Cole Campbell, CLS ’21
A United States District Court recently found that particular regulations targeting littering—and ostensibly unauthorized immigration—substantially burdens the free exercise of some religious practices. Because these regulations are not the least restrictive means of fulfilling a compelling government interest, the court declared them invalid under the Religious Freedom Restoration Act.
Understanding how federal littering and permitting regulations could be invalidated as unduly burdensome on religious practices requires a bit of statutory background. The Religious Freedom Restoration Act, or “RFRA,” was passed by Congress in 1993 to protect the free exercise of religion. At its core, RFRA exempts religious practitioners from laws that substantially burden the exercise of their religious beliefs. But the government can override the exemption if they show that the application of that law to that practitioner is the “least restrict means” of furthering a “compelling government interest.”
Lawyers and law students will recognize that language as akin to the “strict scrutiny” test employed by courts to adjudge government interference in sensitive areas like free speech and religious liberty. Here, Congress essentially imposed strict scrutiny on all federal action that touches on religious practice. Congress is understood to have overruled or superseded a past Supreme Court holding, Employment Division v. Smith (1990), which held that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”
Enter the defendants in United States v. Hoffman (D. Ariz. 2020). The defendants, including named defendant Natalie Hoffman, are volunteers with “No More Deaths,” an organization associated with the Unitarian Universalist Church of Tucson. No More Deaths was founded to combat the deaths of migrants who attempted to enter the United States across dangerous terrain. The group would leave jugs of water in highly trafficked desert areas to help prevent dehydration.
And the defendants did just that in the Cabeza Prieta National Wildlife Refuge in southern Arizona. They entered the park without the requisite permitting, travelled down a restricted-access road to their destination, and dropped off food and water for the anticipated migrants. The defendants were subsequently charged with violating a series of regulations governing the CPNWR, including one that prohibited leaving water bottles, food, blankets, and clothing on the Refuge.
The defendants ultimately raised a defense under RFRA, claiming that the park regs could not be applied to their activities, which they characterized as religious in nature. A typical RFRA analysis will consider first whether the Defendants are being prosecuted for a “sincere exercise of religion,” and then the court will move on assess whether the burden is substantial, whether the government interest is compelling, and whether the law or regulation is the least restrictive means of fulfilling that compelling interest. The defendants succeeded on all counts, but the court’s “sincere exercise of religion” analysis is particularly interesting.
The bulk of the court’s analysis revolves around determining whether the defendants’ practice can be characterized as religious, and whether it is sincere. This is perhaps understandable: the court does not want every defendant cloaking their illegal actions in the garb of religious practice. But it is also a delicate venture. Throughout the opinion, the court is self-conscious of the distastefulness of a court evaluating whether someone’s beliefs are sufficiently sincere—especially in the religious context. And because “No More Deaths” is not overtly religious, but is rather associated with the Unitarian Universalist Church, the court had a tough task on its hands.
The court ultimately engaged in a fine-grained analysis of the defendants’ religious beliefs. With certain defendants, the religious nature of the acts was apparent; Reverend Fife tied his actions to Christ’s words at the Last Judgment. But another defendant gestured towards her belief that their humanitarian activity was “sacred,” and characterized her moments of silence in the desert as a “sort of prayer.” Some of the analyzed testimony would probably not strike one as traditionally “religious,” but the court cited precedent from the Supreme Court and a pair of sister circuits that suggests the protected belief need not fall within an established religion.
The Ninth Circuit will have its say on whether the defendants’ activities are properly protected under RFRA: the prosecutors have reportedly appealed the District Court’s judgment.
 United States v. Hoffman, 2020 U.S. Dist. LEXIS 19060 (D. Ariz. 2020).
 42 U.S.C. 2000bb-1(b).
 Employment Div. v. Smith, 494 U.S. 872, 879 (1990).
 50 C.F.R. 27.93.
 Hoffman, 2020 U.S. Dist. LEXIS 19060 at *10-24.
 Id. at *10 (“The Supreme Court has long recognized that a determination of what is a religious belief or practice is a most delicate question” (internal citations and quotation marks omitted)).
 Id. at *14-15.