Precedent: Friend or Foe?
- Mea Chiasson
- Apr 2, 2017
- 3 min read
This week I have been thinking a lot about the power a court case can have. Specifically, a bad one.
Court cases have an ability to come alive much past their time, and they can breathe life into other decisions. In that ability lies a beauty and a danger. The beauty comes from the ease that precedent provides. Often times similar issues arise, and precedent allows the courts to use reasoning that worked in the past to help guide the new issue. However, the danger lies when the reasoning is flawed, biased, or harmful and it is used again. This is not to say that a court has to follow precedent, but it can if it wants to. This is why Lyng and Smith were so troublesome; it’s because they set dangerous precedents.
Now, the Religious Freedom Restoration Act tried to repair the damage Smith had done, but that hasn’t fixed all the problems. In fact, it turns out that it is possible to get around the act on the technicality of the definition of “substantial burden”. I saw this when I read the Navajo Nation v United States Forest Service en banc decision from 2008, which by then end of I was legitimately angry with the Ninth Circuit Court.
Protests against the Navajo Nation v USFS case
To begin explaining, it’s important to know that courts like precedent. It provides stability and a backing for their decisions. However, the Navajo Nation decision had a complicated relationship with precedent. On one hand, it ruled out the applicability of several different precedents that would have pushed the case in a different direction. On the other hand, the majority panel used the cases Yoder and Sherbert to set a very strict precedent definition of “substantial burden” (an incredibly important concept in free exercise cases). In addition, the majority decided to use Lyng as a precedent to back up their decision. This both follows and sets bad precedent.
The decision follows bad precedent because, as I discussed last week, Lyng was harmful in that it declared that essentially destroying the practice of a religion was not a burden great enough to apply the compelling interest test to because the government own the land. That’s a huge deal because in most sacred land cases, the government owns the land. The decision sets bad precedent because the crazy strict definition of substantial burden is now laid out and can be used again in the future, continually barring sacred land cases from even being considered because they do not fit the definition.
You may be wondering, can’t a court decide not to follow that precedent and redefine substantial burden on its own? Well yes, it can. However, like I said, courts like precedent, and if a court thinks like this Ninth Circuit majority did, stuck in box mentality and doesn’t take Native American religious claims seriously, then it very well may follow this precedent. Here is where we run into problems. It will take a court deciding to break precedent to allow Native American religious freedom issues to be given the proper consideration and scrutiny they deserve. So far, I have only seen this from the 3-judge panel from the Ninth Circuit, which was then overruled by the en banc decision. We’ve dug religious freedom for American Indians into a hole that is very difficult to climb out of, and it’s frightening for the future of these cases.
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