Apache Stronghold v. USAApache Stronghold v. USA
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted En Banc March 21, 2023 Pasadena, California
Filed March 1, 2024
Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Marsha S. Berzon, Carlos T. Bea, Mark J. Bennett, Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee, Danielle J. Forrest, Lawrence VanDyke and Salvador Mendoza, Jr., Circuit Judges.
Per Curiam Opinion; Opinion by Judge Collins; Partial Concurrence and Partial Dissent by Judge Bea; Concurrence by Judge R. Nelson; Concurrence by Judge VanDyke; Dissent by Chief Judge Murguia; Dissent by Judge Lee
SUMMARY*
Religious Freedom Restoration Act / Free Exercise Clause
The en banc court affirmed the district court‘s order denying Apache Stronghold‘s motion for a preliminary injunction against the federal government‘s transfer of Oak Flat—federally owned land within the Tonto National Forest—to a private company, Resolution Copper.
Oak Flat is a site of great spiritual value to the Western Apache Indians and also sits atop the world‘s third-largest deposit of copper ore. To take advantage of that deposit, Congress by statute—the Land Transfer Act—directed the federal government to transfer the land to Resolution Copper, which would then mine the ore.
Apache Stronghold, an organization that represents the interests of certain members of the San Carlos Apache Tribe, sued the government, seeking an injunction against the land transfer on the ground that the transfer would violate its members’ rights under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act (“RFRA“), and an 1852 treaty between the United States and the Apaches.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
The per curiam opinion provides an overview of the votes of the en banc court:
- A majority of the en banc court (Chief Judge Murguia, and Judges Gould, Berzon, R. Nelson, Lee and Mendoza) concluded that (1) the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA“), and RFRA are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden. A majority of the en banc court therefore overruled the narrow definition of substantial burden under RFRA in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc).
- A different majority of the en banc court (Judges Bea, Bennett, R. Nelson, Collins, Forrest, and VanDyke) concluded that (1) RFRA subsumed, rather than overrode, the outer limits that Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439 (1988), placed on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Apache Stronghold‘s claims under the Free Exercise Clause and RFRA failed under these Lyng-based standards and the claims based on the 1852 treaty failed for separate reasons.
In his opinion for the court, Judge Collins, joined by Judges Bea, Bennett, R. Nelson, Forrest, and VanDyke, held that Apache Stronghold was unlikely to succeed on the merits on any of its three claims before the court, and consequently was not entitled to preliminary injunctive relief.
- Apache Stronghold‘s claim that the transfer of Oak Flat to Resolution Copper would violate the Free Exercise Clause failed under the Supreme Court‘s controlling decision in Lyng because the project challenged here is indistinguishable from that in Lyng. As in Lyng, the government‘s actions with respect to “publicly owned land” would “interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their religious beliefs,” but it would have no “tendency to coerce” them “into acting contrary to their religious beliefs.” Also, as in Lyng, the challenged transfer of Oak Flat for mining operations did not discriminate against Apache Stronghold‘s members, did not penalize them, or deny them an “equal share of the rights, benefits, and privileges enjoyed by other citizens.”
- Apache Stronghold‘s claim that the transfer of Oak Flat to Resolution Copper would violate RFRA failed for the same reasons because what counts as “substantially burden[ing] a person‘s exercise of religion” must be understood as subsuming, rather than abrogating, the holding of Lyng.
- Apache Stronghold‘s claim that the 1852 Treaty of Sante Fe created an enforceable trust obligation that would be violated by the transfer of Oak Flat failed because the government‘s statutory obligation to transfer Oak Flat abrogated any contrary treaty obligation.
Concurring in part and dissenting in part, Judge Bea, joined by Judge Forrest except for footnote 1 and by Judge Bennett with respect to Part II, dissented from paragraph one of the per curiam opinion‘s purported overruling of Navajo Nation because a majority of the panel already affirmed the district court, under the different rationale in Judge Collins‘s majority opinion, the district court‘s finding that the transfer of Oak Flat will impose no substantial burden under RFRA. He concurred in full with Judge Collins‘s majority opinion, and wrote separately to provide additional reasons in support of the conclusion that Apache Stronghold cannot obtain relief under RFRA.
Concurring, Judge R. Nelson stated that en banc review was warranted to correct the faulty legal test (not outcome) in Navajo Nation. He explained that since Navajo Nation was decided, it has become clear that “substantial burden” means more in RLUIPA than the narrow definition Navajo Nation gave it under RFRA, and a majority of the en banc court now rejects the narrow construction of “substantial burden” in Navajo Nation. While the dissent raises a plausible textual interpretation of “substantial burden” under RFRA, Judge R. Nelson ultimately disagrees with it. Because RFRA does not overrule the Supreme Court‘s binding precedent in Lyng, Apache Stronghold has no viable RFRA claim.
Concurring, Judge VanDyke agreed with the majority that this decision is controlled by Lyng, and wrote separately to elaborate on why the alleged “burden” in this case is not cognizable under RFRA and to explain why reinterpreting RFRA to impose affirmative obligations on the government to guarantee its own property for religious use would inevitably result in religious discrimination.
Dissenting, Chief Judge Murguia, joined by Judges Gould, Berzon, and Mendoza, and by Judge Lee as to all but Part II.H, wrote that the utter destruction of Oak Flat, a site sacred to the Western Apaches since time immemorial, is a “substantial burden” on the Apaches’ sincere religious exercise under RFRA. Navajo Nation wrongly defined “substantial burden” as a narrow term of art and foreclosed relief. In light of the plain meaning of “substantial burden,” RFRA prohibits government action that “oppresses” or “restricts” “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” to a “considerable amount,” unless the government can demonstrate that imposition of the burden is in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest. Chief Judge Murguia would hold that Apache Stronghold has shown that it is likely to succeed on the merits of its RFRA claim, and would remand for the district court to determine whether the Land Transfer Act is justified by a compelling interest pursued through the least restrictive means. Finally, Chief Judge Murguia rejected the government‘s eleventh-hour argument that RFRA does not apply to the Land Transfer Act.
Dissenting, Judge Lee joined all of Chief Judge Murguia‘s dissent except for Section II.H
COUNSEL
Luke W. Goodrich (argued), Mark L. Rienzi, Diana M. Verm Thompson, Joseph C. Davis, Christopher Pagliarella, Daniel D. Benson, and Kayla A. Toney, The Becket Fund for Religious Liberty, Washington, D.C.; Michael V. Nixon, Michael V. Nixon JD, Portland, Oregon; Clifford I. Levenson, Law Office of Clifford Levenson, Phoenix, Arizona; for Plaintiffs-Appellants.
Miles E. Coleman, Nelson Mullins Riley & Scarborough LLP, Greenville, South Carolina; Thomas Hydrick, Assistant Deputy Solicitor General, South Carolina Attorney General‘s Office, Columbia, South Carolina; Hunter Windham, Duffy & Young LLC, Charleston, South Carolina; Thomas C. Berg, Religious Liberty Appellate Clinic, University of St. Thomas School of Law, Minneapolis, Minnesota; W. Thomas Wheeler, Fredrikson & Byron PA, Minneapolis, Minnesota; for Amici Curiae Religious Liberty Law Scholars.
James C. Phillips, Chapman University, Dale E. Fowler School of Law, Orange, California; Gene C. Schaerr, Joshua J. Prince, Edward H. Trent, Riddhi Dasgupta, and Megan Shoell, Schaerr Jaffe LLP, Washington, D.C.; for Amici Curiae The Jewish Coalition for Religious Liberty, The International Society for Krishna Consciousness, The Sikh Coalition, and Protect the 1st.
Joshua C. McDaniel, Kelsey Baer Flores, Matthew E. Myatt, and Parker W. Knight III, Harvard Law School Religious Freedom Clinic, Cambridge, Massachusetts, for Amicus Curiae The Sikh Coalition.
James C. Phillips, Chapman University, Dale E. Fowler School of Law, Orange, California; Alexander Dushku, R. Shawn Gunnarson, Justin W. Starr, and Jarom Harrison, Kirton McConke, Salt Lake City, Utah; for Amici Curiae The Church of Jesus Christ of Latter-Day Saints, The General Conference of Seventh-Day Adventists, The Islam and Religious Freedom Action Team of the Religious Freedom Institute, and The Christian Legal Society.
Jason Searle and Beth Wright, Native American Rights Fund, Boulder, Colorado; April Youpee-Roll, Munger Tolls & Olson LLP, Los Angeles, California; for Amici Curiae Tribal Nations and Tribal Organizations.
David T. Raimer, Megan L. Owen, and Anika M. Smith, Jones Day, Washington, D.C., for Amicus Curiae The Mennonite Church USA and the Pacific Southwest Mennonite Conference.
Joan M. Pepin (argued), Andrew C. Mergen, Tyler M. Alexander, Attorneys; Jean E. Williams, Acting Assistant Attorney General; Todd Kim, Assistant Attorney General; United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Katelin Shugart-Schmidt, Attorney, United States Department of Justice, Environment & Natural Resources Division, Denver, Colorado; for Defendants-Appellees.
David Debold (argued), Thomas G. Hungar, and Matthew S. Rozen, Gibson Dunn & Crutcher LLP, for Amicus Curiae American Exploration & Mining Association, Women‘s Mining Coalition, and Arizona Rock Products Association.
William E. Trachman, Mountain States Legal Foundation, Lakewood, Colorado; Timothy Sandefur, Goldwater Institute, Phoenix, Arizona; for Amicus Curiae Towns of Superior and Hayden, Arizona, and Jamie Ramsey, the Mayor of Kearny, Arizona.
Kathryn M. Barber and Matthew A. Fitzgerald, McGuireWoods LLP, Richmond, Virginia, for Amici Curiae Pinal Partnership, Valley Partnership, PHX East Valley Partnership, The Honorable
Anthony J. Ferate, Andrew W. Lester, and Courtney D. Powell, Spencer Fane LLP, Oklahoma City, Oklahoma, for Amicus Curiae Arizona Chamber of Commerce and Industry.
OPINION
PER CURIAM:
A majority of the en banc court (Chief Judge MURGUIA and Judges GOULD, BERZON, R. NELSON, LEE, and MENDOZA) concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA“),
A different majority (Judges BEA, BENNETT, R. NELSON, COLLINS, FORREST, and VANDYKE) concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court‘s decision in Lyng v. Northwest Indian Cemetery Protective Ass‘n, 485 U.S. 439 (1988), places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449-50, 453. The same majority holds that Apache Stronghold‘s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.
We therefore AFFIRM the district court‘s order denying the motion for a preliminary injunction.
COLLINS, Circuit Judge, delivered the following opinion for the court, in which BEA, BENNETT, R. NELSON, FORREST, and VANDYKE, Circuit Judges, join:
Oak Flat, an area located on federally owned land within Tonto National Forest, is a site of great spiritual value to the Western Apache Indians, who believe that it is indispensable to their religious worship. But Oak Flat also sits atop the world‘s third-largest deposit of copper ore. To take advantage of that deposit, Congress by statute directed the federal Government to transfer the land to a private company, Resolution Copper, which would then mine the ore. Apache Stronghold, an organization that represents the interests of certain members of the San Carlos Apache Tribe, sued the Government, seeking an injunction against the land transfer on the ground that the transfer would violate its members’ rights under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act (“RFRA“), and an 1852 treaty between the United States and the Apaches. The district court denied Apache Stronghold‘s request for a preliminary injunction on the ground that Apache Stronghold had not shown a likelihood of success on the merits. See Apache Stronghold v. United States, 519 F. Supp. 3d 591, 598 (D. Ariz. 2021). We affirm.
I
A
Apache Stronghold is an Arizona nonprofit corporation “based in the Western Apache lands of the San Carlos Apache Tribe.” It describes itself as “connecting Apaches and other Native and non-Native allies from all over the world.” Its declared mission is “to battle continued colonization, defend Holy sites and freedom of religion, and . . . build[] a better community through neighborhood programs and civic engagement.” The San Carlos Apache Tribe of the San Carlos Reservation is a federally recognized Indian tribe located on the San Carlos Reservation, roughly 100 miles east of Phoenix.
Apache Stronghold‘s members engage in traditional Western Apache religious practices. Among the locations that are central to their religion is a place called “Chí‘chil Biłdagoteel,” which in English means “Emory Oak Extends on a Level.” That accounts for the site‘s more common name, which is “Oak Flat.” According to Apache Stronghold‘s expert witness, Western Apache religious practices at Oak Flat date back at least a millennium. The Western Apache believe that Oak Flat is a “sacred place” that serves as a “direct corridor” to “speak to [their] creator.” Specifically, they believe that Oak Flat is the site where one of the “Ga‘an“—spirit messengers between the Western Apache and their Creator—“has made its imprint,
Members of the tribe report that they “cannot have this spiritual connection with the land anywhere else on Earth.” Oak Flat is “the only area” with these unique features, making it “crucial” to Western Apache religious life. As one example, members of the tribe stated that certain Western Apache religious practices must occur at Oak Flat and cannot take place anywhere else. And even among those religious practices that need not necessarily occur at Oak Flat, some trace their origins to practices that were first begun there. One such practice is the “Sunrise Ceremony,” a rite of passage for Western Apache girls to recognize “the gift of life and the bearing of children to the female.” The Western Apache believe that “the place the ceremony takes place is the life thread forever connecting the place and the girls who have their ceremony there.” One member testified that “the most important part about” the Sunrise Ceremony “is that everything that we are able to use for the ceremony comes from Chí‘chil Biłdagoteel, Oak Flat.” Accordingly, in Western Apache religious belief, harms to Oak Flat work a corresponding spiritual harm to those who performed their Sunrise Ceremonies there, damaging their “life and their connection to their rebirth.”
B
In addition to being a sacred site for the Western Apache, Oak Flat is also a place of considerable economic significance. Located near the “Copper Triangle,” Oak Flat sits atop the third-largest known copper deposit in the world. Roughly 4,500 to 7,000 feet beneath Oak Flat is an ore deposit containing approximately two billion tons of “copper resource.” The U.S. Forest Service estimates that, if mined, this deposit could yield around “40 billion pounds of copper.” For that reason, there has long been considerable interest among mining companies in gaining access to the Oak Flat deposit.
Believing the copper beneath Oak Flat to be a significant asset, various members of Arizona‘s congressional delegation drafted legislation to compel the Government to transfer Oak Flat and its surroundings to Resolution Copper, a private mining company. Such legislation was introduced in each Congress from 2005 through 2014.1 Although these bills were the subject of numerous hearings and other congressional action over the years,2
did not bear fruit until late 2014, when Congress passed, and the President signed, the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (“NDAA“). See Pub. L. No. 113-291, 128 Stat. 3292 (2014). Included as § 3003 of the NDAA was a version of the previously oft-proposed “Southeast Arizona Land Exchange and Conservation Act.”3 Id. § 3003, 128 Stat. at 3732–41 (classified to § 539p of the unenacted title 16 of the United States Code).
Section 3003‘s declared purpose is “to authorize, direct, facilitate, and expedite the exchange of land between Resolution Copper and the United States.”
The land exchange is subject to certain conditions. For example, title to the land the Government would receive from Resolution Copper must be in a form that is acceptable to the Secretaries of Agriculture and the Interior, and must conform to the Department of Justice‘s “title approval standards.”
Lastly, Congress expressly stated that the land exchange would generally be governed by the National Environmental Policy Act (“NEPA“),
The statute commands that the land transfer take place “[n]ot later than 60 days after” the publication of the EIS.
Once the land transfer takes place, Resolution Copper plans to extract the ore by using “panel caving,” a technique that entails digging a “network of shafts and tunnels below the ore body.” Resolution Copper will then detonate explosives to fracture the ore, which will “move[] downward” as a result. That, in turn, will cause the ground above to begin to collapse inward. Over the next 41 years, Resolution Copper will remove progressively more ore from below Oak Flat, causing the surface geography to become increasingly distorted. The resulting subsidence will create a large surface crater, which the Forest Service estimates will span approximately 1.8 miles in diameter and involve a depression between 800 and 1,115 feet deep.
This collapse will not occur immediately upon transfer of the land. Even once Resolution Copper begins construction on the mine, it will be as much as six years before the mining facilities will be operational. And during that time, Resolution Copper is required by the terms of § 3003 to keep Oak Flat accessible to “members of the public, including Indian tribes, to the maximum extent practicable, consistent with health and safety requirements.”
C
On January 4, 2021, the Forest Service announced that the EIS for the land transfer would be published in 11 days, on January 15. That publication would trigger the 60-day window for the federal Government to transfer title to the land.
Apache Stronghold asserted several different claims in support of its prayer for relief. First, it alleged that the Government provided too little advance notice of the publication of the EIS, thereby infringing Apache Stronghold‘s members’ rights under the Due Process Clause and under the Petition Clause of the First Amendment. Next, Apache Stronghold alleged that the land transfer would violate its members’ rights under the 1852 Treaty of Sante Fe. As this treaty-based claim has been described by Apache Stronghold in this court, the 1852 treaty assertedly imposed fiduciary trust obligations on the Government to “protect the traditional uses of ancestral lands,” even if the Government “has formal title to the land.” The transfer would allegedly violate the treaty—and this corresponding federal trust obligation—because it would “allow total destruction” of the property and prevent the Western Apache from conducting their traditional religious practices.
Apache Stronghold also argued that the transfer would violate its members’ rights under the Free Exercise Clause of the First Amendment and under RFRA. With respect to its Free Exercise Clause claim, Apache Stronghold argued that § 3003 was not a neutral law of general applicability and was therefore subject to strict scrutiny. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). And, according to Apache Stronghold, the transfer was neither in support of a compelling governmental interest nor narrowly tailored to accomplish such an interest. As to RFRA, Apache Stronghold argued that the land
exchange “chills, burdens, inhibits, and destroys” the religious exercise of its members, thus substantially burdening their exercise of religion in violation of RFRA. As with the Free Exercise Clause claim, Apache Stronghold‘s RFRA claim asserted that the transfer was not narrowly tailored to accomplish a compelling governmental interest. See
Two days after filing suit, Apache Stronghold moved for a temporary restraining order (“TRO“) and preliminary injunction. Specifically, Apache Stronghold sought an order “preventing Defendants from publishing a Final Environmental Impact Statement . . . and from conveying the parcel(s) of land containing Oak Flat.”
On January 14, 2021, the district court denied Apache Stronghold‘s motion for a TRO. After conducting an evidentiary hearing on February 3, the district court denied the preliminary injunction motion on February 12. Because the district court concluded that Apache Stronghold had not demonstrated “a likelihood of success on,
On March 1, 2021, during the pendency of this appeal, the Government withdrew its EIS for the land transfer and mine. It explained that “additional time is necessary to fully understand concerns raised by Tribes” and to “ensure[] the agency‘s compliance with federal law.” To date, the Government has provided the court no concrete estimate of when the EIS will be issued, except to pledge that it is not awaiting the decision in this case and to state that it will provide the court and Apache Stronghold at least 60 days’ notice prior to issuing the EIS.
II
We have jurisdiction under
To show that it is entitled to a preliminary injunction, Apache Stronghold “must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The first factor—likelihood of success on the merits—is “the most important,” and “when a plaintiff has failed to show the likelihood of success on the merits, we need not consider the remaining three [factors].” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (citations and internal quotation marks omitted). In this court, Apache Stronghold only challenges the district court‘s likelihood-of-success determination with respect to its claims under the Free Exercise Clause, RFRA, and the 1852 treaty. Because, as we shall explain, Apache Stronghold has no likelihood of success on any of those three claims, we have no occasion to address the remaining Winter factors.
III
Apache Stronghold asserts that the transfer of Oak Flat from the Government to Resolution Copper would “violate the Free Exercise Clause.” This claim fails under the Supreme Court‘s controlling decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).
A
The dispute in Lyng arose from the Government‘s long-running effort to build a road connecting the northwest California towns of Gasquet and Orleans (the “G-O road“). 485 U.S. at 442. One of the final components of that project involved the construction of “a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest,” a section that had “historically been used for religious purposes by Yurok, Karok, and Tolowa Indians.” Id. As part of its preparation of a final environmental impact statement concerning the completion of the road through Chimney Rock, the Forest Service “commissioned a study of the American Indian cultural and religious sites in the area.” Id. That study recommended against completion of the road, because “any of the available routes ‘would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and
The Forest Service‘s actions were promptly challenged in a federal lawsuit brought by “an Indian organization, individual Indians,” the State of California, and others. Lyng, 485 U.S. at 443. The district court permanently enjoined both the timber management plan and the construction of the remaining section of the road, holding that these actions would infringe the rights of tribal members under the Free Exercise Clause as well as violate other provisions of federal law. Id. at 443-44. While the case was pending on appeal in this court, Congress intervened by enacting the California Wilderness Act of 1984, Pub. L. No. 98-425, 98 Stat. 1619 (1984). See Lyng, 485 U.S. at 444. That statute designated much of the land governed by the Forest Service‘s timber management plan as protected wilderness, thereby barring “commercial activities such as timber harvesting.” Id. However, the Act specifically “exempt[ed] a narrow strip of land, coinciding with the Forest Service‘s proposed route for the remaining segment of the G-O road, from the wilderness designation.” Id. This was done precisely “to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide.” Id. (quoting S. REP. NO. 98-582, at 29 (1984)). A panel of this court subsequently vacated the district court‘s injunction to the extent that it had been mooted by the wilderness designations in the California Wilderness Act, but otherwise largely affirmed the district court. See Northwest Indian Cemetery Protective Ass‘n v. Peterson, 795 F.2d 688, 698 (9th Cir. 1986); see also Lyng, 485 U.S. at 444-45.
The Supreme Court reversed. In addressing the Free Exercise Clause issue, which was a necessary component of the relief granted by the district court, the Court began by acknowledging that “[i]t is undisputed that the Indian [plaintiffs‘] beliefs are sincere and that the Government‘s proposed actions will have severe adverse effects on the practice of their religion.” Lyng, 485 U.S. at 447. As the Court explained, it was undisputed that the “projects at issue in this case could have devastating effects on traditional Indian religious practices,” and the Court therefore accepted the premise that “the G-O road will virtually destroy the Indians’ ability to practice their religion.” Id. at 451 (simplified); see also id. (acknowledging that the threat to the Indian plaintiffs’ “religious practices is extremely grave“). Despite these acknowledged severe impacts, the Court nonetheless held that the Government was not required to demonstrate a “compelling need” or otherwise to satisfy strict scrutiny. Id. at 447. That was true, the Court held, because the plaintiffs would not “be coerced by the Government‘s action into violating their religious beliefs,” nor would that action “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Id. at 449.
