Fixing Free Exercise: A Compelling Need to Relieve the Current Burdens

Abstract

Just north of the historic Route 66 town of Flagstaff, Arizona sit the San Francisco Peaks, beautiful spectacles of nature and glowing examples of limited government intervention and constitutional interpretation gone awry. For years, native tribes who hold the Peaks sacred have been clashing with the United States Forest Service over approval to develop a ski resort on the Peaks. This recurring dispute between religious sanctity and economic development has been analyzed both under the First Amendment‘s Free Exercise Clause and under the newer Religious Freedom Restoration Act (RFRA), a federal statute signed into law in 1993 in the aftermath of the Supreme Court‘s decision in Employment Division, Department of Human Resources v. Smith. That 1990 decision, criticized for ignoring the principle of a limited federal government and the First Amendment freedoms of American citizens, engendered a falling-out in Congress and the lower courts that moved religious freedom from its fairly well-defined position under the First Amendment to a position of confusion — where it is somewhat protected under the Constitution, but is now also protected under federal and state statutes with unknown and undefined boundaries. Using the dispute between the native tribes of northern Arizona and the federal government over the development of the Peaks, this article will demonstrate how the Supreme Court‘s decision in Smith, as well as the subsequent activities of courts and legislative bodies, has disrupted well-settled law and has created a quagmire of confusion related to religious freedom. The Supreme Court will likely have an opportunity to fix this legal disaster as the current Peaks lawsuit progresses through the court system to an inevitable writ of certiorari. As it faces this particular suit, the Court can and should overrule Smith, declare RFRA unconstitutional, and restore the proper test for the analysis of the First Amendment‘s Free Exercise Clause.

Keywords: RFRA, religious freedom, native religions