“Religious freedom” is having a moment in federal courts. One of the big successful goals of the conservative legal movement was that religious freedom would be advanced in a way that it supposedly had not been before. However, while the courts have certainly presented Christian legal interests with significant wins over the last several years, now that the takeover of the federal judiciary by conservative movement judges has advanced, left-leaning fears of religious favoritism in the judiciary appear to have been validated. As the U.S. Court of Appeals for the 9thCircuit demonstrated in an opinion issued earlier this month in Apache Stronghold v. United States, for religious practitioners outside of the “Judeo-Christian” tradition, religious freedoms may actually be more restricted than they were under previous legal regimes.
Apache Stronghold, the nonprofit organization suing to stop a federal land sale in Arizona, argued that the sale and exploitation of sacred Apache land violates the First Amendment’s free exercise clause and the Religious Freedom Restoration Act. Designed to enhance protections on religious freedom and exercise, RFRA imposes a strict scrutiny standard of review on any federal law or other action that “substantially burdens” the exercise of religion, meaning that the government must show that its action supports a “compelling government interest” and that its action was the least restrictive means of supporting that interest.
AdvertisementSome Apache religious practices are tied to certain sacred sites within the original Apache territory, such as Oak Flat, a place that “embodies the spirit of the Creator.” In order to practice their spiritual traditions, Apaches must have access to such federally held lands, and those lands must remain in their current, natural state. According to Apache Stronghold, copper mining in Oak Flat will “close off a portal to the Creator forever.” However, according to the 9thCircuit, the sale of sacred Apache land to copper mining interests for private exploitation “does not impose a substantial burden on religious exercise.”
Advertisement Advertisement AdvertisementOn its face, this is an absurd argument that can only make sense if you do not take Apache Stronghold’s religious claims seriously. When a spiritual practice is tied to specific land, and that land is held by the federal government, it is reasonable to expect the government to protect it to ensure continued access to sacred places. What is even worse is that the conservative U.S. Supreme Court has used similar free exercise and RFRA arguments to insulate conservative Christians from simple exposure to or discomfort with modern principles of inclusion even while the courts continue to treat other religions like exceptions only entitled to minimal protections.
AdvertisementSince the installation of the current conservative supermajority on the U.S. Supreme Court, RFRA has been used several times to advance Christian, conservative interests. In Fulton v. City of Philadelphia, the Supreme Court held that Philadelphia’s nondiscrimination policies violated RFRA by precluding a Catholic adoption agency from contracting with the city because it refused to place children with LGBTQ+ families. The court also used the free exercise clause and RFRA to invalidate the mandate for employers to provide contraceptive coverage in Little Sisters of the Poor v. Pennsylvania. The 9thCircuit itself relied on the free exercise clause to overturn a public school’s decision not to recognize a Christian student group that required students to hold Christian beliefs to join in Fellowship of Christian Athletes v. San Jose Unified School District.
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However, at the same time that Christians have been racking up RFRA and free exercise wins in federal courts, adherents of other religions—and Indigenous religions in particular—have not been so fortunate. Apache Strongholdis merely the latest in a string of failures of the courts to prevent the desecration of Indigenous sacred sites and remains. In La Posta v. Donald Trump, the 9thCircuit allowed construction of Trump’s border wall to continue despite allegations of RFRA and other violations from the tribe because Indigenous remains were found on the construction site.* The 9thCircuit also held, in Navajo Nation v. U.S. Forest Service, that spraying recycled sewage over sacred Navajo sites did not constitute a substantial burden on their practice of religion involving the sites.
Advertisement AdvertisementThe discrepancy in treatment between Christian and Native traditions is particularly jarring because RFRA was passed in the first place in response to a Supreme Court case involving Indigenous religious rights. In Employment Division v. Smith, the Supreme Court upheld the firing of two Native American employees who had been denied unemployment benefits after using peyote, a sacrament in their religious ceremonies. This decision, which held that generally applicable laws could be applied to religious practices without violating the free exercise clause of the First Amendment, prompted widespread concern about the erosion of religious freedoms, especially for minority and marginalized communities. In response, Congress passed RFRA with bipartisan support. Despite its beginnings as a shield meant to recognize the challenges faced by Indigenous religious practices in courts, RFRA has done little to protect Indigenous rights and has instead become a sword for fundamentalist Christians to impose their views on the rest of society.
Advertisement Advertisement AdvertisementThe recent trajectory of religious freedom cases in federal courts underscores a troubling reality of disparate outcomes based on religious affiliations. While the conservative legal movement plays at bolstering religious freedom protections for all, recent rulings suggest a pronounced favoritism toward Christian interests. Apache Strongholdhas not necessarily been lost for the tribe, however. There is still the possibility of Supreme Court review, and if the court were to hold true to its professed belief in a renewed RFRA, it should take the Apache Stronghold’s claims seriously. Given the court’s recent history and the federal courts’ general disdain for Indigenous religious claims, it seems unlikely that even a violation of religious rights as egregious as the one in this case this will find any sympathy from these justices.
Correction, March 14, 2024: This post originally cited a separate case as being implicated by RFRA when it was not.
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