The Court held that the case was, in that respect, comparable to Bowen v. Roy, 476 U.S. 693 (1986), in which the Court rejected a Free Exercise challenge to a federal statute “that required the States to use Social Security numbers in administering certain welfare programs.” Lyng, 485 U.S. at 448-49. The plaintiffs in Roy contended that the governmental
As the Court explained, “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. (quoting Roy, 476 U.S. at 699). “The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government‘s internal procedures.” Id. (quoting Roy, 476 U.S. at 700).
The Lyng Court acknowledged that “[i]t is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.” 485 U.S. at 450 (emphasis added). Such indirect coercion or penalties would include a denial of program benefits “based solely” on the claimant‘s religious beliefs and practices, as well as any other denial of “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Id. at 449-50. But the Court held that the Free Exercise Clause‘s protection against government conduct “prohibiting” the free exercise of religion, see
In light of these principles, the Court concluded, the claim in Lyng could not “meaningfully be distinguished” from that in Roy. Lyng, 485 U.S. at 449. Although the resulting effects on the religious practices of the Indian plaintiffs would “virtually destroy” their “ability to practice their religion,” those religious impacts nonetheless did not implicate the Free Exercise Clause because the governmental actions that caused them had “no tendency to coerce individuals into acting contrary to their religious beliefs.” Id. at 450-51. Nor was this a situation in which the Government had “discriminate[d]” against the plaintiffs, as might be the case if Congress had passed “a law prohibiting the Indian [plaintiffs] from visiting the Chimney Rock area.” Id. at 453. According to the Court, the Indian plaintiffs sought, not “an equal share of the rights, benefits, and privileges enjoyed by other citizens,” but rather a “religious servitude” that would “divest the Government of its right to use what is, after all, its land.” Id. at 449, 452-53.
The project challenged here is indistinguishable from that in Lyng. Here, just as in Lyng, the Government‘s actions with respect to “publicly owned land” would “interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” but it would have “no tendency to coerce” them “into acting contrary to their religious beliefs.” 485 U.S. at 449-50. And just as with the land use decisions at issue in Lyng, the challenged transfer of Oak Flat for mining operations
B
Apache Stronghold‘s various arguments for distinguishing Lyng are all without merit.
First, Apache Stronghold argues that Lyng is distinguishable because, in that case, the virtual destruction of the “Indians’ ability to practice their religion” was accomplished without actually destroying any “sites where specific rituals take place.” 485 U.S. at 451, 454. According to Apache Stronghold, Lyng‘s holding is limited to cases involving only interference with “subjective” spiritual experiences and therefore does not apply to a case, such as this one, involving “physical destruction of a sacred site.” Although the dissent does not directly address the merits of Apache Stronghold‘s Free Exercise Clause claim, see Dissent at 192, the dissent‘s discussion of Lyng (undertaken in the context of analyzing RFRA) seeks to distinguish the case on the comparable ground that the project at issue there would not have precluded physical access to the relevant sacred sites, see Dissent at 215-21. These efforts to distinguish Lyng are refuted by Lyng itself.
In Lyng, the State of California argued that Roy was distinguishable on the ground that it involved only interference with the plaintiffs’ “religious tenets from a subjective point of view,” whereas Lyng involved a “proposed road [that] will ’physically destroy the environmental conditions and the privacy without which the religious practices cannot be conducted.‘” 485 U.S. at 449 (simplified) (emphasis added). The Court rejected this proffered subjective/physical distinction, expressly holding that there was no permissible basis to “say that the one form of incidental interference with an individual‘s spiritual activities should be subjected to a different constitutional analysis than the other.” Id. at 449-50. This holding requires rejection of Apache Stronghold‘s analogous proffered distinction between interference with subjective experiences and physical destruction of the means of conducting spiritual exercises.
The dissent contends that ”Lyng did not specifically address government action that prevented religious exercise,” and that it therefore does not apply to a case, such as this one, in which the Government‘s actions will physically destroy the site and thereby literally prevent its future use for religious purposes. See Dissent at 223-24 (emphasis added). This effort to distinguish Lyng also fails, because, once again, it ultimately relies on too expansive a notion of what counts as “prohibiting” the free exercise of religion. We readily agree that “prevent” can often be synonymous with “prohibit,” see Prohibit, WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1813 (1981 ed.) (“WEBSTER‘S THIRD“) (“to prevent from doing or accomplishing something“), and in that sense it is true that “prevent[ing] the plaintiff from participating in an activity motivated by a sincerely held religious belief” qualifies as prohibiting free exercise. Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014) (citing, inter alia, Lyng, 485 U.S. at 450); see also Graham v. Comm‘r, 822 F.2d 844, 850-51 (9th Cir. 1987). But “prevent” also can have the broader sense of “frustrate,” “keep from happening,” or “hinder,” which is how the dissent uses the term here. See Prevent, WEBSTER‘S THIRD, supra, at 1798. Lyng squarely rejected that broader notion of “prohibiting the free exercise” of religion:
The dissent begins by asserting that the “constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice.” The Constitution, however, says no such thing. Rather, it states: “Congress shall make no law . . . prohibiting the free exercise [of religion].”
485 U.S. at 456 (emphasis altered) (citations omitted).
Thus, contrary to what the dissent posits, it is not enough under Lyng to show that the Government‘s management of its own land and internal affairs will have the practical consequence of “preventing” a religious exercise. Indeed, Lyng explicitly rejected that broader notion of “prohibiting” religious exercise, concluding that it was foreclosed by Roy:
. . . Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would “‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” The dissent now offers to distinguish that case by saying that the Government was acting there “in a purely internal manner,” whereas land-use decisions “are likely to have substantial external effects.” Whatever the source or meaning of the dissent‘s distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a “substantial external effect” and one that is remarkably similar to the injury claimed by [the plaintiffs] in the case before us today. The dissent‘s reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so.
Lyng, 485 U.S. at 456 (emphasis added) (citations and further quotation marks omitted).
Second, Apache Stronghold argues that Lyng is distinguishable because it involved application of a neutral and generally applicable law, inasmuch as “the road in Lyng was carried out pursuant to the California Wilderness Act of 1984.” By contrast, according to Apache Stronghold, this case involves legislative action directed at “one ‘particular property,‘” which is the antithesis of a “generally applicable” law. The dissent also endorses this ground for distinguishing Lyng, arguing that Lyng merely stands for the “proposition that the compelling interest test is ‘inapplicable’ to ‘across-the-board’ neutral laws.” See Dissent at 224 (citation omitted). Once again, Lyng itself refutes this ground for attempting to distinguish that decision.
As Lyng itself makes clear, the California Wilderness Act was not a neutral and generally appliable law in the sense that Apache Stronghold posits, because it contained an express exemption for the “narrow strip of land” that exactly “coincid[ed] with the Forest Service‘s proposed route for the remaining segment of the G-O road.” 485 U.S. at 444. Thus, contrary to what Apache Stronghold claims, the relevant provisions of the statute at issue in Lyng likewise involved legislative action directed at “one ‘particular property.‘” Indeed, it was precisely this feature of the challenged actions in Lyng that the plaintiffs there sought to invoke as a ground for distinguishing Roy: whereas Roy involved the “mechanical” application of a general program requirement for the welfare program at issue, Lyng involved “a case-by-case substantive determination
The dissent claims that, even if the Lyng decision did not view itself as resting on a rule about neutral and generally applicable laws, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), and other post-Smith decisions have read it that way. See Dissent at 224-26. That is not correct. All that the Court has stated is that Smith and its progeny “drew support for [Smith‘s] neutral and generally applicable standard from cases involving internal government affairs,” such as Lyng. Fulton v. City of Philadelphia, 593 U.S. 522, 536 (2021) (emphasis added). Thus, in Smith, the Court stated that its core holding—i.e., that strict scrutiny does not apply to neutral laws of general applicability—was supported by Lyng‘s broader observation that the boundaries of the Free Exercise Clause “cannot depend on measuring the effects of a governmental action on a religious objector‘s spiritual development.” 494 U.S. at 885 (quoting Lyng, 485 U.S. at 451). But the Court has not said, and could not have said, that Lyng was itself a case involving a neutral and generally applicable law. As we have set forth, Lyng involved a situation in which, after religious objections had been raised to the G-O road and the road‘s construction had been enjoined, Congress proceeded to adopt an explicit statutory gerrymander for the precise parcel at issue. See supra at 23-24. That manifestly would not fit the Court‘s current understanding of a case involving a neutral and generally applicable law. See, e.g., Church of the Lukumi, 508 U.S. at 542 (emphasizing that “categories of selection” in legislative drafting “are of paramount concern when a law has the incidental effect of burdening religious practice“). The holding of Lyng therefore does not rest on the premise that the laws at issue there were neutral and generally applicable.
The dissent also points to Lyng‘s observation that, because the “Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred,” a “law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions.” 485 U.S. at 453 (emphasis added); see also Dissent at 220. According to the dissent, “the Land Transfer Act is exactly that kind of ‘prohibitory’ law.” See Dissent at 220. That contention is refuted by the fact that, under the statute, any post-transfer prohibitions that Resolution Copper may impose on public access to Oak Flat would be nondiscriminatory. See
In sum, Lyng stands for the proposition that a disposition of government real property is not subject to strict scrutiny when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449-50, 453. In such circumstances, the essential ingredient of “prohibiting” the free exercise of religion is absent, and the Free Exercise Clause is not violated. And because Lyng‘s application of that rule in the context of that case cannot meaningfully be distinguished in this case, Apache Stronghold has no likelihood of success on its Free Exercise claim.
Apache Stronghold also contends that the sale of Oak Flat to Resolution Copper would violate its members’ rights under RFRA. Congress enacted RFRA in 1993 “in direct response” to Smith‘s narrow construction of the Free Exercise Clause, see City of Boerne v. Flores, 521 U.S. 507, 512 (1997), and Congress did so precisely “in order to provide greater protection for religious exercise than is available” under the Free Exercise Clause as construed in Smith, see Holt v. Hobbs, 574 U.S. 352, 357 (2015). The question here is whether the broader protection afforded by RFRA has the practical effect of displacing, by statute, the pre-Smith decision in Lyng. The answer to that question is no.
A
In order to understand what RFRA enacts, it is important to begin with the decision that RFRA sought to supersede, namely, Employment Division v. Smith.
Smith involved a denial of unemployment benefits to two Oregon workers who “were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both [were] members.” 494 U.S. at 874. The claimants appealed that denial of benefits to the Oregon Court of Appeals, which held that the denial violated the Free Exercise Clause. Id. On the State‘s further appeal, the Oregon Supreme Court agreed. Id. at 875. The U.S. Supreme Court granted certiorari, but it initially held only that, “if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct.” Employment Div., Dep‘t of Human Res. of Oregon v. Smith, 485 U.S. 660, 670 (1988). The Court therefore remanded the case to the Oregon Supreme Court to address “whether [the plaintiffs‘] sacramental use of peyote was in fact proscribed by Oregon‘s controlled substance law.” Smith, 494 U.S. at 875. On remand, the Oregon Supreme Court answered that question in the affirmative and otherwise “reaffirmed its previous ruling” in the plaintiffs’ favor. Id. at 876. The U.S. Supreme Court again granted review. Id. Thus, although Smith had started out as an unemployment compensation case, it returned to the Supreme Court as squarely presenting the question of whether Oregon‘s criminal prohibition on all use of peyote violated the Free Exercise Clause. Id. Accordingly, unlike Lyng, Smith presented no threshold question as to whether the challenged Oregon law actually “prohibit[ed]” the claimants’ religious exercise. See
A sharply divided Court held that there was no violation of the Free Exercise Clause. Justice Scalia‘s majority opinion for five Justices acknowledged what it described as “the balancing test set forth in Sherbert v. Verner, 374 U.S. 398 (1963),” under which “governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.” Smith, 494 U.S. at 883. The Court noted that it had applied the Sherbert test in three cases to “invalidate[] state unemployment compensation rules that conditioned the availability of benefits upon an applicant‘s willingness to work under conditions forbidden by his religion.” Id. The Court also observed that, in several other decisions, the Court “purported to apply the Sherbert test in contexts
The Court‘s holding that the Sherbert test does not apply to neutral and generally applicable prohibitions drew the sharp disagreement of four Justices, in a separate opinion written by Justice O‘Connor.5 According to Justice O‘Connor, the Court‘s caselaw has “respected both the First Amendment‘s express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Smith, 494 U.S. at 894 (O‘Connor, J., concurring in the judgment). Citing the unemployment compensation case of Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), Justice O‘Connor elaborated on her understanding of what it meant for government to impose a substantial burden on religious exercise:
[T]he essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one‘s own religion or conformity to the religious beliefs of others the price of an equal place in the
civil community. As [the Court] explained in Thomas:
“Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” 450 U.S., at 717-718.
Smith, 494 U.S. at 897 (O‘Connor, J., concurring in the judgment). Thus, Justice O‘Connor concluded, “[t]he
B
Congress promptly sought to supersede, by statute, Smith‘s holding that “neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause.” Holt, 574 U.S. at 356-57. As stated expressly in § 2 of RFRA, Congress‘s primary purpose in enacting the Act was to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”
Section 3(a) of RFRA establishes the general rule that “[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability.”
Government may substantially burden a person‘s exercise of religion only if it demonstrates that application of the burden to the person—
- is in furtherance of a compelling governmental interest; and
- is the least restrictive means of furthering that compelling governmental interest.
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006).
Congress also made clear its intent that RFRA operate as a framework statute, “displacing the normal operation of other federal laws.” Bostock v. Clayton Cnty., 590 U.S. 644, 682 (2020). Specifically, § 6 of RFRA provides that the Act “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” the date of RFRA‘s enactment.
RFRA does not define what it means to “substantially burden a person‘s exercise of religion.”
As Terry Williams explained, in the unusual situation in which the “broader debate and the specific statements” of the Justices in a particular decision “concern[] precisely the issue” that Congress later addresses in a statute that borrows the Justices’ terminology, Congress should be understood to have “adopt[ed]” the relevant “meaning given a certain term in that decision.” 529 U.S. at 411-12. Thus, in construing the standards of review applicable in deciding habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act (“AEDPA“), Terry Williams turned to “[t]he separate opinions” in Wright v. West, 505 U.S. 277 (1992), which concerned that “very issue.” 529 U.S. at 411. As Terry Williams recounted, the respective opinions of Justice Thomas and Justice O‘Connor in Wright vigorously debated whether habeas review should be deferential, with Justice O‘Connor concluding that a federal court should review de novo whether the state court‘s resolution of the federal issue was “correct,” and Justice Thomas concluding that a federal court should “simply” inquire as to whether the state decision was “reasonable.” Id. at 410-11. In addressing the issue of the appropriate standards of review in AEDPA‘s amendments to the habeas statute, see
RFRA presents exactly the sort of distinctive situation in which the principles discussed in Terry Williams are applicable. Terry Williams invoked those principles with respect to AEDPA even though the Court conceded that there was “no indication in § 2254(d)(1) itself that Congress was ‘directly influenced’ by Justice Thomas’ opinion in Wright.” 529 U.S. at 411 (emphasis added). As the Court explained, “Congress need not mention a prior decision of this Court by name in a statute‘s text in order to adopt either a rule or a meaning given a certain term in that decision.” Id. But where, as with RFRA, Congress does specifically “mention a prior decision of this Court by name in a statute‘s text,” id., the inference is all the more inescapable that, when Congress borrows the Justices’ same phrasing, it does so against the backdrop of how those terms were understood in the relevant opinions accompanying that decision. Here, RFRA was enacted against the backdrop of the vigorous debate between Justice Scalia and Justice O‘Connor in Smith; both of their opinions used variations of the phrase “substantially burden” in describing the pre-Smith framework for evaluating Free Exercise Clause claims7;
Thus, for example, Justice O‘Connor‘s separate opinion in Smith confirms that the “substantial burden” rule established in the Court‘s caselaw is consistent with, and does not abrogate, the Court‘s decision in Lyng (which she wrote). As Justice O‘Connor explained in her separate opinion in Smith, Lyng did not “signal” a “retreat from [the Court‘s] consistent adherence to the compelling interest test” in evaluating governmental action prohibiting the free exercise of religion; instead, it reflected the underlying limits in the governmental conduct reached by the Free Exercise Clause. Smith, 494 U.S. at 900 (O‘Connor, J., concurring in the judgment). She argued that, like Roy, Lyng involved the Government‘s “conduct [of] its own internal affairs” in a way that did not implicate the Free Exercise Clause‘s rule about “what the government cannot do to the individual.” Id. (emphasis added) (citation omitted). That view is consistent with Lyng, which—as we have exhaustively explained earlier—rests on the premise that the Government‘s actions there, although substantially destructive of the Indians’ religious interests, did not involve “prohibiting the free exercise” of religion within the meaning of the Free Exercise Clause. See supra at 24-27.
Moreover, Justice O‘Connor‘s Smith concurrence contained a detailed explication of what counts as a cognizable burden under the Court‘s then-existing caselaw, and it closely dovetails with Lyng. As she explained, such burdens may be “imposed directly through laws that prohibit or compel specific practices“; they may be imposed “indirectly through laws that, in effect, make abandonment of one‘s own religion or conformity to the religious beliefs of others the price of an equal place in the civil community“; or they may involve benefit conditions that “put[] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Smith, 494 U.S. at 897 (O‘Connor, J., concurring in the judgment) (emphasis added) (citation omitted).
Likewise, nothing in Justice Scalia‘s majority opinion in Smith suggested that the Court thought that Lyng was inconsistent with the substantial burden test. Instead, in the course of arguing for a broader jettisoning of Sherbert‘s compelling interest test, the Smith majority simply cited Lyng as an instance in which that strict scrutiny test had not been applied. See Smith, 494 U.S. at 883. As noted earlier, the Smith majority also argued that its broader position drew support from Lyng‘s general observation that the limitations imposed by the Free Exercise Clause “cannot depend on measuring the effects of a governmental action on a religious objector‘s spiritual development,” id. at 885 (quoting Lyng, 485 U.S. at 451), but that likewise reflects no criticism of Lyng‘s
Indeed, the only debate that Justice Scalia and Justice O‘Connor had concerning Lyng related to the majority‘s use of this latter comment to bolster its broader rule about neutral laws of general applicability. Justice O‘Connor objected that the majority took that comment out of Lyng‘s specific context, which involved only the Government‘s conduct of its “internal affairs” and therefore did not implicate the Free Exercise Clause‘s rule about “what the government cannot do to the individual.” Smith, 494 U.S. at 900 (O‘Connor, J., concurring in the judgment) (citation omitted). The Court responded that there was no basis for limiting the cited principle in the way that Justice O‘Connor posited. Lyng‘s observation should apply more broadly, the Court explained, because “it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands, Lyng, supra, or its administration of welfare programs, Roy, supra.” Id. at 885 n.2. This debate about whether and how to extend an observation made in Lyng reflects no criticism of Lyng‘s ultimate holding.
Accordingly, both Justice O‘Connor‘s concurrence and the majority opinion in Smith strongly confirm that, under the then-existing framework of Free Exercise Clause jurisprudence, the proposition that the government must justify, by strict scrutiny, any “substantial burden” on religious exercise is one that subsumes, rather than overrides, Lyng‘s holding about the scope of government action that is reached by the constitutional phrase “prohibiting the free exercise thereof.”
C
The dissent‘s exclusive reliance on its composite understanding of the dictionary definitions of “substantial” and “burden,” see Dissent at 196, contravenes the interpretive principles discussed in Terry Williams, as well as the crucial context supplied by Smith and Lyng. As a result, the dissent‘s construction of the phrase elides the crucial ingredient that Lyng reflects, which is that the phrase “substantial burden” must ultimately be bounded by what counts as within the domain of the phrase “prohibiting the free exercise thereof.”
It is no answer to say, as the dissent does, that we have applied that dictionary definition in construing the meaning of the identical term “substantial burden” as used in the Religious Land Use and Institutionalized Persons Act (“RLUIPA“). See Dissent at 203-05. The dissent overlooks the fact that RLUIPA expressly applies only to “substantial burdens” in two specific contexts—namely, “impos[ing] or implement[ing]
The dissent‘s contrary conclusion that RFRA does supersede Lyng rests on the premise that Lyng was based on a Smith-style holding about neutral and generally applicable rules. See Dissent at 224-28. For the reasons that we have already explained, that premise is patently incorrect. The law at issue in Lyng was manifestly not generally applicable, and nothing in Lyng rests upon, or endorses, the broad rule later adopted in Smith. See supra at 24-25, 31-33. Indeed, the most that the Smith majority claimed was that one particular statement in Lyng should be extended in a way that would support differential treatment of neutral laws of general applicability. See Smith, 494 U.S. at 885.
The dissent is also wrong in asserting that a 2000 amendment to RFRA—enacted as part of RLUIPA—demonstrates Congress‘s intent that RFRA not be tied to the constitutional understanding of what counts as “prohibiting” the free exercise of religion. See Dissent at 200-01. Prior to RLUIPA, RFRA defined the specific term “exercise of religion” to “mean[] the exercise of religion under the First Amendment to the Constitution.” See
The dissent further errs in contending that our construction of “substantial burden” here disregards the Supreme Court‘s rejection of the view that “RFRA merely restored th[e] Court‘s pre-Smith decisions in ossified form.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 715-16 (2014); see also Dissent at 201. The proposition the Court rejected in Hobby Lobby was that RFRA protected only the particular collection of practices that happened to have been “specifically addressed in [the Court‘s] pre-Smith decisions,” much like AEDPA requires a showing of “‘clearly established Federal law, as determined by the Supreme Court of the United States.‘” Id. at 714 (quoting
* * *
Accordingly, RFRA‘s understanding of what counts as “substantially burden[ing] a person‘s exercise of religion” must be understood as subsuming, rather than abrogating, the holding of Lyng. That holding therefore governs Apache Stronghold‘s RFRA claim as well, and that claim therefore fails for the same reasons discussed earlier. See supra at 27.
