Blog from the Capital

In the Coconino National Forest, in Northern Arizona, an attempt by a snow resort to expand its reach into the San Francisco Peaks collided with Navajo, Hopi and other tribes' religious beliefs surrounding the Peaks and the use of its water. The Snowball proposal would create additional snow using treated sewage, enlarging the resort and its ski season. Initially, an Arizona district court approved that plan and disagreed with the Native Americans' religious freedom argument. But yesterday, the 9th Circuit Court of Appeals overturned that decision, noting a few things in the opinion I found especially interesting: First, the changing landscape of religious liberty jurisprudence in recent years:

Congress expanded the statutory protection for religious exercise in 2000 by amending RFRA’s definition of “exercise of religion.” Under the amended definition — “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” — RFRA now protects a broader range of religious conduct than the Supreme Court’s interpretation of “exercise of religion” under the First Amendment.

And after a moving description of various tribes' religious uses of the Peaks, the Court invites a little common sense and a little empathy:

Even if there is a substantial threat that the Snowbowl will close entirely as a commercial ski area, we are not convinced that there is a compelling governmental interest in allowing the Snowbowl to make artificial snow from treated sewage effluent to avoid that result. We are struck by the obvious fact that the Peaks are located in a desert. It is (and always has been) predictable that some winters will be dry.
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The record in this case establishes the religious importance of the Peaks to the Appellant tribes who live around it. From time immemorial, they have relied on the Peaks, and the purity of the Peaks’ water, as an integral part of their religious beliefs. The Forest Service and the Snowbowl now propose to put treated sewage effluent on the Peaks. To get some sense of equivalence, it may be useful to imagine the effect on Christian beliefs and practices — and the imposition that Christians would experience — if the government were to require that baptisms be carried out with “reclaimed water.”

At How Appealing, Howard Bashman has links to media coverage of the case here.