The Law and High Pillars

In United States v. Friday, No. 06-8093, the Tenth Circuit considered whether the Religious Freedom Restoration Act prohibited the prosecution of a Native American who shot a protected eagle for use in a religious ritual without a permit.  The short answer is no. However the court considered a myriad of issues over the course of a forty-four page opinion before reaching this conclusion.

One of the major questions considered by the court was whether it substantially burdened the defendant’s religion to obtain a permit in advance of taking an eagle.  The court noted that many religious activities, such as building a church, require some sort of advance authorization.  It also noted that the defendant never testified that he had a religious objection to using the permit system. 

The court then considered whether applying for a permit would have been futile.  Among other things, the District Court had found that the Fish and Wildlife Service had a “policy of discouraging requests for eagle take permits for Indian religious purposes.”  Thus, one of the many issues the court considered was whether a permitting process which would have allowed the defendant to seek a permit to take an eagle legally was unavailable to him because it was not adequately publicized. Judge McConnell held that:

The process is not a secret.  Unlike the laws Caligula put in small print ‘hung up upon high pillars’ so nobody could read or obey them both the prohibition on taking eagles and the availability of permits for tribal religious purposes are published in the U.S. Code. The regulations are published in the code of federal regulations.  Both the statutory and regulatory texts are available on the FWS website, which also contains a link to an online copy of the application for a permit to take an eagle.  That is at least as much notice as is given to the average criminal defendant subject to the legal fiction that ‘everyone is presumed to know the law.”

(citations omitted).  Personally, I disagree with the assumption that publishing something in the C.F.R. makes it more accessible that putting it on a high pillar, but the point is well taken.