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Yesterday, the Supreme Court denied a petition for certiorari in Apache Stronghold v. United States. That case involves a Religious Freedom Restoration Act (RFRA) challenge by an American Indian non-profit organization to the congressionally authorized transfer to mining companies of federal land that Western Apache deem sacred. The companies plan to extract the copper underneath and turn the spot into a massive crater, as deep as 1,115 feet and almost two miles wide. The sacred spot—Chí’chil BiƂdagoteel, or Oak Flat—has been used for centuries by Western Apache for religious ceremonies, is central to their creation story, and under their beliefs is home to spiritual beings and plants crucial to their religion. Further, the federal government protected the land from 1905 until 2014, when Congress authorized the sale in the wake of the discovery of copper under Oak Flat’s surface by attaching a “last-minute rider” to the 698-page, “must-pass” National Defense Authorization Act.

A Ninth Circuit panel, relying on circuit precedent, ruled that under RFRA, Apache Stronghold had not shown its religious practice would be substantially burdened, even though the mining would “make worship on Oak Flat impossible.” The Ninth Circuit reheard the case en banc and ruled 6-5 that—for a different reason—Apache Stronghold could not satisfy the threshold substantial burden requirement for a RFRA claim. The en banc majority reached this conclusion by creating a special RFRA rule for claims involving “the disposition of government real property.” Where such claims are at issue, a plaintiff can satisfy the substantial burden requirement only by showing that the government coerced her to deny her religious beliefs or that the government discriminated between religions. Because that did not occur in this case, there was no substantial burden on religion as required to invoke RFRA’s protections.

Yesterday, the Supreme Court denied cert in the case over a dissent by Justice Gorsuch, joined by Justice Thomas, after the case was distributed for conference a staggering sixteen times. Justice Gorsuch argued in his dissent that the “Ninth Circuit’s extraordinary holding easily merits this Court’s attention” for three reasons: (1) “It is far from obviously correct”; (2) “It poses a question of exceptional importance”; and (3) “it implicates a circuit split.” Yet the Court denied the petition. There are a couple of possible reasons why.

First, Justice Alito recused himself from considering the petition. The Court only days before had announced that it was divided 4-4 in St. Isidore of Seville Catholic Virtual School v. Drummond, where Justice Barrett had recused herself, and enough Justices may have been unwilling to risk wasting the Court’s resources only to reach another 4-4 outcome in Apache Stronghold. Four Justices must vote in favor of cert for it to be granted, so it appears that Justices Gorsuch and Thomas were unable to persuade more than one Justice to join them in voting to grant cert here.

Second, it’s possible some of the reasons that may have affected the majority Ninth Circuit en banc panel also influenced enough of the Court here. There has been an argument that it would open a Pandora’s Box if people could successfully bring RFRA claims against federal government decisions about how to use federal government land. Likewise, the judges below and some of the Justices may have deemed a RFRA claim in this context to be one of the few scenarios where the government could satisfy strict scrutiny—showing a compelling interest and acting in the least restrictive means—in how it manages its property, and thus did not want to take the case only to rule against Apache Stronghold on other grounds.

But the problem with the Ninth Circuit’s ruling was that the way it reached its holding put the cart before the horse and thus distorted the RFRA analysis. Whether a plaintiff’s religion is substantially burdened is an independent and threshold inquiry that does not determine which party ultimately wins. Furthermore, the substantial burden analysis should solely focus on the claimant, not the defendant. To the extent the Ninth Circuit and the Supreme Court analyzed the substantial burden requirement in light of the federal government’s obvious interest in controlling and disposing of its own property, the former hollowed out the substantial burden requirement, and the latter missed an opportunity to correct that doctrinal deformity without necessarily needing to hand Apache Stronghold a victory. Given the potential importance of the government interest at issue and the fact there may not have been a least restrictive means to accomplish that interest, it’s unclear whether Apache Stronghold would win under the strict scrutiny analysis (and that would be up to the lower courts to determine in the first instance anyway).

That’s unfortunate for religious liberty more generally and may have harmful ramifications beyond just this case, as Justice Gorsuch pointed out in his dissent. For instance, as he noted, for a time the National Park Service prevented the Knights of Columbus from holding their longstanding Memorial Day Mass in Virginia’s Poplar Grove National Cemetery based on the Ninth Circuit’s erroneous reasoning, before relenting in the face of public pressure. And based on the Ninth Circuit’s new RFRA carveout for federal property, he argues, the federal government could prevent worship at Martin Luther King Jr.’s Ebenezer Baptist Church as it is now on federal land, as well as other historic churches located on federal property. It’s also odd that the Court did not hold onto Apache Stronghold until Mahmoud v. Taylor was decided. Mahmoud deals with a similar question—what a substantial burden is—just under the Free Exercise Clause rather than RFRA. But as the Court has noted, the two provisions are interpreted in tandem on such issues, so the Court could have GVR’d (granted, vacated, and remanded) Apache Stronghold after the Mahmoud decision comes down in late June or early July to give the Ninth Circuit another crack at applying a sounder substantial burden analysis in light of Mahmoud’s guidance. But for some reason, the Court did not choose this option either.

As for Apache Stronghold, the federal government has announced its plans to effectuate the transfer of land without delay, on or shortly after June 16.