The Substantial Burden Mountain: Implications of the United States Supreme Court’s Denial of Certiorari in Navajo Nation v. United States Forest Service

Abstract

As a result of judicial and legislative developments, the substantial burden inquiry has become the first step of any free exercise challenge under RFRA, RLUIPA, the respective state legislative version of RFRA, the state constitutional provisions mirroring RFRA, and all federal laws that are not neutral or are not of general applicability. Thus, the substantial burden analysis has far-reaching implications not only in the context of religious practices affected by state action, but also for actions requiring federal permits, grants, or loans and federal land use actions. Despite the importance of the substantial burden inquiry, courts have not agreed on what constitutes a substantial burden short of criminal sanctions on religious exercise or compelled actions contrary to belief. Rather than providing much needed guidance to the lower courts, the Supreme Court recently denied certiorari in Navajo Nation IV, leaving Navajo Nation v. United States Forest Service, (Navajo Nation III) as the most current and most significant guidance on the substantial burden inquiry. Unfortunately, the United States Ninth Circuit Court of Appeals in Navajo Nation III seems to have made the substantial burden threshold unduly restrictive, making a successful free exercise challenge virtually impossible. Part I of this Article summarizes the historical development of Supreme Court cases that have guided the substantial burden analysis. Over time, the Court has added a variety of factors that have made it increasingly confusing for lower courts to apply the substantial burden test. The resulting conflict and confusion in the United States Circuit Courts regarding the proper definition of “substantial burden” is presented in Part II. Part III is a close examination of Navajo Nation III in an attempt to clarify how substantial burden should be analyzed. Finally, Part IV places Navajo Nation III in the context of existing substantial burden jurisprudence, recognizing that a Supreme Court decision on this issue may be necessary.