V
Finally, Apache Stronghold also argues that an 1852 treaty of “perpetual peace and amity” between the “Apache Nation of Indians” and the United States, see TREATY WITH THE APACHES, July 1, 1852, art. 2, 10 Stat. 979 (1853), created an enforceable trust obligation that would be violated by the transfer of Oak Flat. That trust obligation, Apache Stronghold argues,
Relying confidently upon the justice and the liberality of the [federal] government, and anxious to remove every possible cause that might disturb their peace and quiet, it is agreed by the aforesaid Apache‘s [sic] that the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians.
Id., art. 9; see also id., art. 11 (stating that “the government of the United States shall so legislate and act as to secure the permanent prosperity and happiness of said Indians“). Specifically, Apache Stronghold argues that the Government‘s treaty obligation to “pass and execute . . . such laws as may be deemed conducive to the prosperity and happiness‘” of the Apaches should be “construed to obligate the United States to preserve traditional Apache religious practices on their historic homeland.” Thus construed, Apache Stronghold contends, the Government‘s obligations under the treaty override any power or obligation to transfer Oak Flat under § 3003. This contention fails. Even assuming arguendo that Apache Stronghold‘s interpretation of the Government‘s treaty obligations is correct, the Government‘s statutory obligation to transfer Oak Flat under § 3003 clearly abrogates any contrary treaty obligation, not the other way around.9
“Congress has the power to abrogate Indians’ treaty rights,” but Congress generally must “clearly express its intent to do so.” South Dakota v. Bourland, 508 U.S. 679, 687 (1993). To the extent that Apache Stronghold is correct in contending that the Government has a treaty-based trust obligation to retain Oak Flat for the benefit of the tribe and its members, § 3003 clearly and manifestly abrogates any such obligation. Section 3003 was passed to accomplish a single goal: to “authorize, direct, facilitate, and expedite the exchange of land between Resolution Copper and the United States.”
VI
For the foregoing reasons, Apache Stronghold is unlikely to succeed on the merits of any of the three claims before this court. It consequently cannot show that it is entitled to preliminary injunctive relief, and we need not consider the remaining Winter factors. See Garcia, 786 F.3d at 740. The district court‘s order denying Apache Stronghold‘s motion for a preliminary injunction is therefore affirmed.
AFFIRMED.
BEA, Circuit Judge, dissenting in part and concurring in part, with whom Circuit Judge FORREST joins except for footnote one; Circuit Judge BENNETT joins with respect to Part II:
I.
I dissent from paragraph one of the per curiam opinion, which announces that the term “substantial burden” as used in RFRA and RLUIPA “are interpreted uniformly,” declares that Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), is overruled as a result of this interpretation of uniformity between RFRA and RLUIPA, and volunteers, in place of that 15-year precedent, a new test for when a government action imposes a “substantial burden” under RFRA that broadly asks whether the government conduct “prevent[s] access to religious exercise.” We also did not apply this test to arrive at the ultimate decision of this Court, and this test does not address any “issue [that is] germane to the eventual resolution of th[is] case.” United States v. Johnson, 256 F.3d 895, 914-16 (9th Cir. 2001) (separate opinion of Kozinski, J., Trott, T.G. Nelson, Silverman, JJ.) (emphasis added). That is because a majority of this panel has already affirmed, under the completely different rationale in Judge Collins‘s majority opinion, the district court‘s finding that the transfer of Oak Flat will impose no substantial burden under RFRA.1
Nor do I think the separate majority‘s pronouncements in paragraph one of the per curiam opinion deserve binding weight in future cases even under our “well-reasoned” dicta rule. See Johnson, 256 F.3d at 914-16 (separate opinion of Kozinski, J., Trott, T.G. Nelson, Silverman, JJ.), adopted as the law of the circuit in Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003). No majority of this panel has filed a separate opinion setting forth the rationale behind paragraph one of the per curiam opinion. Neither Chief Judge Murguia‘s dissent nor Judge R. Nelson‘s concurrence reflect the rationale of this Court that would support overruling Navajo Nation. We have, in other words, two sentences of dicta in the opening of a majority per curiam opinion—which purport to effect a seismic shift in our RFRA jurisprudence—but no
II.
I concur in full with Judge Collins‘s majority opinion. I agree that RFRA‘s term “substantial burden” does not include the governmental action at issue here “because the plaintiffs would not ‘be coerced by the Government‘s action into violating their religious beliefs,’ nor would that action ‘penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.‘” And I agree that Congress “adopted the limits that Lyng places on what counts as a governmental imposition of a substantial burden on religious exercise” when Congress passed the Religious Freedom Restoration Act,
I write separately to provide additional reasons in support of the conclusion that Apache Stronghold cannot obtain relief under RFRA. First, I will discuss the further textual and contextual evidence that the term “substantial burden,” as used in RFRA, has the same limited meaning it had in federal court cases decided prior to RFRA‘s enactment. Second, I will discuss how RFRA and RLUIPA, in addition to having distinguishable applications, also have distinguishable texts, such that RLUIPA cases ought not to be used to interpret RFRA for this additional reason. Third, I will discuss the serious practical problems that would arise with the test proposed by Chief Judge Murguia in her lead dissent. Last, I will discuss how, even were RFRA to provide the Apache a viable claim for relief, RFRA‘s application in this case would nonetheless be abrogated by Congress‘s express direction in the Land Exchange Act that the land exchange be consummated.
FACTUAL BACKGROUND
Congress passed the Land Exchange Act in 2015. The Land Exchange Act authorizes and directs the exchange of land between the United States Government and two foreign mining companies (known collectively as “Resolution Copper“).
On January 12, 2021, Apache Stronghold, a nonprofit organization with members who belong to Western Apache tribes, filed suit seeking to prevent the land exchange and ensure that its members would forever have a right to access Oak Flat. Two days later, Apache Stronghold filed a Motion for Temporary Restraining Order and Preliminary Injunction. The district court held a hearing on the motion on February 3, 2021, and denied it nine days later. The district court found “that the Apache peoples have been using Oak Flat as a sacred religious ceremonial ground for centuries.” Apache Stronghold v. United States, 519 F. Supp. 3d 591, 603 (D. Ariz. 2021). The district court also found that
Apache Stronghold appealed, and on June 24, 2022, a three-judge panel of this court affirmed the denial of the preliminary injunction. Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022). The panel opinion relied on our en banc decision in Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1069-70 (9th Cir. 2008) (en banc), to decide the RFRA claim. 38 F.4th at 753.
On November 17, 2022, upon a vote of a majority of the non-recused active judges, the court sua sponte ordered that this case be reheard en banc.
LEGAL BACKGROUND
A. Pre-RFRA Jurisprudence
Before the 1993 enactment of RFRA, in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court had laid out a strict scrutiny test for certain governmental actions that interfered with the constitutional right of free exercise of religion as set forth in the First Amendment. Under that strict scrutiny test, the government cannot impose a substantial burden on the exercise of a religious adherent‘s sincerely held religious beliefs unless that burden is outweighed by a compelling governmental interest. Sherbert, 374 U.S. at 403-06.2
In Sherbert, the plaintiff was fired from her job for refusing to work on Saturday, the Sabbath day of her faith. The Court held that the state‘s denial of unemployment benefits to the plaintiff substantially burdened her religious exercise by forcing her to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404.
In Yoder, members of the Old Order Amish religion appealed their convictions under a law that required them to send their children to school until the age of sixteen—a violation of the tenets of the Amish religion, which prohibit the schooling of children beyond the eighth grade. The Court held that the state‘s schooling mandate, as applied to three Amish children who had completed the eighth grade but who had not yet reached the age of sixteen, caused a substantial burden because it “affirmatively compel[led] [the Amish], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” 406 U.S. at 218.
The Supreme Court‘s analysis of burdens in Sherbert and Yoder represented a fundamental inquiry: whether the governmental action coerces the individual religious adherent to violate or abandon his sincere religious beliefs. See Hobbie v. Unemployment Appeals Comm‘n of Fla., 480 U.S. 136, 144 (1987) (“[T]he forfeiture of unemployment benefits for choosing [to engage in religious conduct] brings unlawful coercion to bear on the employee‘s choice.” (citing Sherbert, 374 U.S. at 404)); Tilton v. Richardson, 403 U.S. 672, 689 (1971) (plurality)
The Supreme Court specifically addressed the application of Sherbert‘s and Yoder‘s tests to the Government‘s excavation and reconfiguration of the government‘s own land in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). In Lyng, the United States Forest Service wanted to build a road through an area “significant as an integral and indispens[a]ble part of Indian religious conceptualization and practice.” Id. at 442. The road was to be built on Forest Service land, generally available to the public—Indians included. A study by the Forest Service found that the construction of the road “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.” Id. The Indians filed suit, seeking to enjoin the construction of the road.
The Supreme Court held that the construction of the road did not burden the Indians’ religious practices in a way that would require the government to meet the compelling interest test—not because the religious practices were unaffected, but because the construction of the road did not “coerce[]” the Indians “into violating their religious beliefs,” as in Yoder, nor “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens,” as in Sherbert. Id. at 449. In other words, it was irrelevant that “the Indians’ spiritual practices would become ineffectual” or made “more difficult” because there was “no tendency to coerce individuals into acting contrary to their religious beliefs.” Id. at 450. Thus, the burden suffered by the Indians was qualitatively different than the burden required to be proven to obtain relief under Sherbert and Yoder. Even accepting that the road-building project “could have devastating effects on traditional Indian religious practices” or even “virtually destroy the Indians’ ability to practice their religion,” id. at 451, the project did not put the Indians to the choice between violating or abandoning their religious tenets and losing vested benefits or incurring a governmental penalty. Because there was no personal coercion, the new
road did not substantially burden the Indians’ constitutional right to the free exercise of their religion. Id. at 447.3
The
Smith, if anything, construed Lyng as one of several examples where the Court declined to apply the compelling interest test because the government action in that case was not coercive, making the burden it imposed on religious practice not “substantial[]” within the meaning of Sherbert. Emp. Div., Dep‘t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 883 (1990) (citing Sherbert, 374 U.S. at 402–03). Smith explained that the government action in Sherbert “substantially burden[ed] . . . religious practice” because it coerced a religious adherent into violating her beliefs by “condition[ing] the availability of [unemployment] benefits upon [her] willingness to work under conditions forbidden by h[er] religion.” Smith, 494 U.S. at 883 (citing Sherbert, 374 U.S. at 402–03). But the Court had “never invalidated any governmental action on the basis of the Sherbert test” outside the unemployment benefit context because none of the challenged state actions in those cases were coercive. Smith, 494 U.S. at 883. Whether it was the “military dress regulations [in Goldman v. Weinberger] that forbade the wearing of yarmulkes,” the state “prison‘s refusal [in O‘Lone v. Estate of Shabazz] to excuse inmates from work requirements to attend worship services,” the federal statute in Bowen v. Roy “that required [Social Security] benefit applicants . . . to [obtain and] provide their Social Security numbers,” or the “devastating effects on . . . religious practices” caused by the “Government‘s logging and road construction activities on [sacred] lands” in Lyng—these activities, at most, interfered with religious exercise as an incident to the operation of governmental affairs. Smith, 494 U.S. at 883–84 (internal citations and quotations omitted). They did not entice religious adherents into violating the tenets of their faith in exchange for government benefits, as the government had done in Sherbert. See id.
Pre-RFRA cases applying (or refusing to apply) Sherbert‘s compelling interest test only confirm what Smith later observed: that coercion is the sine qua non for what constitutes a “substantial[] burden” under Sherbert. Id. at 883. In Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), a religious adherent was fired for refusing to participate in the production of armaments, and the state denied him unemployment benefits. Although Thomas was a relatively easy application of Sherbert, the Supreme Court took the occasion to reiterate that only personal coercion qualifies as a substantial burden under the Free Exercise Clause: “Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.” Id. at 717–18. The Supreme Court held that a substantial burden was placed on the religious adherent and granted relief under the Free Exercise Clause. Id. at 720.
In Bowen v. Roy, 476 U.S. 693 (1986)—one of the examples that Smith identified as not involving a substantial burden, see Smith, 494 U.S. at 883—an Indian religious adherent challenged the Government‘s internal use of a Social Security number to identify the religious adherent‘s daughter, Bowen, 476 U.S. at 699. The religious adherent testified that the Government‘s use of a Social Security number would “rob” his daughter of “her spirit.” Id. at 697. The Supreme Court explained how the use of the Social Security number was not a substantial burden by drawing a distinction between burdens that coerce the religious adherent to violate or abandon his sincere religious beliefs and those that do not:
The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices . . . .
Id. at 699–700. In other words, “[t]he Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government‘s internal procedures.” Id. at 700. The Supreme Court concluded that the use of the Social Security number did not create a substantial burden, even though it might “rob” the “spirit” of the adherent‘s daughter, because “in no sense d[id] it affirmatively compel [the adherents], by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they f[ound] objectionable for religious reasons.” Id. at 703. The Supreme Court thus denied relief under the Free Exercise Clause. Id. at 712.
Only a few years before RFRA, the Supreme Court decided Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990), in which the Court held that a generally applicable tax does not impose a “constitutionally significant burden on [the religious adherent‘s] religious practices or beliefs.” Id. at 392. In explaining why the tax did not impose a substantial burden, the Supreme Court reasoned that “in no sense has the State ‘conditioned receipt of an important benefit upon conduct proscribed by a religious faith, or denied such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.‘” Id. at 391–92 (alterations adopted) (quoting Hobbie, 480 U.S. at 141).
The lead dissent disagrees, arguing that “pre-RFRA precedents did not limit the kinds of burdens protected under the Free Exercise Clause to the types of burdens challenged in Sherbert (the choice between sincere religious exercise and receiving government benefits) and in Yoder (the threat of civil or criminal sanctions).” Instead, the dissent argues that “the Supreme Court‘s pre-Smith jurisprudence recognizes at least one other category of government action that violates the Free Exercise Clause: preventing a religious adherent from engaging in religious exercise.” The dissent cites two cases to support this theory.
First, the dissent cites Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). In Cruz, Texas state prison officials barred a Buddhist prisoner from using a prison chapel, which was available to prisoners who were members of other religious sects. Id. at 319. Prison officials had also facilitated distribution of religious materials of non-Buddhist faiths. Id. at 319–20. But when the prisoner shared Buddhist religious material with other prisoners, prison officials retaliated by placing the prisoner in solitary confinement and on a diet of bread and water for two weeks, without access to newspapers, magazines, or other sources of news. Id. at 319. Further, the prison officials prohibited the prisoner from corresponding with his religious advisor, even though prison officials facilitated correspondence with religious advisors for prisoners of other faiths. Id.
The Buddhist prisoner sued the prison officials under
The Supreme Court reversed in a five-page, per curiam opinion. The Court held that prisoners enjoy the right to the free exercise of religion and held that the allegations
It was unnecessary for the Court to conduct a detailed analysis of the burden on the religious adherent in Cruz: the religious adherent‘s complaint easily stated enough facts to allege a plausible Free Exercise Clause violation under Sherbert or Yoder. The religious adherent in Cruz alleged that prison officials denied access to governmental benefits that were generally available to similarly situated prisoners of other religions. The denial of those benefits plainly qualified as a cognizable burden under Sherbert, 374 U.S. at 404.7 Further, he alleged that the prison officials placed the prisoner in solitary confinement and on a diet of bread and water for two weeks as punishment for his distribution of religious materials. Those penalties easily qualified as burdens under Yoder, 406 U.S. at 218. Nowhere in the Court‘s decision is there any mention of a First Amendment right to access and use governmental property for exercise of a religious rite.
Second, the dissent cites O‘Lone v. Estate of Shabazz, 482 U.S. 342 (1987). In O‘Lone, prison officials in a New Jersey state prison forced some Muslim prisoners to work outside the prison during workdays, which included Friday afternoons, the Muslim holy day. Id. at 345–47. The Muslim prisoners filed suit to challenge the prison regulation because the regulations prevented the prisoners from attending a religious service, which their faith commanded them to perform on Friday afternoons. Id. at 345. The Supreme Court analyzed the claim not with Sherbert and Yoder‘s compelling interest framework, but with a “reasonableness” test that the Court had used at that time for Free Exercise claims arising in the prison context. Id. at 349. The Court held that the prison regulations were reasonable. Id. at 351–53.
O‘Lone is clearly inapplicable. The Court barely mentioned that the Muslim plaintiffs were barred from attending their religious event and never analyzed whether that bar constituted a qualifying burden under the First Amendment. There was no discussion whether the bar might have constituted or been backed by the denial of a vested governmental benefit or the imposition of a penalty. The Court, of course, did not need to address the issue whether the burden was a qualifying burden because the Court ruled against the prisoners on the grounds that the prison regulations were “reasonable.” Even had the court provided some guidance on whether the denial of access to a religious site was a qualifying burden in O‘Lone, it would have been inapplicable in the present case because
The mere fact that the governmental actions in Cruz and O‘Lone had caused, as one of their effects, what one could describe as the prevention or denial of access to a location for sincere religious exercise, does not mean that the Supreme Court recognized that such an effect constitutes a “substantial burden” for purposes of the Sherbert test. That simply was not a finding in either case.
B. Smith, RFRA, and RLUIPA
In 1990, the Supreme Court decided Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, two individuals were fired from their jobs at a private drug rehabilitation organization because they ingested peyote at a ceremony of the Native American Church. Id. at 874. An Oregon agency denied both individuals unemployment compensation because the agency determined that the individuals had been discharged for work-related misconduct. Id. Oregon courts reversed, holding that Sherbert and Yoder prohibited the denial of unemployment benefits to the religious adherent on the basis of his participation in religious conduct. Id. at 874–76. The Supreme Court, however, disagreed, holding that Sherbert and Yoder‘s substantial burden test does not prevent a state from enacting and enforcing “neutral, generally applicable laws” such as Oregon‘s criminal law prohibition against the use of peyote. Id. at 878–82.
Congress responded to Smith in 1993 by enacting
Against this backdrop, Congress provided the following statutory language: “Government shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
In 1997, the Supreme Court curtailed the scope of
In 2000, in response to City of Boerne, Congress passed a new, different, and narrower statute:
C. Navajo Nation
In 2008, we took Navajo Nation v. United States Forest Service en banc to resolve disagreement over what kinds of burdens qualify as “substantial burdens” on the exercise of religion under
(1) the inability to perform a particular religious ceremony, because the ceremony requires collecting natural resources from the Peaks that would be too contaminated—physically, spiritually, or both—for sacramental use; and (2) the inability to maintain daily and annual religious practices comprising an entire way of life, because the practices require belief in the mountain‘s purity or a spiritual connection to the mountain that would be undermined by the contamination.
Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1039 (9th Cir. 2007) (vacated panel opinion). The panel opinion held that the planned use of recycled wastewater would create a substantial burden on the Indians’ religious practices, and the panel granted relief under
In reversing the panel decision, our en banc decision noted that
The
Since our decision in Navajo Nation, a majority of circuits have followed suit, defining the term “substantial burden” as including only government actions which coerce individual religious adherents to violate or abandon their sincere religious beliefs.8
DISCUSSION
A. The Textual and Contextual Evidence Compels the Conclusion That Congress Intended “Substantial Burden” to Be Defined by Its Case-Based, Technical Definition, Rather Than Its Dictionary Definition.
“Words are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012)
Four circuits have used a definition of “substantial burden” that includes both governmental actions that coerce religious adherents to violate or abandon their sincere religious beliefs and governmental actions that prevent the religious adherent from participating in religiously motivated conduct. See Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014); Haight v. Thompson, 763 F.3d 554, 565 (6th Cir. 2014); Lovelace v. Lee, 472 F.3d 174, 187–88 (4th Cir. 2006); Murphy v. Mo. Dep‘t of Corrs., 372 F.3d 979, 988 (8th Cir. 2004). The dissent cites to these circuits as support for its proposed test. But these four circuits failed to provide any statutory, textual, or historical reason for expanding the definition of “substantial burden.” “An authority derives its persuasive power from its ability to convince others to go along with it.” Regents of the Univ. of Cal. v. U.S. Dep‘t of Homeland Sec., 908 F.3d 476, 509 (9th Cir. 2018) (quoting Bryan A. Garner, et al., The Law of Judicial Precedent 170 (2016)), rev‘d in part and vacated in part on other grounds, 140 S. Ct. 1891 (2020); see also Chad Flanders, Toward A Theory of Persuasive Authority, 62 Okla. L. Rev. 55, 65 (2009) (“[T]he force of persuasive authority is the unforced force of the better argument.“). Decisions from other circuits made without any analysis are not valuable as persuasive authorities.
(emphasis added). When a statute addresses a subject already addressed in jurisprudence, “ordinary legal meaning is to be expected, which often differs from common meaning.” Id. at 73 (emphasis added). “If a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Id. (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)) (alteration adopted); see also Twitter, Inc., v. Taamneh, 143 S. Ct. 1206, 1218 (2023); Sekhar v. United States, 570 U.S. 729, 733 (2013).
“If a statute uses words or phrases that have already received authoritative construction by the jurisdiction‘s court of last resort, . . . they are to be understood according to that construction.” Scalia & Garner at 322. Of course, “[t]he clearest application” of this canon occurs when the legislature codifies a test previously expressed in judicial cases. Id.; see also United States v. Hansen, 143 S. Ct. 1932, 1942 (2023) (“[W]hen Congress ‘borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.‘“) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)).9
When the full context is considered—the discussion in pre-Smith jurisprudence of which governmental actions generate cognizable burdens, the agreement between the majority and concurrence in Smith that only those governmental actions that coerce the religious adherent to violate or abandon his religious tenets are cognizable burdens, the use of the term “substantial burden” by both the majority and concurrence in Smith to describe such burdens, the fact that
This view is confirmed by two pieces of textual evidence in the body of
1.
When Congress expressly states a purpose for a statute,10 that statement of purpose “is ‘an appropriate guide’ to the ‘meaning of the statute‘s operative provisions.‘” Gundy v. United States, 139 S. Ct. 2116, 2127 (2019) (quoting Scalia & Garner at 218) (alteration adopted). “Purpose sheds light . . . on deciding which of various textually permissible meanings should be adopted.” Scalia & Garner at 57.
Congress‘s expressed desire to “restore” the free exercise of religion test “as set forth in prior federal court rulings” is a strong indication that Congress meant to have the term “substantial burden” in
The lead dissent argues that this analysis prioritizes
2.
