Religious Freedom and Government Property

First, Judges Nelson and Berzon requested whether or not the Supreme Court docket’s 1988 choice in Lyngv. Northwest Indian Cemetery controls the which means of “substantial burden” in RFRA. In Lyng, the Supreme Court docket rejected a declare that the federal government violated the Free Train Clause by authorizing the paving of a street in a forest sacred to Native People.

However Lyng differs from the Apache Stronghold case in two respects. Factually, the street at difficulty in Lyng would not be constructed over the plaintiffs’ sacred websites, however a half-mile or extra away—leaving the plaintiffs free to proceed visiting their websites and fascinating in the identical spiritual workout routines as earlier than. They alleged as an alternative that the sound of the street close by would diminish the “efficacy” of their practices—a non secular query that Lyng mentioned civil courts “can’t … measur[e].”

Extra importantly, Lyng was determined beneath a distinct authorized commonplace—the Free Train Clause, not RFRA. And issues distinctive to the Free Train Clause drove the Court docket’s choice. For instance, Lyng repeatedly emphasised that the “essential phrase within the constitutional textual content”—and, thus, within the Court docket’s evaluation—”is ‘prohibit'”—a phrase that is not utilized in RFRA. And Lyng repeatedly contrasted legal guidelines that “prohibit” faith with legal guidelines which have solely “incidental results” on faith. In different phrases, the choice to construct a street wasn’t concentrating on faith; the spiritual harms had been merely “incidental results” of a broader “authorities program[],” requiring no heightened evaluate.

This concept—that the set off for heightened evaluate beneath the Free Train Clause is an absence of neutrality—grew to become the centerpiece of the Court docket’s method to the Free Train Clause two years later in Employment Division v. Smith. And one of many main instances Smith relied on for this rule was Lyng.

RFRA, in contrast, expressly rejects the excellence between focused and incidental burdens on spiritual train. Certainly, the entire level of the statute was to use strict scrutiny “in all instances the place free train of faith is considerably burdened”—”even when the burden outcomes from a rule of basic applicability.” 42 USC 2000bb(b)(1), 2000bb-1(a).

Neither is Smith the one case to grasp Lyng as being about neutrality and basic applicability. Each Supreme Court docket free-exercise case since Lyng has characterised it for instance of Smith‘s neutral-and-generally-applicable commonplace in motion—from Trinity Lutheran to Espinoza to Fulton—with Trinity Lutheran citing it because the main instance of how the Court docket, in making use of the Free Train Clause, has been “cautious to differentiate” between legal guidelines which are “impartial and customarily relevant” and legal guidelines “that single out the spiritual for disfavored remedy.”

Different circuits have achieved the identical. In Tenafly Eruv Affiliation v. Borough of Tenafly, for instance, Orthodox Jews sought entry to government-controlled utility poles to create an eruv—a ceremonial space inside which Orthodox Jews can carry objects throughout the Sabbath. When the federal government refused and was sued beneath the Free Train Clause, it defended primarily based on Lyng, claiming that Clause doesn’t apply to burdens ensuing from authorities administration of “its land.” However the Third Circuit disagreed, noting that Lyng was a case about neutrality, not nearly authorities land—and that the Free Train Clause “applies not solely when a coercive legislation or regulation prohibits spiritual conduct, but additionally when authorities denies spiritual adherents entry to publicly accessible cash or property.”

Second, Choose VanDyke supplied a number of hypotheticals probing the position of alleged non secular hurt within the “substantial burden” evaluation.  For instance, would a considerable burden come up merely if somebody believes they may go to hell if the federal government would not promote them a selected piece of land?  However that and related questions conflate two distinct points—the non secular penalties to a non secular believer from not participating in a non secular train, and the goal impediment the federal government locations in the best way of that train. The right focus of the substantial-burden inquiry is on the latter—asking what the federal government has achieved to make the plaintiff’s spiritual train objectively extra expensive or tough.

Take Pastime Foyer for instance. The burden there wasn’t the divine wrath the enterprise homeowners believed they may endure in the event that they coated abortifacients of their insurance policy. Reasonably, the burden was that the federal government made their spiritual train extra expensive by threatening massive financial penalties. Equally, the burden in Yoder wasn’t the dreaded corruption of the Amish youngsters’s souls from attending public college; it was that the federal government made their spiritual follow—foregoing public training—objectively tougher by imposing prison fines.

So too in Apache Stronghold: The burden is not the non secular ache the Apaches will really feel when their sacred web site is destroyed.  It is that the federal government makes it objectively tougher to interact of their spiritual train by permitting a mining firm to explode their sacred web site.

Whereas specializing in alleged non secular harm may appear superficially sympathetic to spiritual liberty claims, furthermore, it could truly hurt spiritual liberty in the long term. One purpose is that figuring out whether or not specific non secular penalties depend as a considerable burden would enmesh courts in spiritual questions. (Would the plaintiff in Choose VanDyke’s hypothetical actually go to hell? Would the Pastime Foyer plaintiffs actually be complicit in abortion?)  That method would additionally create immense stress on courts to search out different (atextual) methods to curtail RFRA—which is what the federal government requested courts to do (unsuccessfully) within the contraception-mandate litigation.

Choose VanDyke requested about one attainable curtailment: merely deem some substantial burdens not “cognizable” beneath RFRA in the event that they end result from sure varieties of federal motion—equivalent to a call about the usage of federal land. However this novel concept runs headlong into RFRA’s textual content—which says it applies to “all Federal legislation, and the implementation of that legislation, whether or not statutory or in any other case.”

