Archives For Religious Freedom Restoration Act

Looking closer at Kentucky’s New Religious Freedom Restoration Act

Heather Greene —  April 7, 2013 — 25 Comments

It is official. This July Kentucky’s brand new Religious Freedom Restoration Act (RFRA) will go into effect. The state’s legislature put its final stamp of approval on the bill when it overturned, by a wide margin, Governor Steve Beshear’s veto on March 26th.

Originally called House Bill 279 (HB279), Kentucky’s RFRA states:

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities. – Kentucky HB279 Draft as of 4-4-2013

At first glance this sounds great. The state of Kentucky cannot “burden” a person’s freedom to practice his or her religion or limit the right to act or to refuse to act due to “sincerely held religious beliefs.” Pagan children can miss school on Samhain. If one’s jury duty falls on Beltane, we can ask to be excused.

amish buggy

By Amy Sancetta, AP
Source: USA Today

Before everyone packs their bags and moves to Kentucky, let’s take a closer look. State Rep. Bob Damron, a conservative democrat from Nicholasville, sponsored HB279 after the Kentucky Supreme Court upheld a ruling concerning the Amish community. In 2008, nine Amish men were arrested after refusing to comply with a state law requiring reflective orange triangles on their buggies.

The local chapter of the ACLU defended these men stating that, “This case is about the right of Kentuckians to freely exercise their religious beliefs and by necessity the limits of government’s ability to impose a substantial burden on that right.”

However, when HB279 was brought before the legislature, the ACLU didn’t support it. On March 11, the organization stated, “though laudable in its purpose, the bill as currently drafted, would undermine existing civil rights protections in the Commonwealth.”

GovBeshear_5x7Governor Steve Beshear’s agreed. Upon vetoing the bill, he stated:

I appreciate the good intentions of House Bill 279… However, I have significant concerns that this bill will cause serious unintentional consequences that could threaten public safety, health care, and individuals’ civil rights… The bill will undoubtedly lead to costly litigation. 

HB279’s opponents fear that its language provides residents with the legal power to disregard state laws in the name of religion. Governor Beshears said, “Imprecise legal standards lead to unforeseen consequences.” He cites various areas where problems could arise including: civil rights, school curriculum standards, economic development efforts, public health initiatives and drug enforcement. For example, a science teacher might refuse to teach evolution or choose to teach creationism. Prayer could enter government meetings. The implications are endless.

Local Kentucky Priestess Nancie Clark of Spirit of the Earth Church said:

This law is deeply concerning to me on multiple levels and I am certain it is more than likely being pushed by those with their own religious agendas… I can foresee many fellow Kentuckian’s personal liberties being chipped away in subtle ways throughout pockets of this state. What saddens me is that many people here may not be aware of just how this law will affect them until of course something happens to them or someone they love.  

Oberon Osiris, co-Public Information Officer of Covenant of the Goddess’ Midwest Regional Local Council, echoed those sentiments adding “For Pagans and other minority religions, this law could create strained relationships and conflicts in the overall community.”

Priestess Nancie Clark

Priestess Nancie Clark

Specifically, opponents, like Priestess Clark, are concerned about the Fairness laws protecting gay, lesbian, bisexual and transgendered citizens. HB279 could render these city-based ordinances completely useless. Priestess Clarks adds, “What’s to stop a teacher or other mentor from preaching to a gay teen the error of their ways according to scripture? This law helps to legalize bullying.”

Despite all objections, the bill’s supporters including Family Foundation of Kentucky, the Catholic Conference of Kentucky, and the Kentucky Baptist Convention, maintain the bill’s only goal is to protect religious liberty. State Rep. Stan Lee, R-Lexington said:

It wasn’t so long ago we had prayer in the schools, but they made us take it out… There have been attempts to take God out of everything. They want to take God out of the pledge of allegiance, can you believe that? You don’t think your religious freedom is under attack? Then maybe you do believe in a boogeyman….

But are Rep. Lee and the other supporters really concerned with protecting religious liberty? Or is this just a back-door attempt to re-establish government-sanctioned religious practices?

