I appreciate Doug's bringing to our attention this material about RFRA and the Standing Rock litigation. In addition to the question of the Cheyenne River Sioux Tribe's interest in the property under Lake Oahe (the Tribe argues that this presents an important distinction from Lyng, which involved building a logging road through government owned property), there is also the question of whether any of the reasoning in Lyng (a free exercise decision from shortly before Emp. Div. v. Smith) should apply in a RFRA case. Recall what the Hobby Lobby opinion says about reasoning from pre-RFRA cases like U.S. v. Lee: ". . . the results would be absurd if RFRA merely restored this Court's pre- *Smith *decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before *Smith." * This line of argument facilitated (among other things) the Court's ignoring the teaching of U.S. v. Lee re: the consequence for religious freedom claims of a party's entering into the commercial marketplace. So it will indeed be interesting to see what role the Lyng opinion plays in the RFRA litigation about Standing Rock. As I recall, and Doug would know better, nothing in RFRA or its legislative history cast any doubt on whether Lyng had been correctly decided. And I thought that RFRA cases, involving Native American claims about interference with sacred sites on public lands before Hobby Lobby, had dismissed such claims as not involving substantial burdens on religious exercise (because there was no conflict between legal and religious obligations). So the Standing Rock case seems to present intriguing questions about the attributes of the relevant property interests and the place of Lyng in RFRA reasoning. Here, the burden argument is about desecrating sacred waters, not about conflicting legal and religious norms.
On Thu, Feb 9, 2017 at 2:27 PM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > The Standing Rock Sioux’s RFRA request for a TRO is here: > > > > https://embed.contagiousmedia.com/embed/sub/item-ol3xgp- > 38nio?sb=10497046&cb=1486655474&rds= > > > > They claim to own the waters of Lake Oahe, thus distinguishing > unsuccessful religious liberty claims by tribes in *Lyng*, *Navajo Nation*, > and *Snoqualmie*. Beginning at p.34, they also say that *Navajo Nation* > and *Snoqualmie* (and by clear implication *Lyng*, although they don’t > say that) are no longer good law. They are inconsistent with the passage in > *Hobby > Lobby* suggesting that the courts cannot inquire into the substantiality > of any alleged burden on the exercise of religion. The Eighth Circuit was > the only circuit to take those statements literally and at full value in > the litigation culminating in *Zubik*, although this brief does not cite > that case. > > > > Does anyone expect the courts in general, or the conservative Justices in > particular, to adhere to *Hobby Lobby*’s view of burden in a case like > this, where the political valences are reversed? > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
