A year ago, a 3-judge panel of the 9th Circuit Appeals Court agreed with the Najavo plaintiffs that plans to expand Arizona's Snowbowl ski resort, in mountains sacred to many Native American tribes, violates their rights under the Religious Freedom Restoration Act. But Friday, the en banc court reversed that decision, ruling 8-3 that the use of recycled waste water to generate imitation snow – and potentially contaminate the waters the Navajo use in their religious ceremonies – would only offend their sensibilities, not burden their exercise. From the decision:
[T]he 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"… 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.
Among the arguments in Judge Fletcher's dissent is the view that the majority's opinion "misunderstands the very nature of religion."
The majority's misunderstanding of the nature of religious belief and exercise as merely "subjective" is an excuse for refusing to accept the Indians' religion as worthy of protection under RFRA. According to undisputed evidence in the record, and the finding of the district court, the Indians in this case are sincere in their religious beliefs. The record makes clear that their religious beliefs and practice do not merely require the continued existence of certain plants and shrines. They require that these plants and shrines be spiritually pure, undesecrated by treated sewage effluent.
The ruling is interesting to read in light of this post from October, speculating that the outcome could have a great impact on the way RFRA is adjudicated. The Arizona Republic story on the decision is here.
