The Supreme Court refused in June to review a Ninth Circuit Court of Appeals decision allowing the U.S. Forest Service to use recycled sewer water to make snow for a ski resort on a mountain held sacred by Native Americans. Several tribes hold religious ceremonies on the federally owned mountain; they argued the sewer water would desecrate the mountain and their worship.
Had the Supreme Court taken the case, it would have set a national standard for how carefully the government treats religious practice, said Carl H. Esbeck, law professor at the University of Missouri. Congress has passed two laws in the past two decades (the Religious Land Use and Institutionalized Persons Act in 1993, and the Religious Land Use and Institutionalized Persons Act in 2000) that guarantee that the government will "not substantially burden a person's exercise of religion." Cases under both laws have made their way to the circuit courts, where judges are attempting to interpret Congress's intent.
"The Ninth [Circuit] said 'substantial effect' arises only when you are denied a benefit, like Medicare, or if you suffer a government sanction, like being put in jail, because of your beliefs," said Steven Jamar, professor at the Howard University School of Law.
In this case, Native Americans were not physically prohibited from worshiping on the mountain, and the court held that "a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a 'substantial burden.'"
At the heart of the problem, Jamar said, is whether the government should take into account how its actions affect both practices and beliefs. "That's the problem that many of us have with ...1
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