Posted by Eugene Volokh:
Very Interesting Religious Accommodation Case from the En Banc Ninth Circuit:
http://volokh.com/archives/archive_2008_08_03-2008_08_09.shtml#1218240786
It's [1]Navajo Nation v. U.S. Forest Service; I haven't yet read the
whole opinion (I'm on a trip), but here are the opening paragraphs:
In this case, American Indians ask us 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. At the heart
of their claim is the planned use of recycled wastewater, which
contains 0.0001% human waste, to make artificial snow. [Footnote:
It appears that some of the Plaintiffs would challenge any means of
making artificial snow, even if no recycled wastewater were used.]
The Plaintiffs claim the use of such snow on a sacred mountain
desecrates the entire mountain, deprecates their religious
ceremonies, and injures their religious sensibilities. We are
called upon to decide whether this government-approved use of
artificial snow on government-owned park land violates the
Religious Freedom Restoration Act of 1993 (�RFRA�), 42 U.S.C. §§
2000bb et seq., the National Environmental Policy Act of 1969
(�NEPA�), 42 U.S.C. §§ 4321 et seq., and the National Historic
Preservation Act (�NHPA�), 16 U.S.C. §§ 470 et seq. We hold that
it does not, and affirm the district court�s denial of relief on
all grounds.
Plaintiff Indian tribes and their members consider the San
Francisco Peaks in Northern Arizona to be sacred in their religion.
They contend that the use of recycled wastewater to make artificial
snow for skiing on the Snowbowl, a ski area that covers
approximately one percent of the San Francisco Peaks, will
spiritually contaminate the entire mountain and devalue their
religious exercises. The district court found the Plaintiffs�
beliefs to be sincere; there is no basis to challenge that finding.
The district court also found, however, that there are no plants,
springs, natural resources, shrines with religious significance, or
religious ceremonies that would be physically affected by the use
of such artificial snow. No plants would be destroyed or stunted;
no springs polluted; no places of worship made inaccessible, or
liturgy modified. The Plaintiffs continue to have virtually
unlimited access to the mountain, including the ski area, for
religious and cultural purposes. On the mountain, they continue to
pray, conduct their religious ceremonies, and collect plants for
religious use.
Thus, the sole effect of the artificial snow is on the Plaintiffs�
subjective spiritual experience. That is, the presence of the
artificial snow on the Peaks is offensive to the Plaintiffs�
feelings about their religion and will decrease the spiritual
fulfillment Plaintiffs get from practicing their religion on the
mountain. Nevertheless, a government action that decreases the
spirituality, the fervor, or the satisfaction with which a believer
practices his religion is not what Congress has labeled a
�substantial burden� -- a term of art chosen by Congress to be
defined by reference to Supreme Court precedent -- on the free
exercise of religion. Where, as here, there is no showing the
government has coerced the Plaintiffs to act contrary to their
religious beliefs under the threat of sanctions, or conditioned a
governmental benefit upon conduct that would violate the
Plaintiffs� religious beliefs, there is no �substantial burden� on
the exercise of their religion.
Were it otherwise, any action the federal government were to take,
including action on its own land, would be subject to the
personalized oversight of millions of citizens. Each citizen would
hold an individual veto to prohibit the government action solely
because it offends his religious beliefs, sensibilities, or tastes,
or fails to satisfy his religious desires. Further, giving one
religious sect a veto over the use of public park land would
deprive others of the right to use what is, by definition, land
that belongs to everyone.
�[W]e are a cosmopolitan nation made up of people of almost every
conceivable religious preference.� Braunfeld v. Brown, 366 U.S.
599, 606 (1961). Our nation recognizes and protects the expression
of a great range of religious beliefs. Nevertheless, respecting
religious credos is one thing; requiring the government to change
its conduct to avoid any perceived slight to them is quite another.
No matter how much we might wish the government to conform its
conduct to our religious preferences, act in ways that do not
offend our religious sensibilities, and take no action that
decreases our spiritual fulfillment, no government -- let alone a
government that presides over a nation with as many religions as
the United States of America -- could function were it required to
do so. Lyng v. Nw. Indian Cemetery Protective Ass�n, 485 U.S. 439,
452 (1988).
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DFEB53892B27DCEF8825749E007B1851/$file/0615371.pdf?openelement
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