Interestingly, Kentucky isn’t the only state with an RFRA. In fact, in 1993, the Federal Government enacted its own RFRA which was eventually struck down by the Supreme Court as being unconstitutional. Justice Stephens said:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

Since 1993, 16 states have some form of RFRA and the Federal government has a new more restrictive version. Professor Christopher Lund of Wayne State University studied these laws in great detail and found them to be ineffective and unnecessary. His reports show that only three of the states (Florida, Illinois and Texas) have significant instances of litigation related to their RFRAs.

So why be concerned? Kentucky’s bill is touted as much broader in scope using “imprecise” language. In addition, Kentucky is proving to be a very conservative environment. Outside of this initiative that passed by a landslide. The state’s Department of Homeland Security requires all of its training materials to include the statement: “the safety and security of the commonwealth cannot be achieved apart from reliance upon Almighty God.”

Kentucky State Seal

Kentucky State Seal

When it comes to RFRAs, there is always one  lingering question: Why bother? Isn’t religious freedom already guaranteed by both the Kentucky and U.S. Constitutions? As best expressed by Democratic state Rep. Darryl Owen, “This is a piece of legislation looking for a reason.”

As always, Lady Liberty League will be watching the situation closely. Selena Fox stated:

Religious Freedom is an important foundation for the United States. We need to be vigilant, guard it, preserve it, and uphold it. However, as part of this work, we also need to closely examine political crusades and legislation that are put forth in the name of “Religious Freedom.” Just because something is proclaimed to be about “Religious Freedom” does not make it so. It is an affront to Freedom to pass and implement laws, whatever they are called, that can permit religious dogma and opinion to override Liberty and Justice for All.

In less than 90 days, HB279 will become a law. Whether civil liberties will be trampled in the name of religious freedom has yet to be seen. All we can do is wait and see.

 

(Note: The 16 states with RFRAs include Connecticut, Florida, Illinois, Rhode Island, Alabama, Arizona, South Carolina, Texas, Idaho, New Mexico, Oklahoma, Pennsylvania, Michigan, Virginia, Utah and Tennessee.)

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Update: Will SCOTUS Save the Peaks?

Jason Pitzl-Waters —  June 9, 2009 — 10 Comments

The answer to will SCOTUS save the San Francisco Peaks (from having treated waste-water snow sprayed on what several Native American tribes consider holy ground) is apparently “no”.

“The U.S. Supreme Court today denied certiorari in Navajo Nation v. Forest Service, (Docket No. 08-846). (Order List.) The 9th Circuit in the case held in an 8-3 en banc decision, that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona’s Snowbowl ski resort, which operates on federal land.”

The Save the Peaks coalition have released a statement on the decision.

“The Supreme Court’s denial of certiorari in the Navajo Nation case is unfortunate to say the least.” Stated Jack Trope of the Association on American Indian Affairs who is working together with DNA Legal Services, representing the Hualapai Tribe, Navajo medicine practitioner Norris Nez and Hopi spiritual practitioner Bill Preston. “It means that the San Francisco Peaks, sacred to so many tribes, will continue to be at great risk from the development approved by the Forest Service that allows treated sewage water to be used for snowmaking. It also means that the Ninth Circuit’s narrow interpretation of the Religious Freedom Restoration Act (RFRA) – an interpretation which in practice will make that law virtually unavailable to protect sacred lands in the states covered by the Ninth Circuit – will stand.”

This is a big deal. It means that questions of how we approach issues of religious freedom and religious rights on land that is a traditional cultural property under U.S. law are dramatically altered (within 9th Circuit jurisdiction). Perhaps the Forest Service have been intentionally dragging their feet in getting the San Francisco Peaks on the National Register because they didn’t want tribal considerations interfering with their sweetheart deals involving the Snowbowl resort?

“The San Francisco Peaks are recognized as a Traditional Cultural Property, although the Forest Service began the designation process several years ago, it has not yet been finished. The Peaks have also been determined eligible for listing on the National Register of Historic Places, yet the FS has done nothing to finish the process.”

At this point, nothing short of direct intervention from the Obama administration can halt the planned development (which includes clear-cutting 74 acres of rare alpine ecosystem & creating a 14.8 mile long pipeline up the San Francisco Peaks to a 10 million gallon storage pond). In the meantime, there is a chance this issue could come to SCOTUS again, due to different Federal Circuit Courts having different interpretations on the limits of the the Religious Freedom Restoration Act.

