ChesterNewMatter4thQtr2021 - 17
Supreme Court granted the writ, vacated the state court
decision, and remanded for further action in light of
It is my view that water is one of the most important
molecules we have on earth: water is essential for
human survival and is required for myriad uses and
endeavors. So, it is important that we treat it carefully,
thoughtfully, and not take it for granted (it may be hard
to think of it in this way in the wake of Hurricane Ida
when up to 8 inches of rain fell locally in a few hours,
but it is also true that many areas in the western part of
our nation are desperately short of water). It is also my
view that government has a significant and compelling
interest in making sure that domestic wastewater (both
grey water and black water) is managed safely and in
an environmentally appropriate manner. However, the
holding in Mast makes it clear that this governmental
interest is not enough.
Justice Gorsuch, quoting from Fulton in his concurring
opinion in Mast, described the standards for evaluating
government action which burdens the exercise of
religious beliefs, as follows:
Fulton makes clear that the County and courts below
misapprehended RLUIPA's demands. That statute
requires the application of " strict scrutiny. " Under that
form of review, the government bears the burden of
proving both that its regulations serve a " compelling "
governmental interest-and that its regulations are
" narrowly tailored. " Fulton, 593 U. S., at ___ (slip op.,
at 13); 42 U. S. C. 2000cc(a)(1) ( " No government
shall impose or implement a land use regulation in
a manner that imposes a substantial burden on the
religious exercise of a person . . . unless the government
demonstrates that imposition of the burden . . . is
in furtherance of a compelling government interest;
and is the least restrictive means of furthering that
compelling governmental interest " ).
Slip op. at 3-4.
Justice Gorsuch goes on to say:
Accordingly, the question in this case " is not whether
the [County] has a compelling interest in enforcing its
[septic system requirement] generally, but whether it
has such an interest in denying an exception " from that
requirement to the Swartzentruber Amish specifically.
Slip op. at 4, (citations omitted).
Interestingly, Fillmore County asserted, based on
an expert opinion, that grey water mulch basins are
not reliable, require careful and burdensome ongoing
maintenance, and must be located on suitable terrain.
This was not enough for Justice Gorsuch, who points to
RLUIPA, and asserts that it is the government's burden
to prove " that its rules are narrowly tailored to advance
a compelling state interest with respect to the specific
persons it seeks to regulate. " Slip op. at 6.
I assume that on remand the Minnesota state courts
will allow the use of alternative grey water mulch basins.
However, time will tell if the use of grey water mulch
pits can adequately and consistently treat grey water.
There are many grey water mulch pit designs, and it
seems clear that these systems must be designed and
Continued on page 18
New Matter | 17


Table of Contents for the Digital Edition of ChesterNewMatter4thQtr2021

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