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Mad: But I think it's worth discussing the extent to which it is both just and prudent to accomodate religious traditions, particular those with established roots in America.

I think we should be guided by the accommodation that would be shown to any cultural group, religious or otherwise. (I really don't like the word accommodate here, can we turn to consideration, or is your use of accommodate significant to your perspective?) Had there been a group that lived at the foot of the Peaks who used the mountains to get back to nature. They gathered all kinds of benefits (mental, physical, emotional) from those Peaks, and used the Peaks as an expression for their respect of the natural world. Say their use of the Peaks were equally affected by the treated sewage effluent. Because they are atheists, their only recourse would be to free expression under the free speech clause of the First Amendment (outside of the environmental issues that anyone could pursue). Why does religion get an extra consideration under RFRA? Just that consideration is a "law respecting an establishment of religion," clearly restricted by the First Amendment. It gives greater value to the ideas and expressions of the religious community than the non-religious community, thus "an establishment of religion."

I've stated before and I'm reiterating now because I want to be sure you understand that I have no problem with legal/judicial/constitutional considerations for religious expression. I just don't agree with RFRA's extension of that consideration to such an onus on the government to accommodate religion in a way no other ideological group would be accommodated. Such accommodation is clearly an establishment of religion.

Mad: If you had to sum it up, how important to our judicial practice would you say the background provided by the documents themselves ought to be?

Outside of the Constitution (I'm assuming), what documents are you speaking of here? I'm not sure I quite get the intention of your overall statement/question in this paragraph, if you don't mind clarifying. The Constitution is not a document that speaks to justice itself. It outlines a judicial branch and certainly provides protections to the citizenry which are necessarily respected within the justice system. Are you asking if a just outcome and a constitutional outcome are in conflict, what should take precedence?

Mad: I suppose that depends on what exactly the alternatives entail. Is there something about the word consideration that's significant to your perspective?

As I said above, I think "accommodation" presumes some sort of adaptation or change. Whereas "consideration" considers such a possibility, but does not presume it. I think there should always be a consideration of free religious expression, but I don't think accommodation is always warranted.

Mad: Which should be fine, since I'm not really talking about RFRA.

Well that's kind of all that I was talking about with this case. The Plaintiffs were granted relief under RFRA, that's an issue for me.

Mad: as though it were somehow assimilable to the standards we apply to, say, political expression. I'm not sure whether or not our system is at all capable of dealing with religious acts as significant apart from their value as a kind of statement.

I disagree. Free religious expression incorporates religious acts themselves. For instance, accommodation was granted during prohibition for the drinking of sacramental wine. In fact, when I think of free religious expression, I am mostly considering the freedom to act according to religious ideology. I don't have any of my caselaw in front of me, but I think it was O'Connor who stated in an Opinion that free religious expression, without a consideration of exercise, was a useless clause. And this was pre-RFRA. Again, why the extension?

I know you haven't been part of this discussion, and don't have a copy of the book, but much of what has been addressed centers on accommodation for religious acts--financial support for religious schools; religious garb for public school teachers; access to public property for religious instruction; access to military chaplains; sacramental use of controlled substances. These are all religious practices that have been granted a lot of consideration in U.S. Courts. I think you have made a significant point that such consideration is probably more likely to accommodate European concepts of religion as opposed to eastern and America's indigenous populations' concepts of religion. But that does not mean the consideration does not extend to religious acts, because it has and continues to do so.

Free religious expression, as in acts, are legally inhibited when they violate the rights of others, or require government accommodation that wavers near government endorsement of religion. This is why I keep coming back to my argument that the First Amendment should be enough. Plaintiffs should have sued under the First Amendment, not RFRA.

With regard to the instant case, the acts (meaning the actual physical use of the Peaks) are not largely affected by the treated sewage effluent. The medicine men could still collect the ingredients for medicine bundles. According to environmental studies, the water would not be contaminated so it too could continue to be collected and used for steaming rituals. In fact, I don't remember reading that the actual physical use of the mountain would change at all for any of the accepted Plaintiff religions. Rather, the perception of the use of the mountain was at issue. Though water could be collected and used with no adverse physical effect, the Plaintiffs claimed that their followers would perceive the water to be different. The same with the perceived change in the efficacy of the medicine bags. And again, with the perceived change in the purity of the mountain to house the Plaintiffs' spirits. Yet no proof was offered to demonstrate whether the perceived effect would have an actual effect. There was no finding that the steam ritual would lose its religious significance if it came from a mountain "contaminated" by treated sewage effluent. Additionally, Plaintiffs did not demonstrate that their medicine bundles would no longer be able to ward off spirits if they were collected from the Peaks on which treated sewage effluent was used. And again, the Court just accepts a mere statement that Plaintiffs' spirits could not reside in the Peaks under such conditions.

Now it takes an extraordinary stretch of credulity for me to accept such testimony as credible in a U.S. Courthouse. However, our Constitution demands from our courts, and our citizenry, such consideration, as the First Amendment requires that Congress (or our government) does not prohibit the free exercise of religion. Of course such a statement does not end the discussion, and there are decades of caselaw (some good, some bad) that work out a definition for the prohibition of the free exercise of religion. RFRA interferes with all of that caselaw, and at the same time demands an establishment of religion. This is not an accommodation of religion, it is a legislative encroachment on judicial decisions and the Constitution, without an official amendment to the Constitution.

Mad: If the judicial system can't work up some way to deal with religious claims that treats religious actions as (at least in some ways) distinct from a statement --

See, the thing is, they have worked up a way to deal with it. Now I'm not saying the results were solid, nor were they always consistent, but there was jurisprudence on this issue. My problem is that Congress decided they didn't like the jurisprudence so they enacted legislation to get around those judicial decisions, and that legislation is unconstitutional as it establishes religion by granting it accommodation above and beyond non-religion.

Mad: Mostly I'm just interest in the political philosophy that underlies your arguments. I'm not setting a trap, if that's what you're worried about.

Really, because it seems otherwise. (Just teasing.) For some reason, however, I'm always nervous about that with you, Mad. No worries though, it's good practice.

I think my "political philosophy" (to be honest I never even considered naming a political philosophy) is probably pretty similar to how I've heard you discuss your theistic philosophy. It's a work in progress. There are two concepts that kind of propel much of the development of a quasi-political philosophy. I think equal representation and genuine equal consideration are paramount to almost all the ideals for which this country, hopefully, strives. I think related to that, but distinct, is the protection of the minority from the imposing majority.

I'm now chuckling to myself because I can imagine you thinking that a statement like that smacks of hypocrisy after arguing against minority American Indian tribes who are trying to save their sacred land from the imposing federal government. But let me reiterate, my issue with Navajo Nation v USFS is with the relief as granted under RFRA. I think RFRA is clearly an imposition of a majority (unconstitutional accommodation of religion) against a minority (non-religious--just consider my atheist scenario above, who would receive no special accommodation outside the Constitution).

Sidebar for your final question.