Free Exercise Clause – Turtle Talk

Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to

reconcile the statutory provisions of RFRA with the Supreme Court’s

ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,

RFRA was not intended to remedy the disparate treatment of sacred site claims

in free exercise doctrine and thus, it does not provide any more protection for

these claims than the Free Exercise Clause. Both of the Ninth Circuit’s

decisions, however, may ultimately lead to a more equitable framework for

analyzing free exercise challenges.

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.