Justices Gorsuch and Thomas Dissent from Court’s Declining to Hear Apache Religious Freedom Case
From today’s dissent from denial of certiorari by Justice Gorsuch, joined by Justice Thomas, in Apache Stronghold v. U.S.:
For centuries, Western Apaches have worshipped at Chí’chil Biłdagoteel, or Oak Flat. They consider the site a sacred and “direct corridor to the Creator.” It is a place where tribal members conduct “religious ceremonies that cannot take place elsewhere.” Recognizing Oak Flat’s significance, the government has long protected both the land and the Apaches’ access to it.
No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground. To extract copper lying beneath the land, they plan to blast tunnels that will result in a crater perhaps 1,000 feet deep and nearly two miles wide. “It is undisputed” that the government’s plan will permanently “destroy the Apaches’ historical place of worship, preventing them from ever again engaging in religious exercise” at Oak Flat.
Seeking to halt the destruction of the Apaches’ sacred site, Apache Stronghold, a nonprofit organization, sued under the Religious Freedom Restoration Act of 1993 (RFRA). That law prevents the federal government from “substantially burden[ing] a person’s exercise of religion,” unless that burden represents “the least restrictive means of furthering [a] compelling governmental interest.” In a sharply divided en banc decision, the Ninth Circuit rejected Apache Stronghold’s challenge. Though the government’s plan will result in the destruction of an ancient sacred site, the Ninth Circuit reasoned, that plan does “not impose a substantial burden on religious exercise.”
Apache Stronghold asks us to review the Ninth Circuit’s extraordinary conclusion. But the Court today turns aside the group’s request. Respectfully, that is a grave mistake. This case meets every one of the standards we usually apply when assessing petitions for certiorari: The decision below is highly doubtful as a matter of law, it takes a view of the law at odds with those expressed by other federal courts of appeals, and it is vitally important. Before allowing the government to destroy the Apaches’ sacred site, this Court should at least have troubled itself to hear their case….
In cases like Sherbert v. Verner (1963), and Wisconsin v. Yoder (1972), the Ninth Circuit observed, this Court asked whether the government’s challenged action imposed a substantial burden on religion, whether that burden served a compelling interest, and whether the government’s chosen means were narrowly tailored. Later, the Ninth Circuit continued, this Court upended that approach in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), by holding that Sherbert and Yoder‘s test for Free Exercise claims does not apply to challenged governmental actions that are “‘neutral'” toward and among religions and “generally applicable” to all persons. Later still, the Ninth Circuit noted, Congress expressed displeasure with Smith, adopted RFRA, and in doing so effe
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