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Making snow in the desert
Knapp, Jonathan
Knapp, Jonathan
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Abstract
"In this Note I argue that although the Ninth Circuit ultimately reached the correct conclusion in Navajo Nation v. United States Forest Service—that the Religious Freedom Restoration Act of 1993 (“RFRA”) does not provide any more religious protection for sacred site claims than the Free Exercise Clause of the First Amendment—the case reflects the pressing need for clarification as to how injury or burden should be analyzed under the Act. Despite RFRA’s lofty goal of repairing the damage to religious liberty caused by the United States Supreme Court’s decision in Employment Division v. Smith, as the Act is purposely ambiguous concerning the meaning to be supplied to all of its critical terms, such as what types of governmental action “substantially burden” the free exercise of religion, Congress simply returned a number of intractable issues to the courts. This lack of formal guidance in RFRA has resulted in pervasive confusion over how the term “substantial burden” should be defined and analyzed, conflict between appellate courts, and ultimately, profound limitation of the statute’s success. In advance of possible Supreme Court review of Navajo Nation, this article provides a frame of reference for understanding why interpretation of the term “substantial burden” has generated so much confusion and discord by examining ambiguities in RFRA’s operative provisions and tensions in the Supreme Court’s free exercise decisions over what constitutes a burden on the free exercise of religion." (p. 1)
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2009
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With permission of the license/copyright holder