In the coming weeks, the Supreme Court is expected to decide whether to accept Navajo Nation v. U.S. Forest Service, the RFRA case in which the 9th Circuit decided an Arizona ski resort was not substantially burdening the religion of Native American tribes by contaminating spring water they consider sacred. The Snowbowl's plans to make snow from "reclaimed water" (read, treated sewage) was challenged under the federal Religious Freedom Restoration Act, since the land is owned and leased by the Forest Service.
In an article today at findlaw.com, professors Vikram Amar and Alan Brownstein discuss the issues of the case and argue that the appeals court's ruling is "in serious error" and should be corrected. Most specifically, their definition of "substantial burden" – the authors claim – is plainly insufficient and misses the point of the religious freedom legislation.
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.
