The Volokh Conspiracy
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Justices Gorsuch and Thomas Dissent from Court's Declining to Hear Apache Religious Freedom Case
From today's dissent from denial of certiorari by Justice Gorsuch, joined by Justice Thomas, in Apache Stronghold v. U.S.:
For centuries, Western Apaches have worshipped at Chí'chil Biłdagoteel, or Oak Flat. They consider the site a sacred and "direct corridor to the Creator." It is a place where tribal members conduct "religious ceremonies that cannot take place elsewhere." Recognizing Oak Flat's significance, the government has long protected both the land and the Apaches' access to it.
No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground. To extract copper lying beneath the land, they plan to blast tunnels that will result in a crater perhaps 1,000 feet deep and nearly two miles wide. "It is undisputed" that the government's plan will permanently "destroy the Apaches' historical place of worship, preventing them from ever again engaging in religious exercise" at Oak Flat.
Seeking to halt the destruction of the Apaches' sacred site, Apache Stronghold, a nonprofit organization, sued under the Religious Freedom Restoration Act of 1993 (RFRA). That law prevents the federal government from "substantially burden[ing] a person's exercise of religion," unless that burden represents "the least restrictive means of furthering [a] compelling governmental interest." In a sharply divided en banc decision, the Ninth Circuit rejected Apache Stronghold's challenge. Though the government's plan will result in the destruction of an ancient sacred site, the Ninth Circuit reasoned, that plan does "not impose a substantial burden on religious exercise."
Apache Stronghold asks us to review the Ninth Circuit's extraordinary conclusion. But the Court today turns aside the group's request. Respectfully, that is a grave mistake. This case meets every one of the standards we usually apply when assessing petitions for certiorari: The decision below is highly doubtful as a matter of law, it takes a view of the law at odds with those expressed by other federal courts of appeals, and it is vitally important. Before allowing the government to destroy the Apaches' sacred site, this Court should at least have troubled itself to hear their case….
In cases like Sherbert v. Verner (1963), and Wisconsin v. Yoder (1972), the Ninth Circuit observed, this Court asked whether the government's challenged action imposed a substantial burden on religion, whether that burden served a compelling interest, and whether the government's chosen means were narrowly tailored. Later, the Ninth Circuit continued, this Court upended that approach in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), by holding that Sherbert and Yoder's test for Free Exercise claims does not apply to challenged governmental actions that are "'neutral'" toward and among religions and "generally applicable" to all persons. Later still, the Ninth Circuit noted, Congress expressed displeasure with Smith, adopted RFRA, and in doing so effectively guaranteed the Sherbert and Yoder test would be applied "in all cases where free exercise of religion is substantially burdened." …
{[But w]hile the phrase "substantial burden" generally reaches actions that "preven[t] access to religious exercise," the [Ninth Circuit en banc] majority said, that rule does not apply to actions involving "a disposition of government real property."} The court pointed to [a] pre-Smith [Free Exercise Clause] case, Lyng v. Northwest Indian Cemetery Protective Assn. (1988). That case involved a First Amendment challenge to a plan to construct a road on federal land near sacred tribal sites. On the Ninth Circuit's telling, Lyng set forth a special test for analyzing whether the government's "disposition" of its real property runs afoul of the Free Exercise Clause. That test, the Ninth Circuit said, permits the government to do as it pleases with its property as long as it has no "tendency to coerce individuals into acting contrary to their religious beliefs" and does not "discriminat[e]" against or among religious adherents. In the Ninth Circuit's view, what counts as a "substantial burden" under RFRA "must be construed in light of " this Court's pre-Smith First Amendment jurisprudence and thus must be understood to "subsum[e], rather than abrogat[e], the holding of Lyng." …
There are many reasons to think {the Ninth Circuit erred} …. Consider just a few of them.
First, the Ninth Circuit's interpretation of the phrase "substantial burden" is difficult to reconcile with the statutory text. As a matter of ordinary meaning, after all, an action that prevents a religious exercise does not just burden that exercise substantially, it burdens it completely. Even the Ninth Circuit seemed to recognize as much, acknowledging that, as a rule, the government imposes a substantial burden on religious exercises when it "prevent[s]" them entirely.