“This is a setback, but it is not the end. The Obama Administration still has the authority to stop this development and develop policies to ensure that future decisions are more respectful of sacred sites.” stated Jack F. Trope, Executive Director, Association on American Indian Affairs. “Moreover, other circuits like the Tenth Circuit have interpreted RFRA more broadly and efforts to use that law to protect other sacred places will continue. Finally, the struggle over the San Francisco Peaks and the failure of RFRA to protect this sacred place ought to send the message to Congress that it is time for the lawmakers to approve legislation that would strengthen applicable law so that it will better protect Native American sacred places across the country.”

From a moral and religious standpoint, the question remains, how much responsibility does the Federal government have towards protecting and maintaining sacred lands they have seized from Native tribes? It is an issue we need to wrestle with, because if the government and courts rejects pantheist religious views as valid when considering development, we may lose the right to protect other places from desecration in the future. As for the San Francisco Peaks issue, don’t expect the tribes to go quietly now that judicial recourse has been denied them.

“Our way of life is in peril. We will continue to pray and struggle to safeguard mother earth for our cultural survival.”

I doubt this will be the last time I’ll have to report on this matter.

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Will SCOTUS Save the Peaks?

Jason Pitzl-Waters —  June 1, 2009 — 3 Comments

The Supreme Court is holding a private conference this Thursday to decide if they will review a recent decision in the ongoing legal battle between a coalition of 13 Native American Tribal Nations (and various environmental groups) and the National Forest Service (and a ski resort) over the use of treated (but non-potable) wastewater snow on the San Francisco Peaks. A mountain range that the tribes consider sacred land, and that using waste-water on it would be “like putting death on the mountain”. The Obama administration is opposing review of the case, while the petitioners want to remind the government that they have a sacred responsibility towards the land they took from the tribes.

“It is worth remembering that our government took the Peaks from petitioner tribes. It placed the tribes on reservations and pledged to respect their cultures and traditions. It is hardly implausible that Congress passed a law in 1993 providing under these rare circumstances that the tribes’ religious liberty should be respected.”

So far, lawyers and judges haven’t been very respectful towards the tribes opposed to pumping wastewater onto sacred land just so a single ski resort can stay open longer. A Ninth Circuit judge said is was merely a case of “damaged spiritual feelings”, while government lawyers have been outright insulting towards Native belief systems.

“Courtroom observers were dismayed by the lack of cultural sensitivity on the part of government lawyers. After a witness described how the spraying of wastewater to make artificial snow would defile the sanctity of medicinal plants gathered on the mountain, a government lawyer asked if the medicine man knew he could purchase herbs at health food stores. A government lawyer also questioned a witness by going down a long list of sacred sites one by one and asking if a particular site was on federal land. In each case, the witness, a Hopi man, humbly replied, “I don’t know.” Eventually, the witness told the lawyer that his culture doesn’t view land in that way, that there is no concept of land ownership. The lawyer did not acknowledge his statement in any way, but instead went back to the list, unapologetically asking the same questions in the same manner.”

You have to wonder if Barack “Black Eagle” Obama of the Crow Nation knows and approves of what Elena Kagan and the Department of Justice are doing in his administration’s name. Will it damage his popularity among Native American Indians, many of whom supported him in the 2008 elections? If SCOTUS decides to hear the appeal, will it be on a Supreme Court that includes Sonia Sotomayor, a judge who is a seeming advocate for the rights of minority religions?

In 1994, Judge Sotomayor ruled in favor of two prisoners who claimed to practice Santeria, a Caribbean religion that involves animal sacrifice and voodoo, saying that “distinctions between ‘traditional’ and ‘non-traditional’ religions” are “intolerable.”

Whether SCOTUS decides to hear the appeal or not, it could have lasting implications regarding the application of the Religious Freedom Restoration Act, and questions of how we approach issues of religious freedom and religious rights when the land itself is sacred and holy. I’m hoping SCOTUS doesn’t decide to punt on this one, and allows the case to be heard. If not, I guess “screw your sacred land, we want to ski” will be the rallying cry of our government and court system. For more information on this case, check out the round-up of official documents regarding this case at the SCOTUS Blog. You may also want to peruse the official Save The Peaks site.

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Will Supremes Weigh in on Skiers vs. Sacred Land?

