Desecration Mountain

The Ninth Circuit Court of Appeals, sitting en banc, recently decided a interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. Appartently the government planned to use recycled wastewater, which contains 0.0001% human waste,and would, therefore,desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.

The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentiall, no such claim could be brought against neutral laws of general applicability under the Constitution's free exercise clause.

The court (over three dissents) rejected the challenge. That doesn't surprise me, but I am interested in the court's reasoning. It found that there was not substantial burden - essentially because the only harm to the Navajos was to their "subjective spiritual experience."

I can understand the attraction of this position. The majority obviously feared the slippery slope and the result was consistent with an earlier Supreme Court decision under the free exercise clause. But does it make sense to say that a government action that desecrates a sacred object does not substantially burden religious practice? The court claimed that the Navajos would still have access to the mountain for worship, but was the court in any position to contradict the Navajos' claim that their worship was substantially impaired? Normally, courts don't second guess litigants claims about what their religion requires.

It is, I think, the fear of this type of case that underlies the Supreme Court's rule in the free exercise context. It seems to me that the Navajos' religious practices have been substantially burdened, but requiring the government to demonstrate a compelling interest in cases like this would be unworkable.