I think Prof. Berg hits it about right as far as the possible breadth
of the decision, but, as is common, we don't really know what it means
until the next case. For my part, I don't read the court language as
very broad at all and I read the case as easily distinguishable from
most cases Christians would bring.
I think this case is just another in the line of cases which limit
Constitutional protection to land-based and pagan earth worship-based
claims in the face of even modest governmental interests with respect
to the land.
Understood in context of the facts of the case, the troublesome phrase
is much, much more limited. The court seems to be saying that since
there is no claim that is cognizable with respect to something real in
which there is a protected interest, we are not going to protect
against feelings being hurt.
Surely this is correct or we end up with a unit veto problem not based
just on exercise=action, but on subjective feelings and beliefs.
Going back to Reynolds, one comes back to distinction between being
able to believe or feel anything or emotionally respond to actions in
any way you want, but the government can limit your action -- your
acting on those beliefs, feelings, and emotional responses.
The court did not say "you can't treat the mountain as holy" nor did
it say "you cannot feel emotionally and spiritually wounded because of
the recycling of water" -- it just said that the right of free
exercise (constitutional or RFRA-based) does not extend that far.
So, I think it has next to no significance to Christianity in general
-- except perhaps the next manifestation of the Virgin Mary bleeding
from a tree about to be cut for lumber would not be protected under
RFRA.
Steve
On Jun 12, 2009, at 2:11 PM, Berg, Thomas C. wrote:
Ted,
A group of religious liberty scholars (several of them on this list,
including me) filed an amicus brief supporting the cert petition
arguing that the standard the 9th Circuit used to dismiss this case
(for lack of a substantial burden under RFRA) could have far-
reaching effects, including on cases involving prisoner religious
claims and church land-use claims. http://narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf
There was a similar brief from religious organizations, all of
them Christian. http://narf.org/sct/navajonationvusfs/amicus_of_religious_organizations.pdf
If the 9th Circuit follows its language broadly, the effects could
be large. If it limits its rule to federal-land issues or
allegedlly purely spiritual harms, the effects on serious religious
claims of non-Native-American faiths will probably be smaller.
-----------------------------------------
Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/
>
----------------------------------------------------------------------------
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu
] On Behalf Of Ted Olsen [tol...@christianitytoday.com]
Sent: Friday, June 12, 2009 12:33 PM
To: Religionlaw@lists.ucla.edu
Subject: Snowbowl decision
The Snowbowl decision (Navajo Nation v. Forest Service, denied cert.
this week by scotus) appears significant for religion clause
discussions and seems like it could be good fodder for a discussion
in my magazine (Christianity Today). But the significance to
Christianity is not immediately apparent to me.
Any ideas?
The one I've thought about is looking again at the 9th Circuit
opinion (which, admittedly, is now a year old) and the questions it
raises about whether RFRA protects "subjective, emotional religious
experience." The court said diminishing "subjective, emotional
religious experience" (i.e. "damaged spiritual feelings") doesn't
constitute a substantial burden. The dissent said subjective
emotional religious experience is at the very core of religious
belief and practice and therefore deserves the highest protections.
That discussion could be interesting not just for the religion law
questions but because it connects to so many other ongoing debate
and questions (protecting "damaged spiritual feelings" in various
domestic laws and UN resolutions, the relationship between "heart"
religious expressions and "head" ones, e.g. Pentecostals feeling
like the red-headed stepchild of the evangelical movement or of
American Christianity in general, etc.)
But I'm no expert. Am I missing a more obvious implication of the
Snowbowl case on Christian faith and practice?
Ted Olsen
Managing Editor, News & Online Journalism
Christianity Today
http://www.christianitytoday.com/ct/
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--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Example is always more efficacious than precept."
Samuel Johnson, 1759
_______________________________________________
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