Jason Pitzl-Waters —  January 6, 2009 — 3 Comments

A story I have been covering for some time, the saga of a ski resort wanting to spray (treated) wastewater snow on the San Francisco Peaks, may be entering its final act. The snow-makers are being fought by a coalition of 13 Native American Tribal Nations who feel the act of spraying treated waste-snow is a blashpemy on par with “pouring dirty water on the Vatican”. Since 2005 the coalition have endured ignorant insults from lawyers, courtroom wins, and courtroom losses. Now the case is being appealed before the Suprem Court for a final say.

American Indian tribes are asking the U.S. Supreme Court to review a lower court’s decision that allows for snow-making on an Arizona peak the tribes consider sacred. In their petition filed Monday, the tribes contend the use of treated wastewater to make snow at Arizona Snowbowl violates the Religious Freedom Restoration Act and could contaminate natural resources.
The planned resort expansion is on hold until the court decides if they’ll hear the appeal. Tribes are hoping to successfully argue that the planned expansion and spraying of wastewater will constitute a violation of the Religious Freedom Restoration Act (which prevents actions that substantially burden free exercise of religion), while hopefully avoiding sentiments recently expressed by the 9th Circuit Court of Appeals.
In the most recent ruling, the Court found that using reclaimed sewer water to make snow for skiing on an admittedly sacred site posed no ‘substantial burden’ on the Plaintiffs’ exercise of religion in this case. According to the Court, the “only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a ‘substantial burden’ on the free exercise of religion.” The Court dismissed Plaintiffs’ religious beliefs as calling them mere “damaged spiritual feelings.”
Calling an action that tribal members have typified as “putting death on the mountain” and “a dagger [in our] spirituality” at a place they typify as “the holy house of our sacred dieties” isn’t just a matter of “damaged feelings”. It could do irrevocable harm to surviving indigenous faiths (and that doesn’t even get into the enviornmental concerns at hand). All so a single business can stay open longer and make a bit more money. For more background on this case, check out the documentary The Snowbowl Effect, and the Save the Peaks web site. Let’s hope SCOTUS sees the importance of this case and decides to give it a full hearing.

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Appeals Court Says Wastewater Fine For Sacred Mountain

Jason Pitzl-Waters —  August 12, 2008 — 6 Comments

A story I have been following since 2005 has had a new development. The United States Court of Appeals for the Ninth Circuit has overturned a panel decision restricting the use of treated wastewater snow on the San Francisco Peaks by an Arizona ski resort.

“A federal appeals court has ruled that a ski resort’s plan to use recycled wastewater for making snow would not violate the religious freedom of Indian groups who had claimed that the practice would be blasphemous to a mountain they hold sacred. The United States Court of Appeals for the Ninth Circuit, ruling in a lawsuit against the Arizona Snowbowl near Flagstaff that was filed by 13 tribes and the Sierra Club, overturned a ruling by a smaller panel of the court that said the plan would violate the Religious Freedom Restoration Act.”

The Save the Peaks Coalition, which includes 13 American Indian tribes in its membership, has been arguing that pumping treated wastewater snow onto the mountains would be a defilement of the mountain, and a blasphemy against their indigenous beliefs and culture. In addition, the coalition has argued that no environmental impact study was undertaken by the US Forestry Service or Arizona Snowbowl before deciding to use effluent, and that the claimed economic benefits of more fake snow are largely illusory. These arguments were explored in a recent documentary “The Snowbowl Effect” (which I have embedded the trailer for above).

The Appeals Court showed a sadly typical attitude of indifference and lack of understanding in this case, claiming that the only thing being damaged were the Indian’s “feelings”.

“In the most recent ruling, the Court found that using reclaimed sewer water to make snow for skiing on an admittedly sacred site posed no ‘substantial burden’ on the Plaintiffs’ exercise of religion in this case. According to the Court, the “only effect of the proposed upgrades is on the Plaintiffs’ subjective, emotional religious experience. That is, the presence of recycled wastewater on the Peaks is offensive to the Plaintiffs’ religious sensibilities…the diminishment of spiritual fulfillment – serious though it may be – is not a ‘substantial burden’ on the free exercise of religion.” The Court dismissed Plaintiffs’ religious beliefs as calling them mere ‘damaged spiritual feelings.’”