But even more impressive is that in no statute other than
Sherbert and Yoder both held that no government action can burden an individual‘s free exercise of religion without using means narrowly tailored to a compelling governmental interest. See Sherbert, 374 U.S. at 406; Yoder, 406 U.S. at 213–15. If that was all the law that Congress wanted to “restore,”
The material difference between Sherbert and Yoder was in the kind of coercive burden the Supreme Court recognized as substantial in each case. In Sherbert, the Court recognized that the denial of governmental benefits to which the claimant was otherwise entitled because of her
We must then ask why Congress cited only Sherbert and Yoder. The canon of statutory interpretation expressio unius est exclusio alterius teaches us that “[t]he expression of one thing implies the exclusion of others.” Scalia & Garner at 107. Thus, by citing only Sherbert and Yoder, Congress did more than merely endorse the two types of coercive burdens recognized in those cases as determinative of the scope of the term “substantial burden.” Congress could have just as easily cited Cruz or O‘Lone as additional examples of cases where the burden at issue was “substantial,” but it did not. Congress therefore implied that any other kinds of burdens on religious exercise are excluded from the meaning of “substantial burden” in
Nor does
These canons of statutory interpretation reinforce the conclusion that
or the threatened imposition of a penalty because of the religious adherent‘s participation in protected
3. Hobby Lobby did not remove or alter the technical definition of “substantial burden” adopted by Congress.
The lead dissent cites Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706, 714-15 (2014), for the proposition that
The dissent‘s citation to Hobby Lobby is an unfortunate example of “snippet analysis“: the use of selected words in a case as the basis for an argument, without mention of the case‘s actual issues, reasoning, and holding, or to what those words actually referred to in that case. See Humphrey‘s Executor v. United States, 295 U.S. 602, 627 (1935) (“[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. . . . [T]heir possible bearing on all other cases is seldom completely investigated.” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400 (1821) (Marshall, C.J.))).
The Hobby Lobby decision lends no support to the dissent‘s proposed expansion of the definition of “substantial burden.” At issue in Hobby Lobby was a governmental mandate that required employers to provide insurance coverage to employees for certain forms of contraception. Id. at 689-90. The government threatened penalties against the employers if they did not comply with the mandate. The employers sued to enjoin the imposition of such penalties, invoking
Hobby Lobby emphasized that
B. The Textual Differences Between RFRA and RLUIPA Make RLUIPA Cases Inapposite in the RFRA Context.
Rather than utilize straightforward methods of statutory interpretation based on the language of
This reasoning is erroneous for two reasons. First, as explained by the majority,
What the dissent refers to as ”
For
Even accepting that the institutionalized-persons portion of
When addressing claims under the land-use provision of
The Supreme Court has never held that
Application of normal tools of statutory interpretation to
When the law provides such a clear result under
William of Ockham‘s razor teaches that when one is faced with two competing ideas, the simplest explanation is generally the best. See United States v. Newhoff, 627 F.3d 1163, 1166 (9th Cir. 2010). “Congress does not ‘hide elephants in mouseholes’ by ‘alter[ing] the fundamental details of a regulatory scheme in vague terms or ancillary
C. The Lead Dissent Understates the Sea Change That Its Proposed Definition of “Substantial Burden” Would Cause.
For the entire history of our nation‘s Free Exercise jurisprudence, we have focused our analysis on “what the government cannot do to the individual, not . . . what the individual can exact from the government.” Lyng, 485 U.S. at 451 (quoting Sherbert, 374 U.S. at 412 (Douglas, J., concurring)). Yet the lead dissent would violate this simple principle by holding that
If the dissent‘s reading of
To obtain such an easement of access and use, the only determinative issue would be whether the religious adherent sincerely believes that such access to federal land is important to him for his religious exercise. Binding precedent forbids us from evaluating whether the religious adherent‘s professed need to access federal land is true to his religion‘s tenets. Id. at 449-50 (majority op.). Equally out of bounds is whether the access
So there is no limiting principle to the dissent‘s proposal of defining “substantial burden” to include all government actions “prevent[ing] or den[ying] access to sincere religious exercise.”19 The result of each case would turn on the sole issue of the litigant‘s religious sincerity. And when assessing that sincerity, the district court would not be permitted to ask whether the religious adherent‘s profession of faith is “acceptable, logical, consistent, or comprehensible to others.” Thomas, 450 U.S. at 714. In addition, if the religious adherent only recently began to profess his beliefs, that would be generally irrelevant because, after all, it is possible that his beliefs were simply “late in crystallizing.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quoting Ehlert v. United States, 402 U.S. 99, 103 (1971)); see also Hobbie, 480 U.S. at 144 (“The timing of [the plaintiff]‘s conversion is immaterial.“). With so many traditional indicators of testing sincerity off the table, a district court might be required to grant a religious easement to nearly any religious adherents who brought a land-based
This low bar the dissent would set to obtain such religious easements contrasts sharply with the burden that the government would be required to meet to forestall or extinguish the easement: the compelling interest test. This test requires the government “to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest.” City of Boerne, 521 U.S. at 509. Our relatively brief review of plaintiffs’ claims under the dissent‘s proposed test would be followed by a searching and detailed inquiry of the government‘s motivations and methods. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006). And, of course, it would not be enough for the government merely to assert a broad interest in the security of a particular piece of land: the government must justify the application of its exclusionary policies to each individual religious adherent who seeks access. See Hobby Lobby, 573 U.S. at 726. Courts would be required to “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro, 546 U.S. at 431. The government would be forced to face “the most demanding test known to constitutional law,” City of Boerne, 521 U.S. at 509, just to keep trespassers, albeit devout trespassers, off its land and out of its installations and buildings.
In future cases, we would be asked to determine whether religious exercises are “oppresse[d] or restrict[ed] . . . to a considerable amount,” and we would thus be forced to conduct a quantitative, rather than qualitative, analysis. In other words, we would have to assess how much the government action interferes with the religious practice—i.e., an examination of the effects of the government action—rather than in what way the government action interferes with the religious practice—i.e., an examination of the kind of government action at issue. This quantitative approach would be inconsistent with Supreme Court precedent, as explained above, but it also would be very difficult for a court to administer.
So long as “substantial burden” is defined by reference to the character of the governmental action, rather than the particular effect it has on the claimant, the test is not difficult to administer: we simply ask whether the government action involves coercion in the form of denying the religious adherent a vested benefit or imposing a penalty on the religious adherent because of his participation in religiously motivated conduct. But for a court to determine whether a religious practice has been “oppresse[d] or restrict[ed] . . . to a considerable amount,” the court would be required to assess the importance of the particular religious practice to the religious adherent and to the religious adherent‘s religion, and assess the extent to which the practice is impaired by the relevant governmental action—inquiries that not only stray far from our expertise but also enter areas into which the Supreme Court has repeatedly told us courts cannot venture.20 See Lyng, 485 U.S. at 449-50 (“This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, and accordingly cannot weigh the adverse effects on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual‘s spiritual activities should be subjected to a different constitutional analysis than the other.” (citation omitted)); id. at 451 (“Whatever may be the exact line between
To convince the reader that its proposed test is “narrow,” the dissent attempts to distinguish between the facts of this case and the facts of Navajo Nation and Lyng on the grounds that the Indians in Navajo Nation and Lyng suffered only “subjective” burdens, whereas the Indians here will suffer an objective burden through the loss of access to the land. However, the government actions in both Navajo Nation and Lyng undoubtedly meet the dissent‘s proposed test. In both cases, the Government “prevent[ed] [the religious adherents] from engaging in sincere religious exercise.” In Lyng, the excavation and construction of the road caused “the Indians’ spiritual practices [to] become ineffectual.” 485 U.S. at 450. In Navajo Nation, 479 F.3d 1024, 1039 (9th Cir. 2007), the use of recycled wastewater caused “the inability to perform” certain religious ceremonies and destroyed “an entire way of life.”
The ability to perform a ceremony gutted of all religious meaning cannot be equated to the ability to perform the full religious ceremony. Access to an area stripped of spiritual significance—the mountain in Navajo Nation, the land near the road in Lyng—is not the same as access to an extant shrine for the religious adherent who wishes to use the land as a shrine.21 The “sincere religious exercises” in Navajo Nation and Lyng were not only “prevent[ed] or denie[d],” they were completely destroyed, even if the lands themselves were not destroyed.
In any event, the dissent‘s discussion of what might count as the “prevent[ion] or deni[al of] access to sincere religious exercise” is frankly irrelevant in light of the fact that such prevention or denial of access would be merely one “example” of a substantial burden under the dissent‘s proposed test. The real question under the dissent‘s proposed test would be whether the governmental action “oppresses or restricts” the religious exercise “to a considerable amount.” Under that test, the government actions in Navajo Nation and Lyng would easily qualify as “substantial
The dissent, in sum, favors the plaintiffs in this case over the plaintiffs in Lyng and Navajo Nation simply because the plaintiffs in this case will lose an aspect of their religious practice that one can see and hear, whereas the plaintiffs in Lyng and Navajo Nation lost an intangible aspect of their religious practices. In short, the dissent would distinguish and prioritize the tangible aspects of religious activity over the intangible. This distinction finds no support in our precedent. Cf. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947) (“[T]he Federal Government . . . can[not] pass laws which aid one religion . . . or prefer one religion over another.“).
D. Even Were Apache Stronghold‘s Claim Cognizable Under RFRA, the Land Exchange Act Mandates That the Land Exchange Occur.22
Most claims under
The three conditions are simple: (1) the Secretary must “engage in government-to-government consultation with affected Indian tribes concerning issues of concern to the affected Indian tribes related to the land exchange,” and then “consult with Resolution Copper and seek to find mutually acceptable measures to (i) address the concerns of the affected Indian tribes; and (ii) minimize the adverse effects on the affected Indian tribes resulting from mining and related activities on the Federal land conveyed to Resolution Copper under this section,”
Congress knew the adverse effects that the Land Exchange Act would have upon the Indian tribes with respect to the planned excavation of the Oak Flat area. Wendsler Nosie, Sr., Chairman of the San Carlos Apache Tribe and leader of Apache Stronghold, testified before the House Natural Resources Committee, Subcommittee on National Parks, Forests, and Public Lands, in a hearing on the Land Exchange Act. Nosie testified that “[t]he lands to be acquired and mined . . . are sacred and holy places.” Southeast Arizona Land Exchange and Conservation Act of 2007: Hearing on H.R. 3301 before the H. Comm. on Nat. Res., Subcomm. on Nat‘l. Parks, Forests, and Pub. Lands., 110th Cong. 18 (2007). Nosie explained that Apache Leap is “sacred and consecrated ground for our People” because “seventy-five of our People sacrificed their lives at Apache Leap during the winter of 1870 to protect their land, their principles, and their freedom.” Id. at 19. He testified
Ultimately, Congress struck a compromise. The Land Exchange Act directed the Forest Service to transfer the Oak Flat parcel to Resolution Copper,
The question is whether Congress‘s careful compromise in the Land Exchange Act can be undone by Apache Stronghold‘s invocation of a prior Act of Congress—namely,
1. RFRA‘s Anti-Implied-Repeal Provision
Such statutory language purporting to restrict the ability of later Congresses to repeal an act of an earlier Congress by implication cannot bar all implied repeals. See Great N. Ry. Co., 208 U.S. at 465 (“As the section of the Revised Statutes in question has only the force of a statute, its provisions cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a subsequent enactment.“).
In Dorsey v. United States, 567 U.S. 260 (2012), for example, the Supreme Court invalidated a statute which purported to authorize criminal prosecutions under any later-repealed criminal statute that was in force at the time of the crime unless the repealing statute “expressly provide[d]” that such prosecutions would be barred.23 The Court held:
statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified. And Congress remains free to express any such intention either expressly or by implication as it chooses.
Id. at 274 (emphasis added) (citations omitted). Thus, a statutory provision that requires future Congresses to use
express language to exempt an enactment
However, that is not to say that the anti-implied-repeal language has no effect whatsoever. In Dorsey, the Court said that the anti-implied-repeal provision created “an important background principle of interpretation” and that the provision required courts, before finding an implied repeal in the face of an anti-implied-repeal provision, “to assure themselves that ordinary interpretive considerations point clearly in that direction.” Id. at 274-75; see also Marcello v. Bonds, 349 U.S. 302, 310 (1955) (giving significant weight to an anti-implied-repeal provision). The Supreme Court “has described the necessary indicia of congressional intent by the terms “necessary implication,” “clear implication,” and “fair implication,” phrases it has used interchangeably.” Dorsey, 567 U.S. at 274. And in two cases, the Supreme Court has given some weight to RFRA’s anti-implied-repeal provision. See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2383 (2020); Hobby Lobby, 573 U.S. at 719 n.30.24
But the dissent’s proposed method of interpreting anti-implied-repeal provisions is incompatible with the Supreme Court’s method. The Supreme Court has held that one Congress cannot force a future Congress “to employ magical passwords in order to effectuate an exemption” from a statute. Marcello, 349 U.S. at 310. Yet the dissent argues that the Land Exchange Act should be required to employ one of two passwords to avoid the reach of RFRA: either an explicit reference to RFRA or “some variation of a “notwithstanding any other law” provision.” The Supreme Court has held that implied repeals must remain available to future Congresses. See Dorsey, 567 U.S. at 274; Great N. Ry. Co., 208 U.S. at 465. But the dissent argues that an implied repeal, as traditionally understood, is impossible because the Land Exchange Act must include an “explicit[]” exemption to avoid the reach of RFRA. The dissent’s approach affords far too much power to RFRA’s anti-implied-repeal provision.
2. Whether the Land Exchange Act Can Be Reconciled with RFRA
The irreconcilability question must be read in the context of the relief sought by Apache Stronghold. As is relevant to Apache Stronghold’s RFRA claim, Apache Stronghold’s complaint sought a declaration that the land exchange between the United States and Resolution Copper “violate[s] the Religious Freedom Restoration Act.” The complaint prayed that the district court “[i]ssue a permanent injunction prohibiting [the land exchange].” Apache Stronghold’s motion for a temporary restraining order and preliminary injunction filed in the district court sought “to preserve the status quo by preventing Defendants from publishing a Final Environmental Impact Statement (“FEIS“) on the “Southeast Arizona Land Exchange and Resolution Copper Mine Project” and from conveying the parcel(s) of land containing
The Land Exchange Act grants some authority to the Secretary to “minimize the adverse effects on the affected Indian tribes” and to ensure that the land exchange complies with the
Apache Stronghold claims that the Government should be enjoined from transferring the land to Resolution Copper pursuant to RFRA. But that is the one thing that the Land Exchange Act clearly requires. If RFRA did provide a legal basis for Apache Stronghold’s claim, RFRA would be in “irreconcilable conflict” with the Land Exchange Act. See Branch, 538 U.S. at 273.
That is not to say that all potential RFRA claims would be irreconcilable with the Land Exchange Act. Instead of seeking to block the entire land exchange, a plaintiff might, for example, claim that the conditions imposed upon Resolution Copper in the FEIS should be modified to provide greater accommodation for the religious practices of the Indians.
But that is not the claim advanced by Apache Stronghold, and adopted by the dissent, in this case.25 The claim here is that the land exchange should be stopped altogether. And that relief is directly in conflict with the Land Exchange Act. See
CONCLUSION
Pre-RFRA jurisprudence demonstrates that only governmental actions which coerce religious adherents to violate or abandon their religious tenets can constitute “substantial burdens” on the free exercise of religion. See Hobbie, 480 U.S. at 144; Tilton, 403 U.S. at 689; Allen, 392 U.S. at 249; Schempp, 374 U.S. at 223; Lyng, 485 U.S. at 450; Bowen, 476 U.S. at 703. For coercion to affect a religious adherent personally, the coercion must involve either the denial of a vested benefit to the religious adherent or the imposition of a penalty on the religious adherent because of the religious adherent’s participation in religiously motivated conduct. See Hobbie, 480 U.S. at 144; Lyng, 485 U.S. at 449; Bowen, 476 U.S. at 703; Thomas, 450 U.S. at 717-18; Jimmy Swaggart, 493 U.S. at 391-92.
RFRA incorporated this settled definition of the term, and RFRA made this incorporation explicit when it stated that its purpose was to “restore” the free exercise of religion test “as set forth in prior federal court rulings,” and when it directly cited Sherbert and Yoder. The text of the statute and pre-RFRA jurisprudence command
Our en banc decision in Navajo Nation correctly interpreted RFRA, and our limited definition of “substantial burden” has served as a workable test for fifteen years.26
The proposed copper mine would not force the Apache to choose between violating or abandoning their sincere religious beliefs and receiving a governmental penalty or losing a governmental benefit. Without any such coercion, there is no substantial burden. Thus, the Apache’s claim under RFRA must fail.
Moreover, even were the Apache’s claim cognizable under RFRA, the language of the Land Exchange Act is clearly irreconcilable with the Apache’s claim for relief under RFRA. In such cases of direct conflict, the later statute—the Land Exchange Act—must be given effect over the earlier statute—RFRA.
For these reasons, in addition to those expressed in Judge Collins’s majority opinion, I agree that the judgment of the district court must be affirmed, and I dissent from the per curium’s purported overruling of Navajo Nation.
R. NELSON, Circuit Judge, concurring:
In my view, en banc review was warranted to correct our faulty legal test (not the outcome) in Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc). Generally, we adopt the same definition of a term—like “substantial burden” here—when that term is used in similar statutes. For that reason, RFRA and RLUIPA apply the same legal definition of “substantial burden.” Since Navajo Nation was decided, it has become clear that “substantial burden” means more in RLUIPA than the narrow definition we gave it under RFRA. Today, a majority of the panel rejects the narrow construction of “substantial burden” in Navajo Nation. See Per Curiam at 10-11; Murguia Dissent at 180, 202 n.8. Six judges adopt a new test to define “substantial burden” going forward for both RFRA and RLUIPA. See Per Curiam at 10-11. A government act imposes a “substantial burden” on religious exercise if it (1) “requires the plaintiff to participate in an activity prohibited by a sincerely held religious belief,” (2) “prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief,” or (3) “places considerable pressure on the plaintiff to violate a sincerely held religious belief.” Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014); see also Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995) (per curiam) (citing Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir. 1987)) (holding that the “substantial burden” test is met when a religious adherent proves that a government action “prevent[ed] him or her from engaging in conduct or having a religious experience which the faith mandates“); Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir. 2000); Goehring v. Brophy, 94 F.3d 1294, 1299 (9th Cir. 1996); see also Per Curiam at 10-11.
Even Judge Collins’s majority, which I join, adopts a new test without relying on Navajo Nation. As explained more fully in section V, the strained interpretation of “substantial burden” announced in Navajo Nation is not sustainable. In the last 15 years, the Supreme Court and virtually all
But the question remains—can RFRA be used to protect a religious practice exercised on government property? This case raises the prevent prong of RFRA’s “substantial burden” definition announced by our court today. As Chief Judge Murguia’s dissent notes, the ordinary meaning of “substantial burden” suggests that in selling the land, the government is preventing the Apache’s participation by restricting their access to the land. See Murguia Dissent at 195-96. That much is true. But that conclusion conflicts with the Supreme Court’s direction in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). Under Lyng, a “substantial burden” analysis does not apply to the internal affairs of the government. I therefore reach a different conclusion from the same beginning premise as the dissenters.
Preventing access to religious exercise generally constitutes a substantial burden on religion. But the parameters of “substantial burden” are not unconstrained. We cannot ignore RFRA’s statutory context. The Supreme Court has distinguished the boundaries of cognizable burdens under the Free Exercise Clause. Through decades of case law, the Court formulated a test that examined whether there was a cognizable, substantial burden on religious exercise justified by a compelling government interest. In RFRA, Congress then applied the Court’s terminology, essentially codifying both the test and those parameters. Neither the Court nor Congress has defined “substantial burden.” But in Lyng, the Court held that the government’s use and alienation of its own land is not a substantial burden. And the Court repeated that principle even more broadly: “The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. at 448 (citing Bowen v. Roy, 476 U.S. 693, 699 (1986)) (internal citation omitted).
This case thus turns on whether Congress’s codification of “substantial burden” in RFRA overruled Lyng’s application of substantial burden under the First Amendment. I am reluctant to conclude that a Supreme Court opinion is implicitly reversed by Congress when Congress specifically adopts a term used in the Court’s prior opinions. I therefore conclude that Congress through RFRA did not reverse the Supreme Court’s holding in Lyng. As such, I join Judge Collins’s majority to affirm the district court’s denial of injunctive relief.
I
The
Congress acknowledged the impact that the Land Exchange would have on the Apache’s religious practice. It included several provisions in the NDAA to balance this concern. The Land Exchange requires the Secretary to engage in “government-to-government consultation with affected Indian tribes concerning issues of concern to the affected Indian tribes related to the land exchange.”
Noticeably, despite the undisputedly significant impact that would befall Apache religious practice, Congress did not exempt the Land Exchange from RFRA. See Murguia Dissent § II.H. Perhaps Congress declined to do so because it believed that under preexisting Supreme Court precedent, including Lyng, no substantial burden was implicated and RFRA did not apply. This case thus requires us to answer whether RFRA imposes additional strictures on the land transfer.
II
The Constitution provides Congress with plenary power over Indian affairs. See United States v. Lara, 541 U.S. 193, 200-01 (2004);
shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.
In accordance with AIRFA, President Clinton signed
AIRFA does not confer “so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights” and is merely a policy statement. Lyng, 485 U.S. at 455. This paradox fuels the criticism that “despite its assertion of sweeping plenary power over Indian affairs, the federal government has done little of consequence to protect the ability of tribes to access and preserve sacred sites.” Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1297 (2021).
We would be daft to ignore that, historically, the relationship between the American government and native tribes has not been a pristine example of intergovernmental relations. See, e.g., McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020) (“[I]t’s equally clear that Congress has since broken more
Apache Stronghold asserts that Congress has protected native access to government land for religious practices in RFRA, and that the statute prevents the government from transferring Oak Flat to Resolution Copper. I do not agree. We apply the law as Congress wrote it and as the Supreme Court has interpreted it. Examination of the Supreme Court’s pre-RFRA jurisprudence illuminates why RFRA does not provide Apache Stronghold the right it seeks.
III
A
RFRA does not appear in our legal system from the ether. It is a legislative response to the culmination of decades of caselaw interpreting the Free Exercise Clause. So I begin with the Free Exercise Clause.
