The U.S. Court of Appeals for the Ninth Circuit's En Banc Rehearing in the Navajo Nation Case:
Striking the Difficult Balance Between Religious Liberty and Law

By VIKRAM DAVID AMAR
Friday, Oct. 26, 2007
Last week, the Ninth Circuit Court of Appeals decided to rehear en banc an important case involving the difficult balance between religious liberty and government regulation. (In the Ninth Circuit, en banc rehearing is rehearing before a panel of judges composed of 11 members of the Court.)

The case pits various Indian tribes (led by the Navajo Nation) against the United States Forest Service. It centers on the Forest Service's decision to authorize a ski area in the Coconino National Forest in Arizona to expand and upgrade its facilities, and to make artificial snow from reclaimed water -- that is, recycled sewage effluent. The tribes object to what they view as the sullying of the mountain ski area sacred to them.

A three-judge panel ruled last spring that the tribes had a right to block the Forest Service's decision under the federal Religious Freedom Restoration Act (RFRA). In this column, I will consider the important issues the case raises.

Background: The RFRA and Supreme Court Precedent on the Religion Clauses

As my fellow columnist Michael Dorf explained in a prior column for this site the RFRA was enacted in the early 1990s, in response to the Supreme Court's decision to change the way it had been weighing religious exercise and the needs of government.

In the 1960s, 1970s and 1980s, the Supreme Court had said that when a person's sincerely-held religious beliefs required him to engage in or refrain from certain conduct, that conduct (or lack thereof) would be exempt from otherwise valid general laws under the so-called Free Exercise Clause of the First Amendment -- unless the government could show that it had a "compelling interest" that would be sacrificed if the religious adherent were given an exception from the law. (This test is also known as a form of "strict scrutiny.") Although this test was often not taken as seriously by courts as its rigorous language would suggest, it did give religious claimants a very meaningful legal bargaining chip, and held out the prospect of possible victory for them in court if the government declined to accommodate a given exercise of religion.

However, in 1990, in Employment Division v. Smith, the Supreme Court essentially abandoned this "strict scrutiny" protection for religious claimants. Instead, it held (with a few qualifications) that as long as a government law is not inspired by an anti-religious sentiment, and is neutral and generally applicable on its face, the fact that it might in its operation burden religiously-inspired or religiously-required conduct does not implicate the Free Exercise Clause, and does not require any exemptions. That is in part, wrote Justice Scalia for the Smith Court, because a regime of First-Amendment-required exceptions would make every person "a law unto himself.".

Congress apparently didn't think much of the Court's work product in Smith, and passed the RFRA in 1993. Finding that "the compelling interest test set forth in [] Federal court rulings [prior to Smith was] a workable test for striking sensible balances between religious liberty and competing prior government interests," Congress statutorily restored the compelling interest test for government actions that substantially burden religious exercise. Congress also made clear the test should apply even when the government law that is doing the burdening is generally applicable, and is not motivated by a hostility to religion. Under RFRA, whenever a government action substantially burdens religious exercise, it can be enforced only if it is the "least restrictive means of furthering [a] compelling governmental interest."

In 1997, the Supreme Court held the RFRA itself unconstitutional as applied to state governments, in City of Boerne v. Flores. In other words, the Court held that Congress lacked the power to require state governments to grant exemptions to religious claimants from generally applicable state laws. In contrast, in 2006, the Supreme Court seemed to affirm RFRA's vitality as applied to the federal government in Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal.

The bottom line, then, is that the federal government, through its laws, regulations and policies, cannot substantially burden religious exercise, unless it has a compelling interest that can be accomplished only by overriding the religious claimant's objections.

The Three-Judge Ninth Circuit Panel's Analysis of Amendments to RFRA

As noted above, RFRA is the law under which the Indian tribes prevailed in the Navajo Nation case. The tribes claimed that the ski resort area held special religious significance to them and that the use of recycled water for artificial snow degraded this sacred area and made it less usable for religious services and observances. On this basis, they convinced the three-judge Ninth Circuit panel to apply the compelling interest test of RFRA.

Under that test, Judge William Fletcher wrote on behalf of the panel, the government's interest in facilitating expansion of the ski area was not compelling; there were other, less religiously-intrusive ways the government could go about making good use of this National Forest property.

Judge Fletcher's opinion and analysis are important for a number of reasons, some of which may explain why the Ninth Circuit has decided to take this case en banc. (When a circuit decides to rehear a case already heard by a three-judge panel en banc, it does not publicly give its reasons. In practice, though, en banc review is generally reserved for cases that raise particularly important legal questions, or cases that might conflict with earlier rulings of the same circuit, or rulings from other circuits.)

First off, Judge Fletcher points out, and makes use of, a fact very few courts and commentators have even noticed, yet alone analyzed: In 2000, when it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), Congress amended the RFRA in potentially important ways.

The RLUIPA was in some respects Congress' reaction to the Supreme Court's 1997 decision in City of Boerne to invalidate the RFRA as applied to state and local governments. In RLUIPA, Congress attempted to reapply the compelling interest test to state and local laws, at least when the religious claimants are persons who object to land use regulations or are prisoners in state facilities.

