The Standing Rock Sioux’s RFRA request for a TRO is here: https://embed.contagiousmedia.com/embed/sub/item-ol3xgp-38nio?sb=10497046&cb=1486655474&rds=
They claim to own the waters of Lake Oahe, thus distinguishing unsuccessful religious liberty claims by tribes in Lyng, Navajo Nation, and Snoqualmie. Beginning at p.34, they also say that Navajo Nation and Snoqualmie (and by clear implication Lyng, although they don’t say that) are no longer good law. They are inconsistent with the passage in Hobby Lobby suggesting that the courts cannot inquire into the substantiality of any alleged burden on the exercise of religion. The Eighth Circuit was the only circuit to take those statements literally and at full value in the litigation culminating in Zubik, although this brief does not cite that case. Does anyone expect the courts in general, or the conservative Justices in particular, to adhere to Hobby Lobby’s view of burden in a case like this, where the political valences are reversed? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546
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