Aboriginal Whaling and RFRA

The International Whaling Commission is currently holding its 59th annual meeting in Anchorage Alaska. The big action scheduled for the meeting concerns Japanese and Danish efforts to increase their catch quotas. Both countries (and others) have been accused of masking commercial whaling programs as "scientific" or "traditional community" programs. Here I want to focus on a decision already taken. Yesterday the Commission, among other actions, renewed the five-year quota of 280 bowhead whales to be split between Alaska Natives and the indigenous people of Chukotka, Russia. Suppose that this quota is, by the lights of Alaska Natives, inadequate. Or suppose that it had been denied altogether. Would Alaskan Inuits have a valid claim under the Religious Freedom Restoration Act (RFRA)?

Although the Supreme Court struck down RFRA as applied to state and local governments in City of Boerne v. Flores (1997), the Court unanimously held in Gonzales v. O Centro Espirita (2006) that RFRA still validly binds the federal government. RFRA provides that "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the burden satisfies what appears to be the familiar strict scrutiny test. In referring to "Government" rather than "laws," RFRA thus appears to limit all actions of the federal government, including treaties and actions taken pursuant to treaties, such as the whaling quota.

It's not entirely clear that whaling counts as a religious practice. For one thing, many Inuits are Christians (in large part because of programs of forced assimilation). For another, even within the traditional Inuit religion (commonly described as a form of shamanism or nature worship), whaling is not exactly a ritual in itself. Still, subsistence whaling (and the hunting of other large sea mammals such as walruses and seals) plays a sufficiently large part in the traditional Inuit way of life that a ban on whaling could be said to "substantially burden" that way of life, and with it, the religion of which it is a part. More broadly, although the First Amendment and RFRA expressly speak of "religion" rather than "culture," I suspect that the impulse to give the Inuit an exemption from the general ban on whaling is closely connected to the impulse to give Native Americans a prima facie exemption from the general ban on peyote use: Some notion that ethnic as well as religious communities, and especially communities of indigenous peoples who have suffered a history of oppression, are entitled to practice their traditional way of life without interference from the mainstream polity, absent a compelling justification for that interference.

So, can a whaling quota survive strict scrutiny? I would like to think so. In Church of Lukumi Babalu Aye v. Hialeah (1993), the Supreme Court applied strict scrutiny to Hialeah's prohibition on ritual animal sacrifice and found that it failed. However, the problem with the Hialeah ordinances was that they were not narrowly tailored. They targeted practitioners of Santeria while permitting animal cruelty if practiced for non-religions reasons. As Justices Blackmun and O'Connor noted in a concurrence in the judgment in Lukumi: "A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in [Lukumi] does not necessarily reflect this Court's views of the strength of a State's interest in prohibiting cruelty to animals." In my view the government has a compelling interest in preventing cruelty to animals, and that encompasses the deliberate killing for food, even by humane methods (which harpooning is not), of highly intelligent animals such as whales. Under this view, even a complete ban on whaling, with no indigenous peoples exception, would survive scrutiny under RFRA.

To be sure, it would be open to religious whale hunters to argue that the government does not prohibit the slaughter for food of other intelligent animals, such as pigs, and thus that the law is not narrowly tailored. But while that argument might succeed under constitutional strict scrutiny---which condemns underinclusiveness no less than overinclusiveness---it should fail under RFRA, which does not require "narrow tailoring" as such. Instead, it requires that a law substantially burdening religion be "the least restrictive means of furthering [the] compelling interest" it serves. On its face, that test forbids overinclusive but not underinclusive laws (and treaty provisions or applications).

A whaling quota might also be defended pursuant to some other interest, such as environmental protection. Although I'm confident that the courts would find that environmental protection is a compelling interest, questions of narrow tailoring would be quite thorny. Would the government need to show that the incremental damage done to the population of some whale species would make it vulnerable to extinction? Would it have to show that the particular species of whale sought to be hunted plays a vital role in an ecosystem? In the environmental health of the planet as a whole? Here, as elsewhere, we see that the strict scrutiny is mushier---and thus less likely to provide determinate outcomes---than the fatal-in-fact doctrine of a generation ago.