Exactly nothing in the phrase "substantial burden"—or anything else in RFRA's text—hints that a different and more demanding standard applies when (and only when) the "disposition" of the government's property is at issue. To the contrary, RFRA proceeds to define the "exercise of religion" to include "[t]he use … of real property for the purpose of religious exercise." The statute adds that its demands apply to "all" of "Federal law," without regard to subject matter. And the statute provides that "nothing" in its provisions "shall be construed to authorize any government to burden any religious belief." In each of these ways, RFRA's terms suggest that a law disposing of federal real property is to be treated like any other.
Second, while RFRA may have sought to restore some of this Court's pre-Smith First Amendment jurisprudence, we have never held that the statute should be construed to "subsum[e ]" that jurisprudence wholesale. Far from it. In Burwell v. Hobby Lobby Stores (2014), for example, the government argued that RFRA's use of the phrase "exercise of religion" should be understood to reach only those religious practices this Court had recognized to be protected by the First Amendment before Smith. But this Court emphatically rejected that notion, describing its implications as "absurd" and explaining that, "by enacting RFRA, Congress went far beyond what this Court ha[d] held [to be] constitutionally required" before Smith. Similarly, in Holt v. Hobbs (2015), a lower court invoked this Court's pre-Smith First Amendment decisions to hold that a prison regulation prohibiting inmates from growing beards did not "substantially burden" religious exercise under the Religious Land Use and Institutionalized Persons Act (RLUIPA), RFRA's "sister statute." But, again, this Court firmly rejected that course, holding that the lower court had "improperly imported a strand of reasoning" from First Amendment decisions into a distinct statutory setting that guarantees "greater protection."
Third, even taken on its own terms, it is hard to see how Lyng can be read as setting forth a special test for determining when a government's "disposition" of land represents a "substantial burden" on religion. Just search Lyng for the phrase "substantial burden." You will not find it. Nor did Lyng involve a challenge to a governmental plan that seeks to destroy a religious site, as the government's plan for Oak Flat would. Instead, that case concerned a plan to build a road near religious sites that promised to generate noise and considerable disruption, but that also promised to leave those sites standing. In rejecting a First Amendment challenge to the government's plan in Lyng, the Court took pains to stress that point, and the fact that the government's actions would not "prohibit" religious exercises.
To be sure, Lyng also stressed that the government's plan at issue there did not "discriminate" against or among religions. And later, in Smith, this Court read Lyng to support its view that the government does not violate the Free Exercise Clause when its actions are "neutral" toward and among religions and "generally applicable." But none of that has any bearing here. As we have seen, the fact that the government acts pursuant to a neutral and generally applicable law is not enough to satisfy RFRA. Even in those circumstances, the government may not impose a "substantial burden" on religious exercise unless it has a compelling reason to do so and employs the least restrictive means to further that interest.
Fourth, at bottom, it seems the Ninth Circuit was concerned that a ruling for Apache Stronghold would effectively afford tribal members a "'religious servitude'" on federal land at Oak Flat. And, the argument goes, those who adopted RFRA could not have intended to afford Tribes or others that kind of power over the disposition of federal property. But unexpressed legislative intentions are not the law. And even if we were to abandon the statutory text in favor of guesswork about unenacted congressional purposes, it is far from clear why we should make the guess the Ninth Circuit did.
The truth is, Congress has adopted all sorts of laws restricting the government's power to dispose of its real property. Take just one example, the Endangered Species Act. That law, this Court once held, required the government to halt "operation of a virtually completed federal dam" to protect the endangered "snail darter," a "previously unknown species of perch." The Court read the Act to require that result even though Congress had spent more than $100 million on the dam—nearly half a billion in today's dollars—and our holding effectively "'divest[ed] the Government of its right to use what is, after all, its land.'" If Congress went to such lengths to accommodate the snail darter, why should we suppose it offered less protection to people practicing an ancient faith? …
Not only does the Ninth Circuit's decision merit our review because it rests on questionable legal footing. Review is all the more warranted because that decision implicates both a vital question and a circuit split. [Details omitted. -EV] …
While this Court enjoys the power to choose which cases it will hear, its decision to shuffle this case off our docket without a full airing is a grievous mistake—one with consequences that threaten to reverberate for generations. Just imagine if the government sought to demolish a historic cathedral on so questionable a chain of legal reasoning. I have no doubt that we would find that case worth our time. Faced with the government's plan to destroy an ancient site of tribal worship, we owe the Apaches no less. They may live far from Washington, D. C., and their history and religious practices may be unfamiliar to many. But that should make no difference. "Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country's commitment to … religious freedom."