Religious liberty and the concept of free exercise are grounded in the bedrock of our founding and the structure of our system of government. See generally Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
At the founding, various state constitutions recognized a right to free exercise of religious beliefs. Even before ratification of the First Amendment in 1791, many state constitutions reflected the sentiment that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences.” N.C. Const. art. XIX (Dec. 18, 1776), reprinted in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America 2787, 2788 (Francis Newton Thorpe ed., 1909); see also Nathan S. Chapman, Disentangling Conscience and Religion, Ill. L. Rev. 1457, 1466 n.44 (2013) (listing state constitutional provisions). In Virginia, for instance, Thomas Jefferson drafted a 1779 bill establishing religious freedom that no one “shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion . . . .” A Bill for Establishing Religious Freedom (June 12, 1779), reprinted in 5 Founders’ Constitution.
Virginia’s view was echoed on the national level, too. Of the newly established American government, George Washington said: “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” Letter to The Hebrew Congregation in Newport, Rhode Island (Aug. 18, 1790), The Papers of George Washington, Presidential Series, vol. 6, 1 July 1790–30 Nov. 1790, ed. Mark A. Mastromarino. Charlottesville: University Press of Virginia, 1996, pp. 284–86. Washington echoed this same sentiment to other religious groups: “[t]he liberty enjoyed by the People of these States, of worshipping Almighty God agreeable to their Consciences, is not only among the choicest of their Blessings, but also of their Rights.” From George Washington to the Society of Quakers (Oct. 13, 1789), The Papers of George Washington, Presidential Series, vol. 4, 8 Sept. 1789–15 Jan. 1790, ed. Dorothy Twohig. Charlottesville: University Press of Virginia, 1993, pp. 265–69. Washington conveyed this same sentiment to various religious groups, including Roman Catholics, Presbyterians, the Moravian Society for Gospel, and others. See George Washington to
all religious practice protected by the Free Exercise Clause and our legal system, must track the law.
Even the Founders recognized that religious exercise in a pluralistic society was bound to conflict with government structure. From the beginning, the Founders attempted to reconcile these competing views by distinguishing the freedom to believe from the freedom to act. As to religious freedom, Jefferson said that “the legislative powers of government reach actions only, and not opinions.” The Works, vol. 8 (Correspondence 1793-1798). G. P. Putnam’s Sons, 1905. Jefferson was not alone. Oliver Ellsworth, a member of the Constitutional Convention and later Chief Justice of the United States, wrote: “But while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion.” Connecticut Courant, Dec. 17, 1787, reprinted in 1 Stokes, Church and State in the United States, 535. The question is, what are those cases?
B
The First Amendment right to free exercise of religion is not absolute. The Supreme Court has long formulated a legal framework balancing the interests of religious free exercise against the competing demands of government. For example, the government cannot restrict an individual’s religious opinion but may restrict individual religious action when the government has a sufficient interest. See Reynolds v. United States, 98 U.S. 145, 166 (1878) (While government laws “cannot interfere with mere religious belief and opinions, they may with practices.“).
Braunfeld reflects the early development of the “substantial burden/compelling interest” test that would later be expanded by the Supreme Court and codified by Congress in RFRA. The Court noted: “To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Id. at 606.
The Supreme Court later clarified the government interest analysis. In Sherbert v. Verner, a Seventh-day Adventist was terminated from her job and rejected alternative employment because she would not work on Saturday, her Sabbath. 374 U.S. 398, 399 (1963). South Carolina law barred her unemployment benefits because she declined an alternate suitable employment offer. See id. at 401.
The Court held that South Carolina’s law was unconstitutional because the burden on Sherbert’s exercise acted as a fine imposed against her worship and was not justified by a compelling state interest. See id. at 403 (“[A]ny incidental burden on the free exercise of appellant’s religion may be justified by a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.“” (quoting NAACP v. Button, 371 U.S. 415, 438 (1963))). The Court first examined whether Sherbert’s claim fell within the class of cognizable Free Exercise claims. See id. at 402-03. Because it was cognizable, the Court then examined whether Sherbert suffered a burden to her religious practice and whether a compelling state interest justified that “substantial infringement on [Sherbert’s] First Amendment right.” Id. at 403-06.
A decade later, the Court reiterated that in some cases the government can regulate “religiously grounded conduct.” Wisconsin v. Yoder, 406 U.S. 205, 220-21 (1972). The Court did not use the phrase “substantial burden” but invoked the same theory: Wisconsin could not require religious parents to send their children to school until age 16 because “only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion.” Id. at 215, 220.
The Court returned to the idea of a “substantial burden” another decade later. See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 717-18 (1981). It held that, while compulsion regarding religious exercise could be incidental, “the infringement upon free exercise is nonetheless substantial.” Id. at 718. Because Thomas quit his job due to his religious convictions against producing military weapons, the denial of unemployment benefits was an unconstitutional burden. See id. But the Court also stated that “[t]he mere fact that the petitioner’s religious practice is burdened
The Court continued to make clear that its balancing framework did not guarantee relief for all religious burdens, even if those incognizable burdens were substantial in the ordinary sense. See United States v. Lee, 455 U.S. 252, 257 (1982) (“The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry.“). The Court held that “[n]ot all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” Id. (internal citations omitted). The Court did not analyze how substantial the burden of the tax law was on Amish beliefs when it analyzed whether the burden was cognizable. See id. at 257. The Court instead couched its holding on the government’s “very high” interest in managing the social security system. Id. at 259. And the government’s compelling interest in preserving the social security program outweighed the burden on religious exercise. See id. at 261.
The Court followed up in Bowen v. Roy, in which Native American parents challenged the constitutionality of requiring a social security number for their child to receive federal food stamps and related benefits. 476 U.S. 693 (1986). The parents believed that a social security number would “rob the spirit.” Id. at 696. In rejecting the religious challenge, the Court echoed that “[n]ot all burdens on religion are unconstitutional.” Id. at 702.
The Court again noted that the First Amendment does not “require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.” Id. at 699 (emphasis omitted). Instead, “[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. The Court in Bowen did not analyze whether there was a “substantial burden” on any religious practice; it determined that the claim itself was not cognizable. Id. at 700 (“Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets.“).
Two years later, the Court decided Lyng, the most factually relevant case here. In Lyng, Native American tribes challenged the construction of a road connecting two towns. 485 U.S. at 442-43. The proposed six-mile paved road would affect sacred area used for religious purposes and rituals by Yurok, Karok, and Tolowa Indians. See id. A study commissioned by the U.S. Forest Service concluded that constructing the road “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples.” Id.
The Court declined to interpret the Free Exercise Clause as permitting a significant
Lyng’s analytical framework was not new. The Court started by assessing whether the harms alleged were cognizable under the First Amendment, holding that “[w]hatever rights the Indians may have to the use of the area . . . those rights do not divest the Government of its right to use what is, after all, its land.” Id. at 452-53.
And the Court acknowledged that the burden on religion was substantial because “the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices.” Id. at 451. No doubt a “devastating” impact that would foreclose religious practice is substantial in the ordinary sense. See Substantial, BLACK’S LAW DICTIONARY (6th ed. 1990) (“Of real worth and importance; of considerable value; valuable.“). But, like in several prior cases, the Court determined that even the potential foreclosure of the religious practice did not render the tribes’ religious claim cognizable under the First Amendment. See Lyng, 485 U.S. at 451-53. Lyng held that the Free Exercise Clause does not encompass claims relating to government management of its land. See id. And the Court stated Lyng’s holding even more broadly: The “Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. at 448 (citing Bowen, 476 U.S. at 693) (internal citation omitted).
Cases following Lyng but pre-Smith invoked the Court’s preexisting framework, but notably use the phrase “substantial burden.” This represents no new test but articulates the test the Court had formulated all along: “Our cases have established that “the free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.“” Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 384-85 (1990) (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)). Within this framework, the Court separated cognizable substantial burdens from the incognizable. In so doing, it was not applying a uniform or literal dictionary construction of “substantial.” It was defining the applicable constitutional framework.
In the pre-Smith cases, the Supreme Court used different variations to articulate the “substantial burden” standard. See Lee, 455 U.S. at 257 (“The state may justify a limitation on religious liberty” with “an overriding governmental interest.“); Thomas, 450 U.S. at 717-18 (“[T]he infringement . . . is nonetheless substantial.“); Yoder, 406
U.S. at 220 (“A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion.“); Sherbert, 374 U.S. at 406 (assessing whether a compelling state interest justified a “substantial infringement of appellant‘s First Amendment right“). But there is no indication these were different tests; they are consistent applications of the same legal standard over several decades.
Employment Division v. Smith, 494 U.S. 872 (1990), is no exception. The Court again made clear that the Free Exercise Clause recognizes only certain cognizable substantial burdens. And “[u]nder the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.” Id. at 883 (citing Sherbert, 374 U.S. at 402-03; Hernandez, 490 U.S. at 699). Although Justice Scalia‘s majority opinion held that the Sherbert test does not apply to neutral, generally applicable laws, it did not overrule Lyng. Smith, 494 U.S. at 883; see also Collins Maj. at 45-46. Therefore, Lyng is within the very pre-Smith framework reinvigorated by RFRA.
IV
RFRA was a direct rejection of Smith‘s holding that all generally applicable laws that incidentally burden religious practice present no First Amendment claim. See Holt v. Hobbs, 574 U.S. 352, 356-57 (2015). RFRA codified the compelling interest test as set forth by Yoder and Sherbert. See id. As discussed above, under RFRA, a government‘s “substantial burden” on the exercise of religious practice must be justified by a compelling interest narrowly tailored to accomplish that interest.
Like the several cases to predate it, RFRA does not define “substantial burden,” except “as set forth in prior Federal court rulings.”
Shortly after RFRA was passed, the Court held that it only applied to the Federal Government. See City of Boerne v. Flores, 521 U.S. 507, 509 (1997). Congress then doubled down on its codified protections for religious exercise. See
Interpreting “substantial burden” in RFRA and RLUIPA consistently also follows rules of construction. Our notion of ”in pari materia,” stemming from the related-statutes canon states that statutes concerning the same topic are to be interpreted together, as though they were one law. See Erlenbaugh v. United States, 409 U.S. 239, 243 (1972) (“[A] legislative body generally uses a particular word with a consistent meaning in a given context.“); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012). To conclude otherwise would depart from the presumption of consistent usage—which has special force where, as here, there is a recognized “connection” between “the cited statute” and “the statute under consideration.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts 172-73. Because RFRA and RLUIPA both restrict governments’ ability to impose “substantial burdens” on religion, there is no reason to define the same term differently. See id.
Although RFRA and RLUIPA share the same definition, neither defines “substantial burden.” And the need to discern that definition is central to this appeal.
V
Before Navajo Nation, our court consistently invoked pre-Smith Free Exercise Clause cases and held that a “substantial burden” under RFRA includes preventing an individual from engaging in religious practice. See, e.g., Goehring, 94 F.3d at 1299 (quoting Graham, 822 F.2d at 850-51)
We then held that a substantial burden under RFRA “is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).” Navajo Nation, 535 F.3d at 1070 (emphasis added). A majority of the panel reverses this narrow holding of Navajo Nation today—specifically the limitation to “only” the specific circumstances of Sherbert and Yoder. See Per Curiam at 11; Murguia Dissent at 202 n.8. Not only has the Supreme Court foreclosed the definition applied in Navajo Nation, but almost every circuit has declined to adopt such a narrow construction of “substantial burden.” “Substantial burden” is not limited to the burdens that were at issue in Sherbert and Yoder. See Per Curiam at 11; Murguia Dissent at 202. While I conclude that Navajo Nation was wrong for some overlapping and differing reasons than Chief Judge Murguia in her dissent, a majority of the panel rejects that test, thus controlling this question in future cases in this court.
A
The Supreme Court disavowed the narrow definition applied by the majority in Navajo Nation and asserted by Judge Bea here. See Bea Dissent at 87-88. The Supreme Court said: “Even if RFRA simply restored the status quo ante, there is no reason to believe . . . that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases.” Burwell, 573 U.S. at 706 n.18.
The Supreme Court, however, has left lower courts to tackle the underlying definitional question; it has never defined a “substantial burden” in post-Smith cases, either. In Burwell, the Court had “little trouble concluding” that the contraceptive mandate, which permitted millions of dollars in fines, constituted a substantial burden on the exercise of petitioner‘s religious beliefs. Id. at 719-20, 726. And in Holt, the Court found that a prison grooming policy constituted a substantial burden because petitioner was required to shave his beard in serious violation of his religious beliefs or face discipline. See 574 U.S. at 361-62.
Here, both Burwell and Holt involved instances of coercion akin to Yoder. See Bea Dissent at 82-83. While true, the Court did not limit its definition of substantial burden to Yoder or to any additional pre-Smith cases. Burwell, 573 U.S. at 706 n.18.
Most of our sister circuits have heeded the Supreme Court‘s words. Many have analyzed “substantial burden” in the presence of coercion like in Sherbert and Yoder. Still, none have expressly limited the definition of substantial burden only to that universe. Contra Bea Dissent at 73 n.8. And aside from whether “substantial burden” under RFRA is the same as under RLUIPA, many of our sister circuits have rejected the notion that a substantial burden must fall only under Sherbert or Yoder, and no other scenario.
To begin with, the Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have treated RFRA and RLUIPA as analogous statutes and define “substantial burden” the same.4 This underscores that
It is not correct, see Bea Dissent at 73, that the majority of circuits have followed Navajo Nation and these circuits limit “substantial burden” to Sherbert and Yoder. Without question, all courts apply the coercion and benefit tests identified in Navajo Nation. But no other court expressly limits RFRA to only those scenarios. The D.C. Circuit, for example, held that a substantial burden exists when the government leverages
“substantial pressure on an adherent to modify his behavior and to violate his beliefs,” as in Sherbert, where the denial of unemployment benefits to a Sabbatarian who could not find suitable non-Saturday employment forced her “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”
Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (first quoting Thomas, 450 U.S. at 718; and Sherbert, 374 U.S. at 404). The First Circuit applied a similar definition and cited Navajo Nation favorably. See Perrier-Bilbo v. United States, 954 F.3d 413, 431 (1st Cir. 2020) (“[C]ase law counsels that a substantial burden on one‘s exercise of religion exists ‘[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs.‘“) (citing Navajo Nation, 535 F.3d at 1069-70). And while the Second Circuit recognizes Sherbert and Yoder as examples of substantial burden, it does not limit the definition to only those cases. See Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996).
Indeed, several other circuits adopt a test inconsistent with Navajo Nation but consistent with our approach today. The Eighth Circuit, for example, has held that a “substantial burden”
must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person‘s individual religious beliefs; must meaningfully curtail a person‘s ability to express adherence to his or her faith; or must deny a person reasonable opportunity to
engage in those activities that are fundamental to a person‘s religion.
United States v. Ali, 682 F.3d 705, 709-10 (8th Cir. 2012) (citing Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008)). There is no way to square the Eighth Circuit‘s definition of “substantial burden” with Navajo Nation.
The Seventh Circuit has also held that RFRA and RLUIPA adopt the same meaning of “substantial burden“: “[A] law, regulation, or other governmental command substantially burdens religious exercise if it ‘bears direct, primary, and fundamental responsibility for rendering a religious exercise . . . effectively impracticable.‘” Korte v. Sebelius, 735 F.3d 654, 682-83 (7th Cir. 2013). The Seventh Circuit definition of “substantial burden” is more expansive than just Sherbert and Yoder.
The Tenth Circuit has similarly held that a government act imposes a “substantial burden” on religious exercise if it: (1) “requires participation in an activity prohibited by a sincerely held religious belief,” (2) “prevents participation in conduct motivated by a sincerely held religious belief,” or (3) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010); Yellowbear, 741 F.3d at 55. This is plainly contrary to our prior holding in Navajo Nation. And it is the legal test the majority adopts today to govern future RFRA cases.
A survey of the caselaw from our sister circuits is clear. Our definition of substantial burden as articulated in Navajo Nation has not been adopted by any court since it was announced 15 years ago. “Substantial burden” is not limited only to coercion or denial of a government benefit as articulated under Sherbert and Yoder. The narrow interpretation of “substantial burden” from Navajo Nation misses a crucial nuance: what satisfies a condition does not automatically set its parameters in stone. The Supreme Court‘s opinions in Holt and Burwell, and the holdings by virtually all other circuits, supports our holding today. Navajo Nation‘s express limitation on the RFRA definition of “substantial burden” is properly overruled and no longer good law.
B
The majority‘s holding overruling Navajo Nation‘s legal test of “substantial burden” is a fully binding holding of the court. Judge Bea claims that the first paragraph of the per curiam opinion is dicta and not well-reasoned. See Bea Dissent at 54 n.1. He is wrong on both counts.
First, the holding is not dicta. To the contrary, when we “confront[] an issue germane to the eventual resolution of the case, and resolve[] it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019) (quoting Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)). Judge Bea quotes that language (Bea Dissent at 54 n.1), but conveniently omits the relevant phrase: “regardless of whether doing so is necessary in some strict logical sense.” He does not get to dictate what reasoning is necessary to the ultimate conclusion in the case; nor does that matter under McAdory. I voted to take this case en banc to correct the wrong legal test of “substantial burden” in Navajo Nation. The issue was central to the parties’ arguments and fully briefed before the district court, the three-judge panel, and the en banc panel.
Judge Bea would resolve this case on narrower grounds. But had a majority of the panel been willing to uphold the legal test for “substantial burden” in Navajo Nation, this case could have been resolved
Moreover, defining “substantial burden” in a case that asks precisely whether the government imposed a substantial burden can hardly be viewed as so tangential to the case to be dicta in any meaningful sense. Nor can a majority‘s rejection of a primary argument raised by the parties before resolving the case on other grounds be considered dicta. It is clearly “germane” under our precedent. We do that every day in our opinions. Judge Bea‘s expansive view of dicta would have far-reaching consequences for potentially hundreds of our opinions if future panels were allowed to parse what issues were germane to support a particular result—and reject all other reasoning as dicta.
Second, the holding is well reasoned. I explain why Navajo Nation applied the wrong legal definition of “substantial burden.” See supra § V.A. And Chief Judge Murguia explains why Navajo Nation was wrong, joined by four other judges. See Murguia Dissent § II.A-C. True, some of the reasoning differs. But much of it overlaps. For example, I agree with Chief Judge Murguia‘s reasoning that RFRA and RLUIPA both apply the same legal test. See Murguia Dissent § II.A (192-94); see also id. at 204 (quoting Holt, 574 U.S. at 356-57, and citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2365 (2019)). I also agree with her reasoning that Navajo Nation adopted a narrow reading of “substantial burden.” See id. at 201-02. And my analysis that no other circuit has adopted the “substantial burden” test in Navajo Nation largely tracks with her similar reasoning. See id. § II.C (204-05).
Judge Bea‘s contention that the first paragraph of the per curiam opinion is not well reasoned ignores the dozens of pages of reasoning provided in my concurrence and Chief Judge Murguia‘s opinion. “Only ‘statements made in passing, without analysis, are not binding precedent.‘” City of Los Angeles v. Barr, 941 F.3d 931, 943 n.15 (9th Cir. 2019) (quoting In re Magnacom Wireless, LLC, 503 F.3d 984, 993-94 (9th Cir. 2007)). The first paragraph of the per curiam opinion was neither made in passing nor without analysis. If anything, the holdings in the first paragraph of the per curiam opinion are “too well reasoned.” No reasonable reader (though perhaps aided by a strong dose of caffeine) can walk away after reading the various opinions without a plain understanding of how forcefully a majority of this panel believes that Navajo Nation‘s legal definition of “substantial burden” was wrongly decided and must be overruled to resolve this case; and the reasoning behind that conclusion. Judge Bea is free to dissent from that view. But he cannot bind future panels. No future panel of this court (except a future en banc panel) may adopt Judge Bea‘s dissenting view.
VI
Even in overruling this aspect of Navajo Nation, our inquiry is not complete. We
Two main theories emerge from the majority and concurrences. The majority holds that because Congress “copied the ‘substantial burden’ phrase into RFRA, it must be understood as having similarly adopted the limits that Lyng placed on what counts as a governmental imposition of a substantial burden on religious exercise.” Collins Maj. at 46. I agree, but for additional reasons. I disagree, however, with the separate theory that “substantial burden” is a term of art with a specific definition.5 See Bea Dissent at 88. While RFRA relies on the prior Supreme Court analytical framework of “substantial burden,” that term was never defined as a term of art.
A
It is a longstanding principle that “[w]hen a statutory term is obviously transplanted from another legal source, it brings the old soil with it.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citations and internal quotation marks omitted). The question is what “old soil” regarding “substantial burden” was grafted into RFRA. As explained above, “substantial burden” was not defined by the Supreme Court before the adoption of RFRA. “Substantial burden” or related phrasing was used by the Court not as a definition that could be transplanted, but as a legal framework to apply the Free Exercise Clause. And a legal framework differs from a precise definition.
Judge Bea asserts that we must look only to pre-RFRA cases to define “substantial burden,” because the term was taken by Congress, without modification, from the Supreme Court‘s pre-RFRA First Amendment jurisprudence; because RFRA states that its goal is to restore the test used by pre-RFRA federal court rulings; and because RFRA directly cites two Supreme Court decisions—Sherbert and Yoder—as determinative of the scope of the term “substantial burden.” See Bea Dissent at 76-83. But even taking these three assertions to their logical conclusions, this does not cabin “substantial burden” to Sherbert and Yoder.
1
As outlined above, “substantial burden” was used in several pre-Smith and pre-RFRA cases and referenced a prior analytical approach. See supra § III.B; Jimmy Swaggart Ministries, 493 U.S. at 384-85; Hernandez, 490 U.S. at 699. Congress adopted “substantial burden” from those “prior Federal court rulings.”
This aligns with how the Supreme Court described its own Free Exercise Clause jurisprudence. For example, the Court in Sherbert held that the government may not compel affirmation of a belief or penalize groups for holding certain views. 374 U.S. at 402. Same with Bowen: Free Exercise violation arises when “compulsion of certain activity with religious significance was involved.” 476 U.S. at 704. These holdings describe categories of claims protected by the First Amendment, but do not define “substantial burden” itself. There is again no definition of “substantial burden.”
Thus, the legal context here reveals no technical definition or term of art.
