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
>
> ___
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>
--
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
___
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