That concept additionally lacks any obvious foundation in precept. If something, the federal authorities ought to have much less discretion in managing public lands than in imposing its prison legal guidelines, defending public well being and security, or working high-security prisons—all of that are already topic to RFRA. As Justice Scalia mentioned in Smith: “it’s laborious to see any purpose in precept or practicality why the federal government ought to should tailor its well being and security legal guidelines to evolve to the range of non secular perception, however shouldn’t should tailor its administration of public lands” (citing Lyng).

And, if courts could make atextual, unprincipled carve-outs from RFRA for federal land, there isn’t any purpose they can not make related carve-outs for different disfavored spiritual liberty claims—equivalent to these alleged to trigger “third-party harms” (which the federal government and students requested the Court docket to carve out in Pastime Foyer) or these involving antidiscrimination legal guidelines.

The way in which to keep away from all that is to observe RFRA’s textual content and precedent—asking whether or not the federal government has made it objectively tougher for the plaintiff to interact within the specific spiritual train at difficulty. If that’s the case, the court docket ought to discover a substantial burden, irrespective of the type of the federal motion or the political valence of the case—after which let the federal government clarify why it believes the burden is nonetheless justified.

Lastly, Choose Collins inquired whether or not RFRA is relevant to the land-transfer in any respect, on condition that the switch is allowed by a statute enacted after RFRA, and within the occasion of a battle between two statutes, a later-enacted statute may be thought to trump an earlier-enacted one.

Notably, RFRA by its phrases expressly tells courts find out how to resolve this query—instructing that RFRA applies to later-enacted statutes except “such legislation explicitly excludes such utility by reference to this chapter.” However the authorities, maybe taking its cues from mining-interest amici, has supplied a late-breaking argument that this provision of RFRA is unconstitutional. However Congress’s categorical course, the federal government urges, a later-enacted legislation may be held to “impliedly” repeal RFRA with out mentioning it.

That argument can be devastating for spiritual liberty. For thirty years, Congress has legislated towards the background precept that RFRA applies to move off destructive penalties from later statutes except it’s expressly displaced. To carry this provision unconstitutional would come as a shock each to Congress and to proponents of non secular liberty—significantly after latest enactment of the Respect for Marriage Act, which was defended on the bottom that RFRA would nonetheless apply to it. It will additionally open up a wholly new entrance for spiritual liberty’s opponents—who can argue not solely {that a} later-enacted legislation complies with RFRA however that RFRA would not apply within the first place, as a result of Congress has (with out saying so) overridden it.

Such a end result would not empower Congress—which is properly conscious of RFRA’s explicit-reference provision and wishes nothing greater than a easy majority to adjust to it. It empowers judges—liberating them from the easy, slim inquiry of whether or not a later-enacted legislation refers to RFRA and as an alternative encouraging them to hunt for implied repeals within the later-enacted legislation’s penumbras and emanations. The Structure requires nothing of the type.

Nor does any countervailing precedent help the mining pursuits’ view. For instance, one in every of their lead instances is the Supreme Court docket’s 1955 choice in Marcello. However Marcello did not ignore or strike down a provision requiring that later departures be categorical—it utilized it. The sooner-enacted legislation there (the APA) mentioned it provided the process governing administrative litigation except a later-enacted legislation displaced it “expressly.” The later-enacted legislation, in the meantime, mentioned it provided the “sole and unique process” in deportation instances. The Supreme Court docket held that this language “expressly supersedes” the APA—not that the APA’s express-repeal provision was unconstitutional.

Fortuitously, we need not surprise concerning the Supreme Court docket’s views on this topic. As an vital amicus temporary explains, the Court docket has twice utilized RFRA’s explicit-reference provision in high-profile instances (Pastime Foyer and Little Sisters of the Poor). So has the Seventh Circuit, which in Korte v. Sebelius mentioned that RFRA “accounts for” the foundations governing the temporal allocation of legislative energy, since Congress stays free to repeal it at any time (by complying with the explicit-reference provision). Thus, to rule in any other case would each battle with the Supreme Court docket and create a novel circuit cut up.

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Briefly, RFRA’s textual content provides a easy reply to the query introduced in Apache Stronghold: The federal government “considerably burdens” spiritual train when it authorizes the whole bodily destruction of a Native American sacred web site, ending tribe members’ core spiritual workout routines perpetually. This does not imply the Apaches mechanically win their case; it simply means they get to the second step of the evaluation—the balancing check of strict scrutiny.

The federal government fears that making use of that check to federal land-use selections can be unworkable. However federal land-use selections are already topic to an alphabet soup of restrictive legal guidelines like NEPA, FLPMA, NHPA, NAGPRA, CWA, CAA, and ESA. For instance, if the mine on this case threatened an endangered snail darter, the undertaking could not go ahead beneath the Endangered Species Act in any respect—and the federal government would not even get an opportunity to fulfill strict scrutiny. So making use of RFRA to federal land-use selections nonetheless offers the Apaches’ elementary proper of non secular freedom much less safety than is already given to endangered animals.

The federal government’s coverage argument can also be the identical argument Congress rejected in enacting RFRA. The Supreme Court docket in Smith feared that making use of strict scrutiny to all governmental actions “throughout the board” can be “courting anarchy.” However Congress has advised the federal courts to not be afraid of strict scrutiny: it’s a “workable check for placing wise balances between spiritual liberty and competing prior governmental pursuits.”

The query is whether or not the Ninth Circuit will apply RFRA’s plain textual content or will as an alternative succumb to atextual, fear-based causes for limiting RFRA’s attain.