2
Judge Bea next asserts that there is no evidence that Congress intended to expand or alter the definition of “substantial burden” in pre-RFRA cases.6 See Bea Dissent at 82. But this again assumes, incorrectly, that there ever was a precise definition. True, RFRA‘s use of “substantial burden” strongly supports the conclusion that Congress was satisfied with that portion of the test as set forth in prior federal court rulings. But that does not mean that the terms were defined as a term of art. Cf. Bea Dissent at 88.
Indeed, our sister circuits do not speak of “substantial burden” as a term of art. See, e.g., Mack, 839 F.3d at 286; U.S. Navy Seals 1-26, 27 F.4th at 336; New Doe Child #1, 891 F.3d at 578; Korte, 735 F.3d at 654; Hobby Lobby, 723 F.3d at 1114; Midrash, 366 F.3d at 1214; Murphy, 372 F.3d at 979. And for good reason: There is no definition by which they could do so. So while Lyng forecloses Apache Stronghold‘s RFRA claim here, see Collins Maj. at 35, that is not because Lyng is part of any “old soil” that was used to define “substantial burden,” Bea Dissent at 75. Indeed, Lyng does not even use “substantial burden” or any analogous framing of the phrase. Lyng therefore cannot be read as establishing a precise definition of “substantial burden” “carried over into the soil” of RFRA. Taggart, 139 S. Ct. at 1801 (emphasis added).
3
Judge Bea‘s approach, which purports to be one grounded in the statute‘s text, also violates fundamental principles of textualism. See Bea Dissent at 74-89. His application of the soil theory disregards a textual analysis of half of RFRA‘s statutory language. The words of a governing text are of paramount concern. We must analyze those words in their full context and not focus exclusively on particular provisions. See Textualism, BLACK‘S LAW DICTIONARY (11th ed. 2019).
Here, Judge Bea stresses that RFRA directly cites Sherbert and Yoder. See Bea Dissent at 77-81. But this only addresses half of the relevant textual inquiry.
Congress explicitly codified the test formulated in Sherbert and Yoder. But it did far more than that. It also extended RFRA‘s reach to include any other substantial burdens (consistent with the Supreme Court‘s application) on religious practice. Congress employs not one but two uses of “and.”
Not only should we not read the statutory text out of existence, we also ought not read words into RFRA that are not there. That certain members of Congress made statements about RFRA‘s scope as Congress debated its enactment does not provide any reliable evidence of RFRA‘s meaning. See VanDyke Concurrence at 155-56. “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring). The use of such legislative history has been properly criticized as being “neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of the statutes of the United States . . . .” Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia, J., concurring); see also Does 1-6 v. Reddit, Inc., 51 F.4th 1137, 1146 (9th Cir. 2022) (R. Nelson, J., concurring). And that remains true even though one of the comments came from Senator Hatch who sponsored and championed RFRA. Particularly when legislative history supports our textual interpretation of a statute, we must even more vigilantly guard against encroaching on fundamental statutory principles of construction.7 Therefore, our assessment of substantial burden and of any implication of pre-RFRA cases, namely Lyng, must come from analysis grounded in the text. And because “substantial burden” is not a term of art with a specific definition, the soil theory is inapplicable.
B
I ultimately agree with Judge Collins‘s majority opinion, which relies on a more
But construction is different than definition. Compare Construction, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“The act or process of interpreting or explaining the meaning of a writing“) with Definition, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“The meaning of a term as explicitly stated in a drafted document such as a contract, a corporate bylaw, an ordinance, or a statute“). Here, the Supreme Court has not defined “substantial burden.” Even so, the Court has construed the term. We apply that context to this case. Lyng is an authoritative construction that the substantial burden test codified in RFRA is inapplicable to certain challenges, including one in which the government manages its own land. True, the Smith majority rejected that the application of the Sherbert test strictly turned on “the government‘s conduct of ‘its own internal affairs.‘” 494 U.S. at 885 n.2 (citing Lyng, 485 U.S. at 439). But this was to justify Smith‘s rule of general applicability, which was expressly overruled in RFRA. RFRA, however, does not address, nor overrule Lyng.
This said, I do not read RFRA as enshrining just Justice O‘Connor‘s view in her Smith concurrence. Cf. Collins Maj. at 46. Justice O‘Connor‘s articulation of Sherbert‘s compelling interest test in her Smith concurrence was not her mere opinion, nor was it “her” test—it was the test established by decades of judicial precedent. Thus, in overruling Smith, Congress codified this preexisting framework in RFRA. And it follows that because RFRA‘s stated purpose was to reject Smith,
(“Congress legislates against the backdrop of existing law.“). RFRA thus adopted the term “substantial burden” from the Court‘s prior construction of the
I also have some reservations about Judge Collins‘s broad categorization of the Supreme Court‘s opinion in Terry Williams. That theory allows us to infer the meaning of a word or phrase when “‘broader debate and the specific statements’ of the Justices in a particular decision concern ‘precisely the issue’ that Congress later addresses in a statute that borrows the Justices’ terminology.” Collins Maj. at 41-42 (quoting Terry Williams, 529 U.S. at 411-12). There is good reason to be cautious of an overapplication of this theory. The Supreme Court
Given these concerns, this theory should be used sparingly. But it is an appropriate application when considering a unique context like habeas in Terry Williams and an equally unique statute like RFRA where Congress explicitly adopted a term from multiple cases to codify that legal framework into law. See Smith, 494 U.S. at 883 (“Under the
The ultimate question is whether RFRA overrules Lyng. As explained above, the stronger case is that Lyng remained part of the “substantial burden” analysis.8 The Supreme Court has been clear: “‘If a precedent of this Court has direct application in a case,’ . . . a lower court ‘should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.‘” Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2038 (2023) (citing Rodriguez de Quijas v. Shearson / Am. Express, Inc., 490 U.S. 477, 484 (1989)). “This is true even if the lower court thinks the precedent is in tension with ‘some other line of decisions.‘” Id.
A commendable critique of Lyng might be that its holding lacks in originalist or textualist support. As Smith has been deeply criticized for its lack of original or textual grounding, the same may be said about Lyng, which Smith cites repeatedly. Cf. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1888 (2021) (Alito, J., concurring) (Smith “can‘t be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment‘s adoption.“). Justice Alito concludes that “the ordinary meaning of ‘prohibiting the free exercise of religion’ was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith.” Id. at 1896. Under that definition, perhaps it is time for the Supreme Court to revisit Lyng. But that is a task for a different Court on a different day.
At any rate, Lyng remains the law. There, the Supreme Court held that the government action at issue was not a substantial burden because the
VII
RFRA is a unique statute. While the dissent raises a plausible textual interpretation of “substantial burden,” I ultimately disagree. In adopting RFRA, Congress used a specific term—“substantial burden“—which should reasonably be read to reject Smith but incorporate prior Supreme Court construction of that term. While we lack a precise definition, we are given guideposts. And Lyng is one of those.
The phrase “substantial burden” does not exist in a vacuum. Rather, decades of Supreme Court precedent establish that only certain forms of substantial burdens are cognizable as that term is used to apply the Free Exercise Clause. And when the government seeks to manage its internal affairs and operate on its own land, no such cognizable burden exists under RFRA. Congress then codified this standard and its associated boundaries in RFRA. Because RFRA does not overrule the Supreme Court‘s binding precedent in Lyng, Apache Stronghold has no viable RFRA claim here.
VANDYKE, Circuit Judge, concurring:
I agree with the majority that our decision in this case is controlled by Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). I write separately to elaborate on why the alleged “burden” in this case is not cognizable under the
I.
Enacted in response to one of the most criticized Supreme Court decisions in history,1 RFRA was a laudable attempt to broadly restore religious liberty. But like any rights-endorsing statute, no matter its scope, RFRA has its limits. A cognizable RFRA claim arises only when (1) the government (2) substantially (3) burdens (4) religious exercise.
Because it is undisputed that the Apaches’ desire to use Oak Flat to worship and conduct ceremonies qualifies as religious exercise, the only issue before our court is whether the transfer is an instance of the government burdening the Apaches’ religious exercise as that action has long been understood under RFRA and the Free Exercise Clause. After considering the logic underlying RFRA, and then reviewing the proper Free Exercise Clause and RFRA frameworks, it becomes apparent that the government does not burden religious exercise by refusing to ensure the government‘s own property remains available to enable it.
A. A commonsense reading of RFRA does not suggest the government burdens religion by refusing to use its property to enable religious activity.
Notwithstanding the volume of ink spilt today by our en banc court across multiple opinions, it‘s safe to say that we all agree on at least one thing: RFRA provides a claim for some—but not all—burdens that a person may experience in relation to his or her religious exercise. For starters, the burden must have been imposed by a particular entity—namely, the government. And related to that, when the government acts (or fails to act), not all of its actions (or inactions) that may have some incidental effect on an individual‘s religious exercise are deemed to “burden” that person‘s religious exercise within the meaning of our guarantees of religious freedom.2
This is confirmed by both common sense and the ordinary meaning of the verb “burden,” as a few illustrations will show. Imagine, for example, that a Muslim believes he must complete a religious pilgrimage to Mecca during his lifetime. But he lacks the money to do so. If his sister has enough money to pay for the trip but refuses to give it to him, no one would seriously claim that the sister “burdened” her brother‘s religious exercise by refusing to give him her money to enable his exercise. Sure, there is a sense in which the brother faces a burden on his religious exercise: he doesn‘t have something he needs to enable it. But few if any would say his sister caused that burden by refusing to give him her money.
If our example were changed slightly so that the brother asked the government instead of his sister for the money, the result would be unchanged. Characterizing the government‘s unwillingness to give its resources to our disadvantaged Muslim friend as a government-imposed burden on his religious exercise would be no less strange than in our first example.
That is the key to this case. Much has been said about the substantiality of the burden the Apaches will experience when the government‘s Oak Flat property is traded and eventually destroyed. It is certainly true that the effect is substantial. But its substantiality is irrelevant in this case. Even assuming one could counterintuitively characterize the government‘s unwillingness to give someone its property as a “burden,” such a burden is not the type of government-imposed burden that is cognizable under RFRA or the
B. Under the Free Exercise Clause, the government does not burden religious exercise by managing its own property.
The
The understanding that a refusal to subsidize does not burden religious exercise is obviously not limited to just the government‘s money. A Catholic priest can no more demand that the government provide him with communion wine than he can demand that the government provide him with money to buy that wine. An elder of the Church of Latter-Day Saints can‘t insist that the government give him either a bicycle or the cash to buy one. Nor can a pastor require that the government provide him a church on government land so that he can better serve his flock. As in our initial Mecca example, the government has not “burdened” anyone‘s religious exercise in any of these examples by withholding its own resources.
Of course, every level of government in our nation distributes a variety of government benefits to a variety of recipients. And when the government does that, it cannot do so in a way that discriminates against or between religions. In Sherbert, for example, a state government provided unemployment benefits to workers who required Sunday off to practice their faith, but not to those whose religion required them to take Saturday off. 374 U.S. at 399-400, 406. The Supreme Court correctly concluded that the
But of course, nowhere did Sherbert (or any case since) conclude that the government had to provide unemployment benefits to anyone in the first instance; it simply concluded that if the government chose to do so, it couldn‘t religiously discriminate. See, e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017) (“[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.“). I‘m not aware of any case applying Sherbert‘s anti-discrimination principle that holds the government must either start providing or continue providing some government benefit—again, those cases simply stand for the reasonable proposition that if the government is doling out benefits, it must not discriminate against religion in the process of doing so.
Unsurprisingly, the Supreme Court has also made clear that the
Both the Yoder type of burden and Sherbert type of burden, while different, converge under a single concept: government coercion. Yoder involved the most direct form of coercion: violate your religious scruples or be punished. Sherbert‘s coercion is less direct but not necessarily less coercive: violate your religious scruples or be denied an otherwise available government benefit. Both the Yoder and Sherbert types of government coercion are conceptually quite different from a theoretical third type: the government simply refusing to give someone its property so that he can use it to exercise his religion.3
violate their religious beliefs. Instead, any coercion works in the opposite direction: people are demanding that the courts make the government enable or subsidize their religious beliefs by uniquely providing them with government property.
While an able lawyer can certainly characterize this third type of claim as a “burden,” it has been well understood since before Smith that the
The reason the Indian tribes lacked a Free Exercise Clause claim in Lyng was because, despite the “devastating” incidental effect that the government‘s management of its own land would have on their religious exercise, id. at 451, the tribes would not “be coerced by the Government‘s action into violating their religious beliefs; nor would [the] governmental action penalize religious activity by denying [them] . . . benefits,” id. at 449. As Lyng made clear, the “Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government‘s internal” affairs, particularly the government‘s management of its own property. Id. at 448 (emphasis added) (quoting Bowen v. Roy, 476 U.S. 693, 699-700 (1986)).
Nothing since Lyng has cast into question the straightforward understanding that the
C. RFRA
Echoing decades of Free Exercise precedent, RFRA prohibits the government from burdening a person‘s religious exercise.
In pre-RFRA First Amendment caselaw, it was well understood that the government burdens religious exercise when it acts in a coercive manner, and that the government‘s decisions about how it uses its own property are not coercive unless they discriminate (as in Sherbert). During and immediately after RFRA‘s enactment, everyone understood that RFRA carried forward this ordinary understanding of what it means to burden religious exercise. Post-RFRA caselaw only further confirmed that RFRA adopted the ordinary meaning of how the government may impose a burden—and specifically, as relevant to this case, that the government‘s use of its own property burdens religious exercise only when it is allocated in a discriminatory manner. Here, there is no claim that the government has used its resources in a discriminatory manner, and the government therefore has not burdened the Apaches’ religious exercise within the meaning of RFRA.
i. The ordinary understanding of RFRA does not support the claim that the government burdens religious exercise by using its own resources in a nondiscriminatory manner.
If RFRA‘s plain text doesn‘t make it obvious enough that RFRA did not depart from the ordinary meaning of “burden” under the
When Congress enacted RFRA, it was well understood that a burden is imposed by the government‘s use of its own resources only when the use of such resources
because citizens simply “may not demand that the Government join in their chosen religious practices” by providing the resources for such practices. Id. (quoting Lyng, 485 U.S. at 448). Everyone understood that, under RFRA, the government retains its right to use its resources according to its own preferences.8 It does not have the
ii. Cases interpreting RLUIPA are not inconsistent with this well-established understanding of RFRA.
Understandably seeking to distance themselves from the settled understanding that the government does not burden religious exercise through the mere use of its resources in a nondiscriminatory manner, Apache Stronghold and the dissent focus heavily on caselaw interpreting a different statute,
I agree with the dissent that the substantiality of a burden can be measured the same way under both RLUIPA and RFRA. But whether a burden is cognizable in the first instance has always been a context-dependent inquiry. And what constitutes a cognizable burden in the prison context—surely the most comprehensively coercive setting in America today—obviously may be very different from what constitutes a “burden” under RFRA. That is why, for example, a Jewish prisoner has a right under RLUIPA to require the government to provide him with kosher meals, whereas a Jewish man outside of prison has no right to insist that the government deliver him free kosher food.9
As a result, in the vast majority of RLUIPA cases there is no need to explicitly analyze whether the government‘s action burdens religious exercise—it‘s a given. The only question is substantiality. And that may also be true for some RFRA cases. But it is not true for all of them, and certainly not this one. This case presents the opposite situation encountered in most RLUIPA cases. The substantiality of the effect on the Apaches’ religious exercise is obvious; it is the legal cognizability of any burden that is at issue. Thus, the dissent‘s extensive reliance on inapt RLUIPA cases analyzing the substantiality of an undisputed burden is badly misplaced.
Ultimately, the dissent cannot rely on
RFRA .
This case is not meaningfully different from Lyng or Navajo Nation. In all three cases, the government wanted to do something with its own land. In all three cases, what the government planned to do would substantially affect how the tribes wanted to use the government’s land for their own religious exercise. In Lyng and Navajo Nation, courts rejected the First Amendment and
II.
Reconceiving the government’s nondiscriminatory use of its own property as a cognizable burden under
Eventually, lines limiting the court-enforced distribution of the government’s largesse would need to be drawn. And because, as explained above, the dissent’s novel approach has no basis in the text or original understanding of
A. The dissent would establish a discriminatory preference in favor or older religions and against newer ones.
Not far into the dissent, the reader encounters the first such distinction: religious practices with a lengthy historical pedigree apparently deserve more protection than newly established ones. Parroting Apache Stronghold’s repeated emphasis that the Apaches have worshipped at Oak Flat “since time immemorial,” the dissent heavily implies the Apaches should be treated preferentially because their religious exercise is a long-established practice.11
The trouble with emphasizing the lengthy history of the Apaches’ religious practice at Oak Flat is that it is entirely irrelevant to our analysis under
Of course, the suggestion that long-established religious practices should receive favorable treatment under
RFRA also discriminates by providing more protection against burdens accompanied by significant physical or environmental impacts.
Both the dissent and Apache Stronghold also take care to emphasize the extent of the physical destruction associated with the transfer of Oak Flat. The import of such argument is clear: as with age, the dissent and the Apaches would also establish a discriminatory preference in favor of protecting burdens on religious exercise with a significant physical or environmental component when compared to burdens associated with less physical manifestations. But doing so would be double error, both because such a rule wrongly implies that a practitioner’s religious harm under
Ultimately, this distinction too is contrary to both the text of
i. Attempting to distinguish Lyng and Navajo Nation by focusing on the extent of the physical impact reads a discriminatory preference for land-based religious practices into RFRA .
The biggest hurdle faced by the dissent and the Apaches is that this case is strikingly similar to both the Supreme Court’s decision in Lyng and our court’s en banc decision in Navajo Nation. To get around these cases, which doom its claims, Apache Stronghold attempts to distinguish them by emphasizing the physical differences between the government’s actions in those cases and this one. Navajo Nation and Lyng are different, they contend, because “neither … involved physical destruction of a sacred site.” The dissent employs similar logic, distinguishing Lyng on the basis that the transfer will result in the “utter destruction” of Oak Flat, which “will prevent the Western Apaches from visiting Oak Flat for eternity.” Not only does this argument fail to provide a suitable basis to distinguish Lyng and Navajo Nation, but it also introduces another arbitrary and discriminatory limitation on the scope of
In Navajo Nation, the government allowed a mountain sacred to multiple Indian tribes to be showered daily with 1.5 million gallons of poopy water that, according to those tribes, would desecrate the mountain, render it impure, and destroy their ability to perform certain religious ceremonies. 535 F.3d at 1062–63; id. at 1081 (Fletcher, J., dissenting). So both Navajo Nation and this case present precisely the same impact on religious exercise from government land-use decisions: elimination of the ability to perform religious ceremonies. The dissent here, however, distinguishes Navajo Nation by asserting that “nothing ‘with religious significance … would be physically affected‘” by the government’s decision to spray recycled wastewater containing human waste onto a sacred mountain (emphasis added). But that downplays the spiritual significance of the government’s action in Navajo Nation and ignores the court’s later reasoning in the same opinion that “[e]ven were we to assume … that the government action in this case w[ould] ‘virtually destroy the … Indians’ ability to practice their religion,‘” the result would not have changed. Navajo Nation, 535 F.3d at 1072 (quoting Lyng, 485 U.S. at 451).
The dissent similarly distinguishes and downplays the government’s land-use decisions in Lyng—notwithstanding their “severe” and “devastating effects on traditional
There is little doubt that the government’s decision to transfer Oak Flat will have consequences for the physical environment in and around that area, but as much as some may wish otherwise, this is not an environmental case. This is a case about religious injury, and the measure of that injury is the harm to religious exercise. That harm is precisely the same here as it was in Lyng and Navajo Nation: the complete inability of Native Americans to conduct certain religious ceremonies because of government decisions about how it uses government land.
The desire to distinguish Lyng and Navajo Nation by emphasizing the physical impact of the challenged government decision is certainly understandable from an environmentalist’s perspective, but doing so would result in an unfortunate perversion of
ii. A rule that distinguishes religious harms by their physical measurability finds no support in either the text of RFRA or the body of caselaw supporting it.
The physical impact of the government’s actions has no basis in the text of
In Lyng, the government sought to build a road that would result in the physical destruction of wilderness conditions necessary for the plaintiffs’ religious exercise, including “privacy, silence, and an undisturbed natural setting.” 485 U.S. at 442. The Court recognized that
iii. Analyzing burdens on religious exercise with reference to their associated physical impacts is inherently discriminatory.
Text and caselaw aside, it is also inequitable to let the physical consequences of a government action determine whether religious exercise has been burdened because religions differ in what might burden their exercise. Some religions place more emphasis on the material world, while others are more spiritually directed. Some center their devotion on historic rites held in set-apart, holy places, while others are not as ceremonially or geographically constrained. And of course, many faiths incorporate degrees of some or all of these defining characteristics into their religious practice. The dissent’s misguided emphasis on the environmental consequences of the government’s action preferences some of these religious aspects over others, and if it were afforded legal significance, it would ensure that
C. The dissent encourages discrimination by creating a baseless distinction between the government’s real property and its other property.
The dissent relatedly appears to infer that there’s something legally special about the religious use of government-owned real property that makes it materially distinguishable from other forms of government resources. But again, this distinction bears no connection to anything in
Grafting onto
The dissent tries to limit the discriminatory impact of the rule it offers by limiting it to circumstances where the government has unique control over access to religious resources. But that’s no limitation at all. The government has unique control over all its resources. Every dollar bill in circulation was at one point owned and “uniquely controlled” by the government—after all, the government alone prints legal tender. So if a religious observer sincerely believes he needs a government resource to exercise his religion, including cash, the dissent’s “unique control” principle offers no practical limitation on what resources the government may need to give the religious observer. Arbitrarily carving out government favors for a religion that requires specific real property would invite discrimination against religions with different property needs.14
RFRA .
Ultimately, none of the distinctions either explicitly or implicitly relied on by the dissent to rationalize its rewrite of
Under this “reconceptualized” and “alternative” theory of
i. Amici’s reparations theory of RFRA has no basis in RFRA .
For starters, the academic argument motivating the dissent’s approach has no basis in the text or original meaning of
To overcome
It’s an interesting academic theory, and not one entirely devoid of moral force. But as already noted, nothing shows that Congress was attempting to do anything reparations-related when it passed
ii. To avoid discrimination, a reparations theory of RFRA would entitle a wide variety of religions to government handouts.
