William Perry Pendley

The Ninth Circuit panel, relying on the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), reversed the district court and invalidated the Forest Service’s decision. After a lengthy discussion of the religious beliefs of various American Indian tribes, the panel held that, by adopting RLUIPA, Congress had expanded the Constitution’s Free Exercise Clause and implicitly overturned earlier court rulings that had rejected similar demands by American Indian religious practitioners. In the panel’s view, using federal land as proposed by Snowbowl and approved by the Forest Service is tantamount to a government edict that Christian “baptisms be carried out with ‘reclaimed water.’”

The panel’s ruling, which gives American Indian religious practitioners a veto power over lawful activities on land that belongs to the American people, is the first use of RLUIPA regarding federal lands, an application never intended by Congress. All other RLUIPA cases have involved local zoning, the practice of religion by prison inmates, and the use of illegal drugs by religious practitioners. Moreover, by placing American Indian religious practitioners in the favored position of determining, on religious grounds, what use may be made of public land, the panel’s ruling violates the Establishment Clause, which necessitates government neutrality regarding religion. No wonder the Ninth Circuit agreed to rehear the case.


William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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