But defiling a sacred mountain so people can ski more often is more than about “damaged spiritual feelings”, it throws entire religious systems into turmoil.

“In a time when the Hopi Katsina Spirits have answered our prayers for rain and happiness, Coconino [National Forest] has placed a dagger in the Hopis’ spirituality,” – Leigh Kuwanwisiwma, director of the Hopi Cultural Preservation Office

“The San Francisco Peaks is the essence of who we are… and is the Holy House of our sacred deities whom we pray to and give our offerings,” – Joe Shirley Jr., President, Navajo Nation

“It’s like putting death on the mountain … I won’t be able to practice my religion.” – Frank Mapatis, Hualapai spiritual leader

But hey, screw their religion and culture, Snowbowl wants more snow! Needless to say, lawyers for the tribes and the Sierra Club plan on appealing this decision to the Supreme Court. We can only hope that thousands of years of tradition and faith (not to mention good environmental judgment) overcome the desire for one business to make some more money.

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Sacred Lands Safe Once More

Jason Pitzl-Waters —  April 4, 2007 — 9 Comments

Back in October of 2005 I posted about a story concerning a coalition of 13 Native American Tribes who were trying to stop a ski resort on the San Francisco Peaks (a mountain range that is deeply sacred to the indigenous peoples from that area) from pumping recycled (non-potable) waste-water onto the mountain for snow production. At the time I summed up the issue as “Screw Your Religion! We Want To Ski!” due to the attitudes taken by park officials and the owners of the resort.

“Nora B. Rasure, the supervisor of the Coconino National Forest, wrote this year in the report that the resort “has and continues to provide a valuable recreational experience to many people, and that in order to continue providing that experience in today’s physical and business environment, changes are needed.”

In January of 2006, the U.S. District Court ruled against the coalition and for the U.S. Forest Service and Arizona Snowbowl. The Coalition vowed to appeal the decision to a higher court.

“Regrettably, there is often a rift between what is legal and what is right. We will pursue all legal means to stop this project … Snowbowl is not a destination ski area. People do not travel from across the Country and around the world to ski at Snowbowl. Indeed, many of the press reports on this issue have overstated the economic contribution that Snowbowl makes to the Flagstaff economy – which is marginal. People do, however, travel from around the world to the Flagstaff region to experience the ways of, especially the Navajo and Hopi Tribes. Other than to preserve the economic viability of a private entity, there is no adequate justification for this project.” – Howard Shanker, lawyer for the Navajo Nation

Now it seem that the coalition has finally triumphed. On March 11th 2007, the 9th Circuit Court of Appeals unanimously ruled against the pumping of waste water onto the sacred mountain for the purpose of recreation.

“We reverse the decision of the district court in part. We hold that the Forest Service’s approval of the Snowbowl’s use of recycled sewage effluent to make artificial snow on the San Francisco Peaks violates [Religious Freedom Restoration Act] RFRA, and that in one respect the Final Environmental Impact Statement prepared in this case does not comply with NEPA [National Environmental Policy Act]…If Appellants do not have a valid RFRA claim in this case, we are unable to see how any Native American plaintiff can ever have a successful RFRA claim based on beliefs and practices tied to land that they hold sacred.”


Members of the coalition celebrate their victory.
Photo by Chuck Seiverd

This is a strong ruling for the rights of Native groups. The court states unambiguously that this sort of ruling is exactly what the Religious Freedom Restoration Act was created for (though this may be the first time it has been used to stop governmental action), and that Snowbowl and the U.S. Forest Service didn’t take environmental impacts into consideration in this decision. As strong as this decision is however, it may not stop an appeal to the Supreme Court, since the “mountain recreation” industry is up in arms, and the owners of Snowbowl are bitterly lashing out at the Native tribes in interviews.

If this ruling stands, it could revolutionize the struggle for the preservation of sacred lands by tribal communities, and bring forth more legal challenges under the RFRA.

“This is a national wake up call for those that will try to desecrate sacred mountains like the San Francisco Peaks. We will not allow our voices to be ignored.” – Robert Tohe, apprentice medicine man and Environmental Justice Organizer for the Sierra Club in Flagstaff, Arizona.

I personally feel that justice has been done in this case, and I am happy that the sacred land for several indigenous peoples were not carelessly desecrated for the profits of a single business. Congratulations to the Save the Peaks coalition.

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