But that isn’t the only problem with a reparations theory of
Baptists in colonial Virginia were horsewhipped and their ministers were imprisoned when the Church of England enjoyed a monopoly there.15 Catholics were deprived of their political and civil rights at various times in all thirteen colonies,16 antebellum mobs burned down their churches and occasionally massacred them,17 and efforts to ratify a constitutional
Regardless of the philosophical arguments for and against reparations,
MURGUIA, Chief Judge, dissenting, with whom GOULD, BERZON, and MENDOZA, Circuit Judges, join, and LEE, Circuit Judge, joins as to all but Part II.H:
We are asked to decide whether the utter destruction of Chí’chil Biłdagoteel, a site sacred to the Western Apaches since time immemorial, is a “substantial burden” on the Apaches’ sincere religious exercise under the Religious Freedom Restoration Act (“RFRA“),
Our decision in Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), wrongly defined “substantial burden” as a narrow term of art and foreclosed any relief. Although a majority of this en banc court rejects Navajo Nation’s reasoning, see Nelson Op. at 125; Collins Op. at 47 (no mention of Navajo Nation while recognizing that in certain instances “substantial burden” under
under Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). Relying on Lyng, Judge Collins’ majority opinion (“the majority“) holds that the destruction of a sacred site cannot be described as a substantial burden no matter how devastating the impact on religious exercise, erroneously concluding that preventing a religious practice is neither prohibitory nor coercive. In so doing, the majority misreads
I. Background
In a rider to a must-pass defense spending bill, Congress directed the Secretary of Agriculture to transfer 2,422 acres of federal land to Resolution Copper Mining, a foreign-owned limited liability company, to build an underground copper mine. The copper ore is located beneath Chi’chil Bildagoteel, also known as Oak Flat, a sacred place where Western Apache people have worshiped and conducted ceremonies since time immemorial.1 Once the land
The land transfer, however, is subject to
Because the land transfer will prevent Apache worshippers from engaging in sincere religious exercise at their sacred site, I would hold that Apache Stronghold is likely to succeed in establishing that the government has imposed a “substantial burden” on the Apaches’ religious exercise. Such a holding stems from the Supreme Court’s jurisprudence before and after the enactment of
A. Oak Flat and the Land Transfer
The Western Apache believe that their ancestral landscape is imbued with diyah, or spiritual power. This is especially true for Chi’chil Bildagoteel, which means “Emory Oak Extends on a Level” or “Flat with Acorn Trees” or more simply “Oak Flat,” a 6.7-square-mile sacred site located primarily in the Tonto National Forest. Oak Flat is situated between Ga’an Bikoh (Devil’s Canyon), a canyon east of Oak Flat, and Dibecho Nadil (Apache Leap), the edge of a plateau west of Oak Flat.
Oak Flat, Devil’s Canyon, and Apache Leap comprise a hallowed area where the Apaches believe that the Ga’an—the “guardians” and “messengers” between Usen, the Creator, and people in the physical world—dwell. Usen created the Ga’an as “the buffer between heaven and earth” and created specific “blessed places” for the Ga’an to reside. The Ga’an are “the very foundation of [Apache] religion,” and they protect and guide the Apache people. The Apaches describe the Ga’an as their “creators, [their] saints, [their] saviors, [and their] holy spirits.”
Through Usen and the Ga’an, the Apaches believe that everything has life, including air, water, plants, animals, and
The Ga’an come “to ceremonies to impart well-being to” the Apaches “to heal, and to help the people stay on the correct path.” Oak Flat thus serves as a sacred ceremonial ground, and these ceremonies cannot take place “anywhere else.” For instance, young Apache women have a coming-of-age ceremony, known as a “Sunrise Ceremony,” in which each young woman will “connect her soul and her spirit to the mountain, to Oak Flat.” Similarly, “young boys that are coming into manhood” have a sweat lodge ceremony at Oak Flat. There, the Apaches also conduct a Holy Grounds Ceremony, which is a “blessing and a healing ceremony . . . for people who are sick, have ailments[,] or seek guidance.” The Apaches gather “sacred medicine plants, animals, and minerals essential to [these] ceremonies” from Oak Flat, and they use “the sacred spring waters that flow[] from the earth with healing powers” that are not present elsewhere. “Because the land embodies the spirit of the Creator,” if the land is desecrated, then the “spirit is no longer there. And so without that spirit of Chi’chil Bildagoteel, [Oak Flat] is like a dead carcass.” Apache Stronghold v. United States, 519 F. Supp. 3d 591, 604 (D. Ariz. 2021).
The Apaches have held Oak Flat sacred since long before the United States government and its people ventured west of the Rio Grande. The Apaches, however, were dispossessed from their ancestral land during the nineteenth century, when miners and settlers moved west and clashed repeatedly with the local Apaches. To make peace, various Apache leaders signed the Treaty of Santa Fe in 1852, wherein the United States government promised the Apaches that it would “designate, settle, and adjust their territorial boundaries” and “pass and execute” laws “conducive to the prosperity and happiness of” their people. Despite the treaty, conflict continued as more settlers, miners, and United States soldiers entered the Apaches’ ancestral land, resulting in several massacres of the Apaches by soldiers and civilians. By the late 1870s, the United States government forcibly removed the Apaches from their ancestral homelands and onto reservations, so that today, the Apaches no longer live on lands encompassing their sacred places. Nonetheless, the Apaches “remain connected to their spirituality” and “the earth,” and they continue to come to Oak Flat to worship, conduct ceremonies, sing and pray, and gather sacred plants. Apache Stronghold, 519 F. Supp. 3d at 603–04.
In the twentieth century, the United States government took steps to protect Oak Flat from mining activity. In 1955, President Eisenhower reserved 760 acres of Oak Flat for “public purposes” to protect it from mineral exploration or other mining-related activities.
Under the Land Transfer Act, the Secretary of Agriculture must prepare an environmental impact statement (“EIS“) before the land transfer may take place. See id.
In January 2021, the Forest Service, a division of the Department of Agriculture, issued an EIS, which has since been withdrawn. In that EIS, the Forest Service concluded that the land transfer would remove Oak Flat from the Forest Service’s jurisdiction, making the Forest Service unable to “regulate” the mining activity under applicable environmental laws. The Forest Service found that the mine would be “one of the largest” and “deepest” “copper mines in the United States,” with an estimated 1,970 billion metric tons of copper situated 4,500 to 7,000 feet beneath Oak Flat. Resolution Copper will use an underground mining technique known as panel caving that carves a network of tunnels below the ore. As the ore is removed, the land above the ore “moves downward or ‘subsides.’” This “subsidence zone” or crater will reach between 800 and 1,115 feet deep and nearly two miles wide. The crater would start to appear within six years of active mining. The crater and related mining activity will have a lasting impact on the land of approximately eleven square miles. The Forest Service “assessed alternative mining techniques in an effort to prevent subsidence, but alternative methods were considered unreasonable.”
As a result of the crater, the Forest Service determined that “access to Oak Flat and the subsidence zone will be curtailed once it is no longer safe for visitors.” The Forest Service therefore concluded that the mine would cause “immediate, permanent, and large in scale” destruction of “archaeological sites, tribal sacred sites, cultural landscapes, and plant and mineral resources.”4 Oak Flat would “be permanently
In March 2021, the Department of Agriculture ordered the Forest Service to rescind the EIS. The Department explained that the government needed “additional time” to “fully understand concerns raised by Tribes and the public” and to “ensure the agency’s compliance with federal law.” While counsel for the government informed the en banc panel at oral argument in March 2023 that the environmental analysis would be completed and the EIS republished by the summer, the Forest Service has not yet issued a revised Final EIS.
B. Procedural History
Apache Stronghold filed this action several days before the government issued the now-withdrawn EIS.5 As relevant on appeal, Apache Stronghold alleges that the Land Transfer Act violates
The district court then held a hearing and took evidence before denying Apache Stronghold’s motion for a preliminary injunction. Id. at 611. The district court found that Apache Stronghold was unlikely
After the district court denied Apache Stronghold’s preliminary injunction motion, the Forest Service withdrew the Final EIS. The three-judge motions panel that considered Apache Stronghold’s motion for an injunction pending appeal therefore concluded that Apache Stronghold had failed to show that it needed immediate relief to “avoid irreparable harm,” because the Forest Service expected to take “months” to complete its revised environmental review and the land transfer would not occur until then. Apache Stronghold v. United States, No. 21-15295, 2021 U.S. App. LEXIS 6562, at *2 (9th Cir. March 5, 2021) (“Injunction Order“). Accordingly, the divided motions panel denied Apache Stronghold’s motion. Id. In dissent, Judge Bumatay stated that he would have granted the motion and held that the land transfer violated
On the merits, a divided three-judge panel affirmed the district court’s order. Apache Stronghold v. United States, 38 F.4th 742 (9th Cir. 2022). We granted rehearing en banc. Apache Stronghold v. United States, 56 F.4th 636 (9th Cir. 2022).6
II. Discussion
In Winter, 555 U.S. at 24, the Supreme Court emphasized that injunctive relief, whether temporary or permanent, is an “extraordinary remedy never awarded as of right.” A party seeking a preliminary injunction must show that: (1) it is “likely to succeed on the merits“; (2) it is “likely to suffer irreparable harm in the absence of preliminary relief“; (3) “the balance of equities tips in [its] favor“; and (4) “an injunction is in the public interest.” Id. at 20. “Where, as here, the government opposes a preliminary injunction, the third and fourth factors merge into one inquiry.” Porretti v. Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021).
The district court concluded that Apache Stronghold could not establish a likelihood of success on any of its three claims, so it denied the motion for a preliminary injunction. See Apache Stronghold, 519 F. Supp. 3d at 598–609. Because I conclude that Navajo Nation’s reasoning is incorrect and because I would hold that preventing a person from engaging in sincere religious exercise is a substantial burden under
A.
In
In response, in 1993, Congress enacted
Four years later, however, the Supreme Court struck down the portion of
B. Defining “Substantial Burden”
i. Plain Meaning
With that background in mind, I turn to Apache Stronghold’s claim that the government will violate
As to the Apaches’ religious exercise, the district court found, and the government does not dispute, that the Apaches have a sincere religious belief in worshipping and conducting ceremonies at Oak Flat. See Apache Stronghold, 519 F. Supp. 3d at 603; see also
To define “substantial burden,” I begin with
At the time of
ii. Navajo Nation’s Flawed Reasoning
Our decision in Navajo Nation, relied upon by the district court, rejected a plain meaning reading of “substantial burden.” There, Native American tribes and their members sought to enjoin the use of artificial snow, made from recycled wastewater, on a public mountain sacred to their religion. Navajo Nation, 535 F.3d at 1062–63. This court concluded that using artificial snow was not a substantial burden under
Under
RFRA , a “substantial burden” is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder). Any burden imposed on the exercise of religion short of that described by Sherbert and Yoder is not a “substantial burden” within the meaning ofRFRA , and does not require the application of the compelling interest test set forth in those two cases.
Id. at 1069–70. This is erroneous for six reasons.
First, Navajo Nation made too much of the fact that
In other words, when enacting
Second, neither Sherbert nor Yoder contains the term “substantial burden.” It would therefore be surprising for Congress to invoke an interpretation of a purported term of art by referencing two cases, neither of which uses the term. See Sherbert, 374 U.S. at 406 (“substantial infringement“); Yoder, 406 U.S. at 220 (“unduly burdens“). Navajo Nation’s argument that “substantial burden” is a term of art from the Supreme Court’s pre-
In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, for example, decided just months before Congress enacted
In looking to the term’s plain meaning, I do not ignore the significance of
Third, Navajo Nation (and the majority here) proceeds as if
455 (1993) (explaining that statutory construction “is a holistic endeavor,” so “in expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law” (quotation marks omitted) (cleaned up)). That Congress amended
Fourth, considering this amendment to
Fifth, and relatedly, as discussed in the next section, Navajo Nation‘s choice to confine “substantial burden” to a term of art cannot stand in the face of the Supreme Court‘s directive that
Finally, instead of just answering the question before it, Navajo Nation‘s decision to define substantial burden as a narrow term of art swept too broadly. Cf. City of Ontario v. Quon, 560 U.S. 746, 760 (2010) (“A broad holding . . . might have implications for future cases that cannot be predicted.“). This case asks whether the utter destruction of a sacred site is a substantial burden. That is a fundamentally different question than the one Navajo Nation considered, because there, plaintiffs still had “virtually unlimited access to the mountain” to “continue to pray, conduct their religious ceremonies, and collect plants for religious use.” Navajo Nation, 535 F.3d at 1063 (emphasis added); see id. (noting that nothing “with religious significance, or religious ceremonies . . . would be physically affected“). Because the Navajo Nation majority went to great lengths to emphasize that “no places of worship [were] made inaccessible,” id., Navajo Nation should not have adopted a rule that extends to cases where places of worship will be obliterated. And by adopting such a broad holding, it erred.
Accordingly, I would revise Navajo Nation‘s definition of “substantial burden” to the extent that it defined that phrase as a term of art limited to the kinds of burdens at issue in Sherbert and Yoder. Rather, as discussed infra § II(D), the kinds of burdens challenged in Sherbert and Yoder are examples sufficiently demonstrating a substantial burden, not those necessary to do so.8
C. RFRA and RLUIPA Are Interpreted Uniformly
That “substantial burden” has the same meaning under both
Second, the Supreme Court has cross-referenced the two statutes for support. See, e.g., Holt, 574 U.S. at 356-57 (a
Third, at least seven other circuits agree with my conclusion that the two statutes’ “substantial burden” standards are one and the same. See, e.g., Mack v. Warden Loretto FCI, 839 F.3d 286, 304 n.103 (3d Cir. 2016) (“[T]he two statutes are analogous for purposes of the substantial burden test.“); Madison v. Riter, 355 F.3d 310, 315 (4th Cir. 2003) (
The great weight of authority thus buttresses my conclusion that
I next consider which government actions amount to a substantial burden on religious exercise. Keeping in mind that
i. Pre-Smith Free Exercise Jurisprudence
I begin with Sherbert and Yoder, the two pre-Smith cases that
In Yoder, a state prosecuted members of the Amish faith for violating a state law that required children to attend school until the age of sixteen. 406 U.S. at 207-08. The defendants sincerely believed that their children‘s attendance in high school was “contrary to the Amish religion and way of life.” Id. at 209. The Supreme Court reversed the convictions, holding that the application of the compulsory school-attendance law to the defendants “unduly burden[ed]” their exercise of religion in violation of the Free Exercise Clause. Id. at 207, 220. According to the Court, the state law “affirmatively compel[led the defendants], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218. As to the state‘s interest underlying its truancy law, the Court explained that a general interest in compulsory education was insufficiently compelling. Id. at 221.
But pre-RFRA precedents did not limit the kinds of burdens protected under the Free Exercise Clause to the types of burdens challenged in Sherbert (the choice between sincere religious exercise and receiving government benefits) and in Yoder (the threat of civil or criminal sanctions). Beyond these two cases, the Supreme Court‘s pre-Smith jurisprudence recognizes at least one other category of government
And in O‘Lone v. Estate of Shabazz, prison officials “prevented Muslims . . . from attending Jumu‘ah,” an Islamic congregational service held on Friday afternoons. 482 U.S. 342, 347 (1987). The plaintiffs sued, “alleging that the prison policies unconstitutionally denied them their Free Exercise rights under the First Amendment.” Id. The Supreme Court recognized that preventing Muslims from engaging in religious exercise gave rise to a cognizable Free Exercise Clause claim. But, at the time, before
In dissent, Justice Brennan agreed that preventing an adherent from engaging in religious practices was sufficient to demonstrate a Free Exercise claim, but disagreed with the majority‘s reasonableness standard:
The prison in this case has completely prevented respondent inmates from attending the central religious service of their Muslim faith. I would therefore hold prison officials to the standard articulated in Abdul Wali, [which requires the government to demonstrate a compelling interest] and would find their proffered justifications wanting.
The State has neither demonstrated that the restriction is necessary to further an important objective nor proved that less extreme measures may not serve its purpose.
Id. at 359 (Brennan, J., dissenting).
The same is true in other cases. See, e.g., McElyea v. Babbitt, 833 F.2d 196, 197-99 (9th Cir. 1987) (citing O‘Lone and recognizing a Free Exercise Clause claim where a prison had no weekly Jewish services and the plaintiff alleged that prison officials “prevented him from practicing his religion“); Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (assuming that denial of access to a sweat lodge was a viable Free Exercise Clause claim, but upholding the prison policy under the O‘Lone, pre-RFRA, reasonableness test); cf. Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (holding, in a Free Exercise Clause case decided post-City of Boerne and pre-
ii. This Circuit‘s Precedents Recognize Preventing Religious Exercise Is a Substantial Burden
Given this legal backdrop, it is unsurprising that in our first
the religious adherent has the obligation to prove that a governmental action burdens the adherent‘s practice of his or her religion by preventing him or her from engaging in conduct or having a religious experience . . . . This interference must be more than an inconvenience.
46 F.3d 948, 949 (9th Cir. 1995) (per curiam) (cleaned up) (quoting Graham, 822 F.2d at 850-51).11
The majority makes no effort to explain why we should not adhere to Bryant‘s formulation of substantial burden. Nor does it distinguish our subsequent pre-Navajo Nation
Similarly, before and since Navajo Nation, we have routinely recognized that preventing religious exercise qualifies as a substantial burden under
And in a recent
E. The Land Transfer Act Substantially Burdens the Exercise of Religion
The foregoing firmly establishes that where the government prevents a person from engaging in religious exercise, the government has substantially burdened the exercise of religion. The plain meaning of
I now turn to whether Apache Stronghold is likely to succeed in showing that the transfer and eventual destruction of Oak Flat constitutes a substantial burden on the Western Apaches’ religious exercise. The district court heard extensive testimony about the impact of the land transfer and mine. The district court found:
Because the land embodies the spirit of the Creator, “without any of that, specifically those plants, because they have that same spirit, that same spirit at Oak Flat, that spirit is no longer there. And so without that spirit of Chi‘chil Bildagoteel, it is like a dead carcass.” If the mining activity continues,
Naelyn Pike testified, “then we are dead inside. We can‘t call ourselves Apaches.” Quite literally, in the eyes of many Western Apache people, Resolution Copper‘s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood. . . . [T]he land in this case will be all but destroyed to install a large underground mine, and Oak Flat will no longer be accessible as a place of worship.
Apache Stronghold, 519 F. Supp. 3d at 604, 606 (citations omitted).
As discussed supra § I(A), the Forest Service, in its now withdrawn EIS, similarly documented the extensive, irreversible, and devastating impact of the mine‘s construction, and how the mining activity would prevent Apache worshipers from engaging in religious exercise at their religious sites. The crater will start to appear within six years of active mining, and the Forest Service concluded that the mining activity will cause “immediate” and “permanent” destruction of “archaeological sites, tribal sacred sites, cultural landscapes, and plant and mineral resources.” In addition, once the government publishes its Final EIS, regardless of its contents, “the Secretary shall convey” the land to Resolution Copper within sixty days.
In other words, the land transfer will result in a crater that will subsume Oak Flat. The impact of the mining activity on sacred sites will be immediate and irreversible. All that will be left is a massive hole and rubble, making the site unsuitable for religious exercise. Religious worship will be impossible, and the Apaches will be prevented from ever again worshipping at Oak Flat. As I have concluded, where the government prevents a religious adherent from engaging in religious exercise, the government has restricted the exercise of religion to a considerable amount. I would
F. Lyng Is Consistent with My Analysis
i. Lyng and Prohibitions on Free Exercise
The majority concludes that the destruction of a sacred site cannot be a substantial burden but cites no authority squarely supporting that proposition. Indeed, the majority fails to cite even one case foreclosing a
Rather than acknowledge this inconsistency, the majority relies entirely on a pre-RFRA Free Exercise Clause case: Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). But Lyng cannot bear the weight the majority places on it.
The Supreme Court in Lyng did not analyze whether there was a substantial burden under the Free Exercise Clause. The case is therefore not inconsistent with my
In its retelling of Lyng, the majority omits crucial facts. The Lyng plaintiffs challenged the federal government‘s proposal to permit timber harvesting and build a road through part of a national forest that “ha[d] traditionally been used for religious purposes by members of three American Indian tribes.” 485 U.S. at 441-42. The proposed road “avoided archeological sites and was removed as far as possible from the sites used by [tribes] for specific spiritual activities.” Id. at 443. Unlike here—a fact that the majority entirely disregards—“[n]o sites where specific rituals t[ook] place were to be disturbed.” Id. at 454. The Lyng plaintiffs continued to have full access to their sacred sites to engage in religious exercise, and there were “one-half mile protective zones around all the religious sites,” insulating them from any logging activity. See id. at 441-43. However, because the road and logging activity would generally disturb the “privacy,” “silence,” “spiritual development,” and the subjective enjoyment of those sacred sites,
Assuming that the noise and general disturbance from logging would “have severe adverse effects” on the individuals’ subjective religious experience, the Supreme Court held that the government‘s actions did not trigger the compelling interest test under the Free Exercise Clause. Id. at 447, 450-51. Relying on Bowen v. Roy, 476 U.S. 693 (1986), the Court concluded that the Lyng plaintiffs’ subjective spiritual harm from the loss of silence and privacy was “incidental” to the government‘s “internal” affairs. Lyng, 485 U.S. at 448, 451. In Roy, the Supreme Court had rejected a religious objection to the use of Social Security numbers as a numerical identifier that, according to the plaintiffs’ religious beliefs, would “‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.” 476 U.S. at 696. The Roy Court held that the “Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. at 699.
Applying Roy, the Lyng Court explained that the plaintiffs’ allegations of spiritual harm “cannot meaningfully be distinguished from the use of a Social Security number in Roy“:
Similarly, in this case, it is said that disruption of the natural environment caused by the . . . road will diminish the sacredness of the area in question and create distractions that will interfere with “training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power.”
