"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 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.

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."

Get the Story:
Vikram David Amar and Alan Brownstein: 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 (Findlaw 2/17)

9th Circuit Decision:
Navajo Nation v. US Forest Service (August 8, 2008)

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Tribes weigh next move in sacred site case (10/23)
Indian religious rights cases on high court's horizon (10/21)
9th Circuit delays ruling in sacred site case (10/06)
Interview: Attorney in San Francisco Peaks case (8/22)
Appeals court reverses course on sacred site (8/12)