The Supreme Court’s decision in Burwell v.Hobby Lobby, which held that the Affordable Care Act’s “contraceptive mandate” violated the Religious Freedom Restoration Act when applied to certain closely-held corporations, generated strong reactions from every corner of the political realm. The religious right and anti-abortion camps claimed it as a definitive victory for religious freedom and a blow to governmental interference with core religious beliefs. Advocates for women’s rights and the ACA decried it as a blatant attack on women’s health and family planning.
While the right cheered and the left wept, advocates for native religious rights were left scratching their heads. After all, Indian tribes and their members have attempted to use RFRA since it was enacted to protect sacred lands from desecration, maintain access to religious sites, and otherwise protect their religious freedoms, only to be told over and over again that the challenged government activity did not impose a substantial burden on their free exercise of religion.
Take the recent San Francisco Peaks case. There, the Ninth Circuit Court of Appeals held that placing treated sewage effluent on the slopes of a mountain in northern Arizona imposed no substantial burden on the religious free exercise of the Navajo, Havasupai, Hualapai, Hopi, White Mountain Apache, Yavapai-Apache, and other area tribes who hold the mountain sacred. The court reasoned that the “recycled wastewater,” which was made into artificial snow for a ski resort, would be applied only to a small portion of the mountain, and the tribes could still access other parts of the mountain to perform religious ceremonies. Even though the use of treated sewage effluent would “spiritually desecrate” a sacred mountain, the court held that such desecration did not amount to a “substantial burden” on the tribes free exercise of religion.
Given this history, it was surprising, to say the least, to hear the Supreme Court declare that the ACA’s contraceptives mandate was a substantial burden on the religious free exercise of several corporations because, under the mandate, one of the company’s employees might someday use that coverage to purchase contraceptives believed to be immoral by the company’s owners. Compared with the desecration of a sacred mountain, this “burden” on the company’s owners seems slight at best. But the Court went even further; it declared that the Court had no business judging whether a burden on religion was substantial or not. According to the Court, only a practitioner can make that determination, and the Court has to accept it as long as it represents “an honest conviction.”
One can’t help but wonder, if the courts were to reconsider the San Francisco Peaks case today, after Hobby Lobby, would the outcome be different?
It certainly should be. The tribes there clearly believe that the federal government’s action—authorizing the use of treated sewage effluent to make artificial snow on a sacred mountain—imposes a substantial burden on their religious practice and beliefs. If it’s not the court’s job to second-guess that determination, then the next question under Hobby Lobby is whether the government has a compelling interest in providing the residents of northern Arizona with access to ski facilities. Even assuming it does (a questionable assumption at best), the tribes should still win because RFRA prohibits the federal government from imposing a substantial burden on religious practitioners if it could carry out this “compelling interest” in some less burdensome way. And, under Hobby Lobby, a “less burdensome” alternative exists as long as the federal government could achieve its goal in some other way, even if that means it has to spend more of its own money to do so.
In the case of the San Francisco Peaks, there are any number of ways the federal government could advance its asserted interest in Arizona skiing without burdening the tribes’ religious practices. The government could pay for non-recycled water to make artificial snow. It could give each Arizonan ski vouchers to other resorts. Less burdensome alternatives abound when you have the United States Treasury at your disposal.
At the end of the day, Hobby Lobby comes too late for the San Francisco Peaks. The “Snowbowl” ski area started making and using “recycled” snow in December 2012. (Early news articles reported that the snow turned out—surprise!—yellow.) However, other native RFRA claims remain to be tried. We will see if this and future Courts will have the courage and intellectual honesty to apply the same reasoning to tribal claims as they applied to the non-native petitioners in Hobby Lobby.
Winter King is a partner at Shute, Mihaly & Weinberger LLP, a San Francisco law firmdedicated to representing tribal governments on a wide array of issues, including jurisdictional, environmental, cultural resource, and land use issues. You can contact Ms. King at email@example.com.