485 U.S. at 448-49 (quoting the record). The Court construed the harm in both cases as “subjective” and so refused to decide whether the spiritual harm in Roy was “significantly greater” than the Lyng plaintiffs’ harm. Id. at 449.14
Lyng emphasized that the “crucial word in the constitutional text [of the Free Exercise Clause] is ‘prohibit‘: ‘For the Free Exercise Clause is written in terms of
The majority argues that, as in Lyng, the land transfer here is not “a situation in which the Government ha[s] ‘discriminate[d]’ against the plaintiffs, as might be the case if Congress had passed ‘a law prohibiting the Indian [plaintiffs] from visiting the [sacred] area.‘” Collins Op. at 27 (quoting Lyng, 485 U.S. at 453). The majority is mistaken on two fronts. First, the Land Transfer Act is exactly that kind of “prohibitory” law. It is undisputed and indisputable that once implemented, the Act will prevent the Western Apaches from visiting Oak Flat for eternity. The majority concedes this point, but then goes on to argue that where government action only “frustrates or inhibits” religious exercise, the government does not violate
But Apache Stronghold does not argue that the destruction of Oak Flat merely “frustrates” their ability to worship there; they argue—and the district court found—that worship there will be “impossible,” and their spiritual practice will be eviscerated. See Apache Stronghold, 519 F. Supp. 3d at 604 (“Quite literally, in the eyes of many Western Apache people, Resolution Copper’s planned mining activity on the land will close off a portal to the Creator forever and will completely devastate the Western Apaches’ spiritual lifeblood.“); id. at 606 (“[T]he land in this case will be all but destroyed to install a large underground mine, and Oak Flat will no longer be accessible as a place of worship.“). So, contrary to the majority, this case does not ask us to determine at what point “frustrating” religious exercise qualifies as a substantial burden;15 instead, we are confronted only with the utter erasure of a religious practice. In other words, the burden here is categorical and thus undisputedly “synonymous with ‘prohibit.’” Collins Op. at 29.
Second, that the Land Transfer Act does not specially “discriminate” against the Western Apaches by name—i.e., that the Act is neutral and generally applicable to all who would visit Oak Flat—is irrelevant because, when enacting RFRA, Congress eliminated Smith’s neutrality test. See
The majority argues that such a reading of RFRA is too “broad.” But a clear-cut conclusion that making religious exercise impossible is a “substantial burden” can hardly be called broad, especially when it adheres closely to both RFRA’s text and the Supreme Court’s precedent. The majority also contends that claims like Apache Stronghold’s would subject the government to “religious servitude.” Yet the majority proceeds as if, once a religious adherent has satisfied the substantial burden test, the outcome is a foregone conclusion. However, Congress explicitly identified the compelling interest test as “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”
At this stage, Apache Stronghold has only proven that there is a substantial burden. On remand, the government could demonstrate that transferring Oak Flat is justified by a compelling interest pursued through the least restrictive means.16 See Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981) (“The mere fact that the petitioner’s religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.“); see also Gonzales, 546 U.S. at 430, 436 (rejecting the government’s “slippery slope” argument under RFRA, and noting that Sherbert did so under the Free Exercise Clause); cf. Cutter, 544 U.S. at 722 (stating that the Supreme Court had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way“). So although Lyng did not specifically address government action that prevented religious exercise, contrary to the majority’s assertions, Lyng’s discussion of “discrimination” by “prohibiting” access to a sacred site confirms that the Land Transfer Act creates a substantial burden.
ii. Lyng’s Post-RFRA Limits
Moreover, to the degree Lyng’s Free Exercise ruling is in any tension with my understanding of RFRA, those aspects of Lyng were not carried forward into RFRA. Smith makes that much evident, as
Smith held that Lyng “declined to apply Sherbert analysis to the Government’s logging and road construction activities on lands used for religious purposes by several Native American Tribes, even though it was undisputed that the activities ‘could have devastating effects on traditional Indian religious practices.’” Smith, 494 U.S. at 883 (quoting Lyng, 485 U.S. at 451). Per Smith, Lyng stood for the proposition that the compelling interest test is “inapplicable” to “across-the-board” neutral laws. Smith, 494 U.S. at 884–85. In declining to apply the compelling interest test, Smith relied on Lyng for the point that “[t]he government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” Smith, 494 U.S. at 885 (quoting Lyng, 485 U.S. at 451). Smith then concluded that “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Id. at 886 n.3.
In so holding, Smith emphatically rejected Justice O’Connor’s concurrence suggesting that Lyng created an exception for Free Exercise challenges to the government’s conduct of its internal affairs. 494 U.S. at 885 n.2.17
The Smith majority first acknowledged that “Justice O’Connor seeks to distinguish Lyng and Roy on the ground that those cases involved the government’s conduct of ‘its own internal affairs.’” Id. (citations omitted). Smith then considered Justice O’Connor’s position that challenges to the government’s conduct of its internal affairs are “different because, as Justice Douglas said in Sherbert, ‘the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’” Id. (internal quotation marks and citation omitted). “But,” said the Smith majority in refuting the internal affairs proposition, “that quote obviously envisioned that what ‘the government cannot do to the individual’ includes not just the prohibition of an individual’s freedom of action through criminal laws but also the running of its programs . . . in such fashion as to harm the individual’s religious interests.” Id. “Moreover,” Smith continued, “it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands, Lyng, supra.” Id. (emphasis added).18
Smith treated Lyng as reflecting not any special exception for challenges to the government’s internal affairs, but as concerning the type of neutral and generally applicable laws not subject to the compelling interest test under Smith. Id. at 884–85 (citing Lyng, 485 U.S. at 451). Smith’s understanding of Lyng remains controlling. See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1878 (2021) (”Smith . . .
Accordingly, Lyng was not about measuring the extent of burdens sufficient to trigger the compelling interest test. Nor was Lyng, as the majority and concurring opinions posit, a case concerning the borders of the Free Exercise Clause or a special carve-out category of government actions that were not covered by Smith. Instead, Lyng reflected the principle, further developed in Smith and rejected in RFRA, that the compelling interest test was categorically inapplicable to neutral and generally applicable laws. See Smith, 494 U.S. at 884–85; Fulton, 141 S. Ct. at 1878.
Smith’s controlling interpretation of Lyng thus makes clear that (1) Lyng turned on the categorical inapplicability of the compelling interest test to the Free Exercise challenge in that case; and (2) the reason the compelling interest test was inapplicable in Lyng was that “the test [is] inapplicable to such challenges” to generally applicable laws. Smith, 494 U.S. at 885. RFRA’s rejection of Smith’s rule—that the compelling interest test is inapplicable to neutral and generally applicable laws—means that Lyng likewise does not control in RFRA cases.
The majority’s flawed response to this point is that Lyng did not involve a neutral or generally applicable law. Collins Op. at 31–32. But that proposition is wrong. Indeed, elsewhere in its opinion, the majority asserts, accurately, that Lyng did not involve “a situation in which the Government had ‘discriminate[d]’ against the plaintiffs, as might be the case if Congress had passed ‘a law prohibiting the Indian [plaintiffs] from visiting the [sacred] area.’” Collins Op. at 27 (quoting Lyng, 485 U.S. at 453). A law that “does not ‘discriminate’ against religious adherents,” like the policy in Lyng, is a neutral one for purposes of Free Exercise doctrine. See Church of the Lukumi Babalu Aye, 508 U.S. at 533 (explaining that a “law is not neutral” if “the object of a law is to infringe upon or restrict practices because of their religious motivation” (citing Smith, 494 U.S. at 878–89)). The plan to build the road at issue in Lyng was indisputably neutral in this sense, as it would affect equally all who preferred leaving the wilderness untouched—environmentalists, for example, or ranchers.
Nor is the majority correct that the policy challenged in Lyng was not generally applicable. In Lyng, the Forest Service proposed building a road connecting two towns and permitting timber harvesting in the same area; the road would be open to all, and there was no suggestion that the purpose of the Forest Service’s plan was to discriminate against Native American tribes. Indeed, the Forest Service took steps to mitigate the impact on tribes by “select[ing] a route that avoided archeological sites and was removed as far as possible from the sites used by [tribes] for specific spiritual activities.” Lyng, 485 U.S. at 443. While the litigation in Lyng was pending in the court of appeals, Congress enacted the California Wilderness Act, which designated portions of the forest as a protected wilderness area but excluded the proposed route. Id. at 444. While the choice of the route in the Act was made with knowledge of the tribes’ religious interest in it, there was no indication that it was made because of, rather than in disregard of, that interest, and the impact of the choice remained generally applicable and neutral.19
iii. Terry Williams Is Inapplicable Here
There is another, related problem with the majority’s treatment of Lyng. Relying on Williams v. Taylor, 529 U.S. 362, 411 (2000) (”Terry Williams“), the majority erroneously proceeds as if Congress must be understood to have adopted the term “substantial burden” as interpreted in Justice O’Connor’s concurrence in Smith, and so excepted cases similar to Lyng from that concept.
Terry Williams explained that “Congress need not mention a prior decision of this Court by name in a statute’s text in order to adopt either a rule or a meaning given a certain term in that decision.” 529 U.S. at 411. Where “[t]he separate opinions” in a prior Supreme Court case “concerned the very issue addressed” in a subsequently enacted statute, the prior case can “confirm what [the statutory] language already makes clear.” Id. at 411–12. But the majority opinion’s premises for applying Terry Williams here are flawed.
First, the majority here is wrong that Smith “concerned the very issue” of what constitutes a cognizable substantial burden. The majority opinion asserts that “in superseding Smith, RFRA uses the phrase ‘substantially burden,’
But as Judge Nelson’s concurring opinion appears to acknowledge, neither Lyng nor the Smith majority interpreted the term “substantial burden.” Nelson Op. at 135. Lyng simply refused to apply the compelling interest test. See 485 U.S. at 450–51 (explaining that Sherbert and Yoder “cannot imply that incidental effects of government programs,” without outright prohibition, coercion, or penalty, “require government to bring forward a compelling justification“); see also Smith, 494 U.S. at 883. Thus, Judge Nelson writes that Lyng is not
part of any “old soil” that was used to define “substantial burden,” Bea Dissent at 75.
Indeed, Lyng does not even use “substantial burden” or any analogous framing of the phrase. Lyng therefore cannot be read as establishing a
precise definition of “substantial burden” “carried over into the soil” of RFRA.
Nelson Op. at 136 (citation omitted).
Likewise, Smith was about categorically excepting neutral and generally applicable laws from the compelling interest test, rather than about defining the term “substantial burden.” See 494 U.S. at 884–85; see also supra § II(F)(ii) (discussing Justice O’Connor’s Smith concurrence and explaining that the Smith majority did not apply the compelling interest test). Although Justice O’Connor’s concurring opinion took the position that the denial of unemployment benefits based on religious drug use constituted a substantial burden, she did not rely on Lyng in her discussion of that term. See Smith, 494 U.S. at 897–98 (O’Connor, J., concurring in the judgment). Moreover, the Smith majority never reached the question of what types of burdens would be required to satisfy the first step of the Sherbert test. Instead, it concluded that the test was entirely “inapplicable” in cases challenging neutral, generally applicable laws. See Smith, 494 U.S. at 884–85. So there was no “vigorous debate” in Smith on the meaning of the term substantial burden, contrary to the majority’s representation.
Furthermore, Terry Williams involved a situation in which Congress did “not mention a prior decision of this Court by name in a statute’s text.” 529 U.S. at 411. That is not the circumstance here. Instead, RFRA explicitly identified which portion of Smith Congress sought to address. Congress declared that “in Employment Division v. Smith, the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.”
The upshot is that RFRA’s text does not support the majority’s conclusion that Congress intended a special exception for certain types of government actions. Rather, RFRA is explicit that:
- Religious exercise includes the use of real property for the purpose of religious exercise.
42 U.S.C. § 2000bb-2(4) ;Id. § 2000cc-5(7)(B) . - Under RFRA, the “[g]overnment shall not substantially burden a person’s exercise of religion” except when the compelling interest test is satisfied.
Id. § 2000bb-1(a) , (b). No other exceptions are provided. - Government “includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity.”
Id. § 2000bb-2(1) . - RFRA “applies to all Federal law, and the implementation of that law, whether statutory or otherwise.”
Id. § 2000bb-3(a) (emphasis added) - “Nothing in” RFRA “shall be construed to authorize any government to burden any religious belief.”
Id. § 2000bb-3(c) . Here, Congress usedthe term “burden” rather than “substantial burden.” - “[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”
Id. § 2000bb(a)(5) .
Given these congressional directives, unlike in Terry Williams, this is not a case in which reference to Smith can “confirm what” RFRA’s statutory “language already makes clear.” Terry Williams, 529 U.S. at 411–12. Rather, for the reasons I have surveyed, what RFRA’s language makes clear is that there is a “substantial burden” when individuals are prevented from practicing their religion by governmental action; if Lyng indicates otherwise (which I do not believe), that implication of Lyng does not survive RFRA.
G. This En Banc Panel Fails to Clarify Our Law
“As an en banc court, we have a responsibility to bring clarity to our law.” Garfias-Rodriguez v. Holder, 702 F.3d 504, 532 (9th Cir. 2012) (en banc) (Kozinski, C.J., concurring in part). Notably, although the divided three-judge panel rejected Apache Stronghold’s RFRA claim largely under Navajo Nation, the majority makes no mention of that case. Instead, litigants are forced to piece together from a composite of opinions that a majority of judges on this en banc panel rejects Navajo Nation’s reasoning.
Furthermore, the majority opinion creates confusion as to how to define “substantial burden.” Although RFRA’s text simply provides that the federal government may not “substantially burden a person’s exercise of religion,”
And the majority provides no authority for this sort of distinction. Nor could it. If the meaning of “substantial burden” turned on the type of case, several Supreme Court Free Exercise Clause cases would have lacked any discussion of substantial burden or compelling interest. See, e.g., Hernandez, 490 U.S. at 684–85, 699 (discussing substantial burden and concluding the government had a compelling justification in a Free Exercise Clause challenge to the Internal Revenue Service’s refusal to recognize payments made by Scientologists to churches as tax-deductible charitable contributions).
The majority’s shapeshifting definition of substantial burden also finds no support in RFRA’s and RLUIPA’s text. RLUIPA’s land-use provision states that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person.”
Nor does the majority meaningfully distinguish the coercion inherent in land-use cases from the coercion here. For instance, the majority contends that in the land-use context, the Free Exercise Clause’s “prohibition” requirement is inherent. Collins Op. at 47. But if a city precludes the building of a church on a parcel zoned for single-family dwellings, the city is not conditioning a benefit on forgoing religious exercise nor is it penalizing religious exercise. So how is the city’s zoning law “inherently . . . coercive” in a way that the Land Transfer Act and the destruction of Oak Flat is not? The majority offers little guidance to litigants wondering what governmental actions are sufficiently “coercive” to allow for a substantial burden analysis.
Indeed, contrary to what the majority says, Apache Stronghold’s RFRA claim “inherently involve[s] coercive restrictions.” Collins Op. at 47. As Judge Berzon noted in her panel dissent, Native American sacred sites—like the contexts of land-use and confinement—are unique in that “the government controls access to religious locations and resources.” Apache Stronghold, 38 F.4th at 776 (Berzon, J., dissenting) (citing Stephanie Hall Barclay and Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1301 (2021)). In each of these contexts the government has control over religious sites and resources, and religious adherents must “practice their religion in contexts in which voluntary choice is not the baseline.” Id. As with the Western Apaches here, Native American religions are typically land-based, so many traditional Native American religious sites are located exclusively on federal land. Therefore, unlike most non-incarcerated Americans, Native Americans are “at the mercy of government permission to access sacred sites.” Id. (quoting Barclay & Steele, supra, at 1301); see also Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, Cato Sup. Ct. Rev. at 33, 58 (2020–21) (arguing that the government “took control over the tribes’ ability to practice their traditions fully—in somewhat the same way that prisons control [incarcerated persons’] ability to practice their faith“). The Land Transfer Act thus prevents the Apaches from practicing their religion at Oak Flat, substantially burdening their religious exercise, just as would an outright ban of religious worship, meetings, or diet in prison, or a zoning law precluding a religious group from building a mosque, church, or synagogue. In other words, the government’s control over access to Oak Flat is coercive, and few other religious adherents are situated similarly to the Apache such that they need the government’s permission to worship.
H. RFRA Applies to the Land Transfer Act
For the first time in its Brief in Opposition to Rehearing En Banc, the government urges this court to affirm on the alternative ground that, under the legislative anti-entrenchment principle, RFRA cannot apply to the Land Transfer Act. Because the government did not raise that argument before the district court, and did
RFRA applies to “all Federal” statutes enacted after RFRA’s adoption “unless such [later-enacted] law explicitly excludes such application by reference.”
The Supreme Court has held, however, that “RFRA operates as a kind of super statute” because it applies to all federal statutes and thus “displac[es] the normal operation of other federal laws.” Bostock, 140 S. Ct. at 1754. In two RFRA cases, the Supreme Court accordingly determined that RFRA was controlling even though it conflicted with later-enacted federal law. See Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2383 (2020) (applying RFRA to the Affordable Care Act (“ACA“), a later-enacted statute, because the “ACA does not explicitly exempt RFRA“); Hobby Lobby, 573 U.S. at 719 n.30 (rejecting an implied repeal argument for the same reason). And as the Seventh and Eleventh Circuits have recognized, RFRA is consistent with the anti-entrenchment principle because “the statute does not apply to a subsequently enacted law if it ‘explicitly excludes such application by reference to’” RFRA. Korte, 735 F.3d at 672–73 (cleaned up) (quoting
I note that RFRA’s express exemption provision is no different from the one contained in the Administrative Procedure Act (“APA“), which the Supreme Court considered in Marcello v. Bonds, 349 U.S. 302, 310 (1955). The question in Marcello was whether the Immigration and Nationality Act (“INA“) satisfied the APA’s requirement that any exemptions from its procedures
In other words, the Supreme Court held that the INA did not need to explicitly mention the APA or use a “magical password[]” to supersede the APA’s express repeal provision. Id. at 309–10. The INA’s express inclusion of a “notwithstanding” clause—i.e., “notwithstanding the provisions of any other law“—was sufficient. Id. Consistent with Marcello, we have recognized the inclusion of a “notwithstanding” clause as “a method—akin to an express reference to the superseded statute—by which Congress can demonstrate that it intended to partially repeal an [earlier] Act.” United States v. Novak, 476 F.3d 1041, 1052 (9th Cir. 2007) (en banc) (cleaned up).
In short, for a statute to exempt itself from RFRA, a simple majority of Congress need only exempt that later-enacted statute from RFRA under
Here, the Land Transfer Act cannot escape RFRA’s reach. It neither explicitly exempts itself from RFRA, nor does it contain a “notwithstanding any other law” provision of any kind. See
III. Conclusion
The majority tragically errs in rejecting Apache Stronghold’s RFRA claim solely under Lyng. Lyng does not answer the question here, where we are faced with government action that will result in a massive hole obliterating Oak Flat and categorically preventing the Western Apaches from ever again communing with Usen and the Ga’an, the very foundation of the Apache religion. The effect will be immediate and irreversible. Under RFRA, preventing religious adherents from engaging in sincere religious exercise undeniably constitutes a “substantial[] burden.”
I would therefore hold that, at this stage, Apache Stronghold has shown that it is likely to succeed on the merits of its RFRA claim, and I would remand for the district court to determine whether the Land Transfer Act is justified by a compelling interest pursued through the least restrictive means.
LEE, Circuit Judge, dissenting:
Chief Judge Murguia’s excellent dissent lays out why Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) (en banc), incorrectly defined “substantial burden” as a narrow term of art. Simply put, the complete obliteration of the land—which the Western Apache consider sacred and where they have worshipped and conducted ceremonies for at least a millennium—obviously imposes a substantial burden on the Apache’s religious exercise.
I join Chief Judge Murguia’s dissent except for Section II.H. I do not believe we should address the merits of the government’s last-minute argument that the Religious Freedom Restoration Act cannot apply to the Land Transfer Act. The government did not bother raising this difficult question before the district court or on appeal. Rather, the government advanced this argument for the first time in its brief opposing rehearing en banc, and now asks the en banc panel to rule in its favor on this newly developed argument. The government infrequently shows any grace when people miss deadlines or do not follow its rules. Cf. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021) (“If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.“). I would not show any leniency to the government and would consider this argument waived.
Notes
That surprises me. Since long before Smith was decided, it has been a bedrock principle of American religious liberty law that the government “cannot prefer one religion over another.” Larson v. Valente, 456 U.S. 228, 246 (1982) (quoting Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947)). With that time-honored principle in mind, I’m not sure what Judge Nelson is suggesting in his three hypotheticals. I would think it is beyond dispute that the government cannot discriminate by allowing a devout Muslim prisoner to grow a beard for religious reasons while disallowing the same or a similar religious exception for devout Jewish or Native American prisoners. See, e.g., Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Sprouse v. Ryan, 346 F. Supp. 3d 1347 (D. Ariz. 2017). Is Judge Nelson seriously contending we could require a religious zoning exemption for a Catholic cathedral to build a 100-foot steeple, yet deny a mosque across the street the same exemption to build a 100-foot minaret? And does anyone seriously believe that a school-choice program that gave voucher money to Catholic schools but not Lutheran schools would pass constitutional muster?
It has taken too long for the Supreme Court to recognize that discrimination against religion vis-à-vis supposedly “secular” counterparts is constitutionally problematic. See, e.g., Locke v. Davey, 540 U.S. 712 (2004). But there has always been widespread acceptance that discrimination between religions is repugnant to the Constitution.
In rejecting the plaintiffs’ challenge, the Supreme Court did not minimize the impact that the road building and logging activity would have on the plaintiffs’ “personal spiritual development.” Lyng, 485 U.S. at 451. The Court, however, did not wish to weigh the magnitude of the subjective spiritual harm. Id. at 449, 451. So it explained that the noise and invasion of privacy caused by roadbuilding and logging had only an “incidental” constitutional effect under the Free Exercise Clause because the government was not “outright prohibit[ing]” religious exercise, “indirect[ly] coerc[ing]” an individual to act contrary to their religious belief, or “penal[izing]” religious practice. Id. at 450-51 (citingAnd if the majority were correct that my reading of RFRA would subject the government to “religious servitude,” then we would necessarily have seen that concern play out in circuits that have long employed a broader reading of “substantial burden.” Neither the government nor the majority provide evidence that other circuits are inundated with such claims, and I have found no evidence hinting at that possibility. Cf. Yellowbear, 741 F.3d at 62 (Gorsuch, J.) (rejecting slippery slope argument). In addition, before Smith, the government was not yoked to religious deference—as the majority and the government fears it would be—even though the Supreme Court had read the Free Exercise Clause to cover claims about preventing religious exercise.