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Apache Case Zeroes in on What it Means to Impose a “Substantial Burden” on Religious Exercise

The Western Apaches have long worshipped at a sacred site called Oak Flat in Arizona. Despite the sacredness of the site and centrality of Oak Flat to the Apache religion, Congress has authorized the transfer of Oak Flat, which is situated on federal land, to a copper mining company. Because the copper mine would destroy Oak Flat, the Apaches sued the government for violating their religious exercise. Their primary claim is brought under a federal statute called the Religious Freedom Restoration Act (“RFRA”), which prohibits the government from imposing a “substantial burden” on religious exercise without a compelling governmental interest.

The case hinges on the interpretation of “substantial burden.” While RFRA does not define the term, courts have interpreted it in various ways in many different types of cases. Last year, a three-judge panel of the Ninth Circuit Court of Appeals interpreted the term narrowly and rejected the Apache’s claim. Two of the three judges held that “substantial burden” is a “term of art” limited to two scenarios. The first is where the government denies “benefits on account of religion,” and the second is where the government imposes a “penalty on account of religion.” Because the conversion of Oak Flat into a copper mine is neither a denial of a government benefit or the imposition of a government penalty, the court rejected the Apache’s claim. The dissenting judge called this narrow interpretation “absurd,” “disingenuous,” “flawed,” “illogical,” and “incoherent.” In her opinion, “preventing access to religious locations and resources” imposes an even “greater burden” on religious exercise than the denial of a benefit or imposition of a penalty.

Undeterred, the Apaches asked the entire Ninth Circuit to take up the issue. The Apaches maintain that preventing a religious exercise altogether is certainly a “substantial burden” on that exercise. On March 21, 2023, the judges of the Ninth Circuit heard oral argument and pressed the attorneys on both sides regarding how “substantial burden” should be interpreted. While it will be some time before the court releases its decision, many are hoping the Ninth Circuit will abandon its narrow reading of “substantial burden” and adopt an interpretation that is consistent the intent behind RFRA’s enactment—which was to provide broad protection for religious liberty.

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