But RLUIPA did more than that: It also tweaked RFRA's definition of what kind of "exercise of religion" can support a RFRA plaintiff's claim.

Pre-1990 Supreme Court doctrine interpreting the First Amendment's Religion Clauses-- and by statutory directive, RFRA cases between 1993 and 2000 -- had both recognized a religious claimant's arguable right to be exempt only when the religious activity in question was mandated by or (at the very least) central to the claimant's religion. In contrast, the RLUIPA defines the protected "exercise of religion" for purposes of both RLUIPA and RFRA to "include[] any exercise of religion, whether or not compelled by, or central to, a system of religious belief."

This could be a very significant broadening of religious liberty, and one with which the courts haven't yet really grappled. (Indeed, I could find only one other federal Court of Appeals decision besides Navajo Nation that noted this 2000 change in RFRA's definition of religious exercise. Multiple post-2000 cases from federal courts seem to have missed this amendment -- evaluating RFRA claims based on a requirement that the plaintiff's exercise need be required by, or at least central to, his religion.)

After 2000, though, a wider range of religious sensibilities are protected. If a person's religion even mildly inclines him to do something, then that activity could still be protected -- and might compel a government exemption - notwithstanding the fact that it lies at the outer boundary of the person's religious belief system.

Another Key Question: Does RFRA, As Amended, Violate the Establishment Clause?

Second, and related, this broad definition of religious exercise raises the question of whether the RFRA, as amended by RLUIPA, runs afoul of the First Amendment's Establishment Clause by accommodating religion (but not other deeply- felt beliefs and practices) too much.

In Cutter v. Wilkinson, the Supreme Court rejected the claim that RLUIPA necessarily violated the Establishment Clause. However, RFRA's application to the federal government is much broader than the scope of RLUIPA: RFRA applies to all of the federal government's activities, not just its land use regulation or prison administration. And this breadth might raise a more significant Establishment Clause issue.

This is especially true in a case like Navajo Nation, where accommodating one person's religion means imposing burdens on other persons (in this case, the ski area operator and the skiers who wanted more skiing and more snow.)

How Heavily Should Third-Party Burdens Be Weighed in the Case?

This leads to a third reason the Navajo Nation ruling was interesting and important, and warranted en banc review. Judge Fletcher's opinion, in dealing with the meaning of RFRA and the possible Establishment Clause/excessive accommodation issue, doesn't spend much time confronting the way in which RFRA's application here imposes burdens on third-parties - to wit, the ski area operator and the skiers. Rather, the opinion analyzes the issue as primarily between the government and the tribes.

And yet, consideration of third parties has always seemed to be an important part of the Establishment Clause analysis. Consider, for example, cases like Cutter, where the Supreme Court noted that accommodating the religious desires of some prisoners does not impose substantially on other prisoners, and Bullock v. Texas Monthly, where the Court held that giving tax exemptions to some religious speakers is problematic in significant measure because it requires other taxpayers to make up the deficit.

In the Navajo Nation case, there are of course (as Judge Fletcher points out) other uses, besides more skiing, to which the National Forest land can productively be devoted. But do these other uses raise as much revenue? Do they generate as much enjoyment? Do they contribute to the local job base as much? Such third-party effects are ones the en banc panel may very well investigate (or ask the district court to address in a possible remand) in deciding whether the government has met its burden here, and whether accommodating the Indians is both required and permissible.

The Complex Application of RFRA When the Government Acts as Property Owner

Fourth, and finally, the Navajo Nation case illustrates the complexity of RFRA when the federal government is acting not as regulator, but as owner of property. There may well be an argument that when the government is deciding how to use its property,

and who should be able to use it, the government should be required to accommodate religion less than when it is regulating a private person and/or his own property. (Indeed, RLUIPA seems to embrace this distinction insofar as the "land use regulations" to which it applies are limited to land use regulations of privately-owned interests in land, not policies involving government management of its own lands.)

This distinction between regulator and land owner might have been the message of Lyng v. Northwest Indian Cemetery Association, a pre-Smith Supreme Court case Judge Fletcher had to discuss and distinguish. There, the Supreme Court rejected Indian religiously-based objections to the federal government's construction of a six-mile road on federal land that also had been used by Indians for religious purposes.

Even if the federal government should have more leeway as landlord than regulator, an issue on which the three-judge Navajo Nation panel did not really weigh in, things get tricky in cases involving Indians. Why? Because Indians/Native Americans use federal land for religious purposes out of necessity. Their religious belief systems are often land- and nature-based, and federal lands are often where the nation has (re)located them. So it's hardly fair to Indians to have a bright-line rule that government need not be sensitive to religion when it's managing its own land (even though the Supreme Court opinion in Lyng might be read that way).

It'll be interesting to see how the Ninth Circuit en banc panel resolves all these difficult concerns and arguments. Depending on what the panel decides, this case may have to be considered by the Supreme Court. If that happens, we might learn more about what the two newest members of the Court, Chief Justice Roberts and Justice Alito, think about these matters.


Vikram David Amar is 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.