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March 22, 2007

The Larger Impacts of the Snowbowl Ruling

The Snowbowl decision has some wide ranging impacts. This opens an entirely new door to challenge construction projects, roads, permits, and so on. Come up with a religion and find a way to claim that a project substantially burdens you from exercising that religion, and the RFRA affords you the same rights as the gave the tribes--to shut down construction.

I have posted the ruling here in its full text as a .pdf. I won't rehash the entire ruling, but almost the entire thing was based on the Religious Freedom Reform Act of 1993. The conclusion of the ruling is:

In sum, we reverse the district court on two grounds. First, we hold that the Forest Service’s approval of the proposed expansion of the Snowbowl, including the use of treated sewage effluent to make artificial snow, violates RFRA. Second, we hold that the Forest Service’s FEIS does not fulfil its obligations under NEPA because it neither reasonably discusses the risks posed by the possibility of human ingestion of artificial snow made from treated sewage effluent nor articulates why such discussion is unnecessary. We affirm the district court’s grant of summary judgment on Appellants’ remaining four NEPA claims and on their NHPA claim.

Note that the RFRA does not just apply to Native American religions, but to any religion. There is no test on what religions are valid or not. One religion is no more or less valid in the eyes of the government, so our only requirement under the RFRA is to demonstrate that our religion is substantially burdened and the government did not use the least restrictive means and/or did not have a compelling government interest burdening us. This case allows ANY CHURCH OR RELIGION THE SAME RIGHTS AS THE HOPIS AND NAVAJOS have to stop any construction on Federal Land that they deem impacts their religion. And Congress expanded the definition of religion even further to mean just about anything. Quote from the Snowbowl ruling:

Finally, and perhaps most important, Congress expanded the statutory protection for religious exercise in 2000 by amending RFRA’s definition of “exercise of religion.” Under the amended definition — “any exercise of religion, whetheror not compelled by, or central to, a system of religious belief” — RFRA now protects a broader range of religious conduct than the Supreme Court’s interpretation of “exercise of religion” under the First Amendment.

Did you catch that? "Any exercise of religion, whether or not compelled by, or central to, a system of religious belief" is protected by the RFRA. Now, I know folks didn't come here to have Justin lecture on Constitutional Law. So I won't. I will let Justice Kennedy from the 1997 Supreme Court case City of Boerne v. Flores which was a Catholic Church that tried to use the RFRA to overturn a denied building permit. Apparently they believed that the law gave them the right to ignore local building ordances because their worship required a larger church and the City of Boerne imposed a substantial burden without considering the least restrictive means as is required under the RFRA by denying their request to renovate a historical landmark.

Respondent and the United States as amicus contend that RFRA is permissible enforcement legislation under. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e.g., Cantwell v. Connecticut, its power "to enforce" is only preventive or "remedial," South Carolina v. Katzenbach. The Amendment's design and text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment's restrictions on the States. Legislation which alters the Free Exercise Clause's meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is...

RFRA is not a proper exercise of Congress' enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal state balance. An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequent voting rights cases. In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary in those cases, RFRA's legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. RFRA's most serious shortcoming, however, lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. Its restrictions apply to every government agency and official and to all statutory or other law, whether adopted before or after its enactment. It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. See Smith, supra, at 887.

Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law... All told, RFRA is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.

The following comments are taken from a debate in which the lawyer for the City of Boerne made the case against the RFRA:

If upheld, the Religious Freedom Restoration Act will transform our society from one in which churches are expected to be fair-minded members of their respective communities to one in which churches hold the upper hand, whether the issue is zoning, prison regulation, or taxation. RFRA's disdain for the rule of law and for a responsible role for churches is certain to engender less, rather than more, religious tolerance. It is unfortunate that it was drafted in such legalistic terms and therefore is largely inaccessible to the people, who should understand what has hit them.

If you look at the record of the Constitutional Convention, the one word you will see over and over again is "tyranny." The Framers recognized that tyranny is possible when you have great concentrations of power, and they agreed that the way to avoid tyranny was to divide and decentralize power. They did that in the Constitution of the United States.

The three most important structural safeguards in the Constitution are the separation of the powers of the three federal branches; federalism, which separates the powers of the federal government and the states; and the establishment clause, which separates the powers of church and state. RFRA crosses all three boundaries simultaneously...

To understand RFRA you have to understand its scope. The act applies to every law in the United States, whether it was drafted and enacted by a city, a state, a municipality, or the federal government, and whether or not it is a written law. It also applies whether the law was passed before or after RFRA. In other words, this act intends to be the structural equivalent of the Constitution. No other law in this country has that scope. Congress has never before passed a law that has such scope, and RFRA's scope is the prime indicator that what Congress in fact is trying to do is to displace the judiciary's decision with its own policy determination that a different standard ought to be applied in cases involving religious freedom.

These are not my arguments, but those of the City of Boerne and of Justice Kennedy. But according to several commenters, I am a racist for agreeing with them. We are all racists for not bowing down under the weight of the RFRA. We are racists for not putting religion above all other needs of our society.

This case is not about the Hopis or the Navajos. Again, as I have said, they are simply tools in the grand scheme of things. This is about the Sierra Club and their agenda to stop most projects on Federal Land and in that light, this ruling gave them massive new power. Find a religion that somehow has a practice that might be burdened by the project and fund an RFRA lawsuit in their name to stop it. Make the courts decide if there is a compelling state interest and if the least restrictive means test applies. These are impossible burdens and now this allows almost anyone to tie up almost any project in another massive round of lawsuits. Instead of just preparing Environmental Impact Statements, every project will have to go out to every single religion and ask, "Are we going to burden you? Is there a compelling interest for our project? Is there a least restrictive means to accomplish that?"

Posted by Justin at March 22, 2007 10:11 AM