or investigatory concerns where someone has died) often justify a decision by authorities that burdens a person's or a family's ability to practice a faith. Congress was well aware of that reality when it enacted RFRA and RLUIPA. The purpose of these statutes was to ensure that the exercise of religion was not burdened unnecessarily, not that the exercise wasn't burdened at all.

Thus, the Ninth Circuit's definition of substantial burden is problematic precisely because it categorically prevents RFRA from being used to test the necessity of interfering with a person's exercise of his faith in a broad range of cases.

The Ninth Circuit's Test Clashes Sharply with the Supreme Court's Approach In Its Only Substantive RFRA Application Thus Far

Indeed, the one case in which the United States Supreme Court applied RFRA to federal government action, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, would be nothing more than an exercise in futility under the Navajo Nation definition of substantial burden. In O Centro, a small religious sect attempt to import hoasca, a substance used to make a sacramental tea ingested by sect members. The plants from which the tea could be brewed came only from the "Amazon region." Customs inspectors intercepted and seized a shipment of hoascathat had been sent to sect members living in the United States because the plants contained a hallucinogen listed and banned under the federal Controlled Substances Act (CSA). Customs officials threatened to prosecute sect members for violating the CSA. The Supreme Court unanimously affirmed a preliminary injunction prohibiting the government from enforcing the ban, reasoning that the government had not demonstrated the sufficiently compelling state interest required by RFRA to justify a substantial burden on religious practice.

Under the Ninth Circuit's analysis, government officials could not prosecute sect members for importing or using hoasca for religious purposes because RFRA would apply to block the threat of legal sanctions against religious practitioners. But the government does not have to prosecute anyone to enforce the Act and prevent this religious practice. It could instead simply authorize customs officials to continue to do exactly what they had done in the O Centro case – to intercept and seize any shipments of hoasca into the United States. And according to the Ninth Circuit, those actions could not be challenged under RFRA because they do not involve the threat of legal sanction of the denial of benefits.

In other words, the fact that the government knowingly makes it impossible for sect members to practice their faith has no legal consequence under the Ninth Circuit approach. Under that approach, the Supreme Court's decision in O Centro could be easily and effectively circumvented.

The Ninth Circuit's Test Is In Serious Error, and the Court Exceeded Its Proper Role

Finally, the Ninth Circuit's truncated interpretation of what constitutes a substantial burden is not only inconsistent with Congress' purposes in enacting RFRA and Supreme Court caselaw; it also ignores a critical difference between the role of the federal courts in applying RFRA and their role in interpreting the free exercise clause of the First Amendment.

In deciding what conduct by the government invokes free exercise review, the courts have every reason to be cautious in identifying and invalidating infringements of fundamental rights. The consequences of constitutional errors are hard to monitor and the decisions themselves are difficult to correct. As UCLA law professor Eugene Volokh has argued, however, religious liberty statutes are more easily modified and amended. Congress can recognize and respond to new information and correct statutory errors much more effectively than constitutional courts can alter fundamental rights doctrine. Thus, courts do not have to be as wary in interpreting religious liberty statutes as they are in interpreting the First Amendment, and the Ninth Circuit need not have been shy about implementing RFRA in a robust way.

More importantly, it is not the courts' job to repeal or amend statutes in the process of interpreting them, even when the statutory terms are broad or hard to effectuate. We believe the Ninth Circuit's definition of substantial burden is unreasonably restrictive, but even if we are wrong about this as a public policy matter, one point should be clear: From a separation of powers perspective, federal courts should not be substituting their own narrow understanding of what constitutes a substantial burden for the more expansive meaning that Congress intended.

If Congress wants to deny Native American religions, and other faiths, the opportunity to challenge government decisions that physically prevent the practice of their religion under RFRA, it knows how to accomplish that result through the legislative process. There is no good reason for the federal courts to take on that responsibility as a matter of judicial interpretation.

Vikram David Amar is Associate Dean for Academic Affairs and a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law. He has participated in the preparation of amicus briefs in the Navajo Nation case at the certiorari stage.

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