No septic required, court tells Amish

In the latest chapter in a long-running dispute, a Minnesota appeals court sided last week with an Amish community whose religious beliefs reject the use of septic tank systems to handle “gray water,” or nontoilet household waste water. But an attorney for the Swartzentruber Amish community in Fillmore County, Minn., says the dispute is still percolating even if the wastewater is not.

In the July 10 opinion, a three-judge Minnesota Appeals Court panel reviewed a trial court ruling for the second time since the lawsuit began six years ago. The panel overruled the lower court in favor of the state. Judge Diane Bratvold said the county and the state’s Pollution Control Agency failed to establish a sufficiently compelling interest to override the community’s religious beliefs, a requirement of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

While Amish people are not homogeneous in their beliefs, most reject modern technology. The Swartzentruber Amish are among the most traditional, believing that modern septic systems “must be avoided as a way of the world, antithetical to a faith that tells them to be separate in order to live as God intends,” noted the court.

Bratvold found the state’s general interest in preventing contamination of groundwater compelling, but she said RLUIPA requires the court to scrutinize why denying an exemption is also in the state’s compelling interest.

“In short, the record contains no data on the actual content of appellants’ gray water, much less data showing that appellants’ gray water poses a substantial threat to public health,” Bratvold concluded. She said the trial court erred “by relying on generalized expert testimony and speculation by a county employee about ‘sludge’ and ‘murky’ water on appellants’ farms.”

Bratvold also questioned the state’s ability to demonstrate that a septic tank system was the least restrictive means of meeting the state’s interest, another requirement of RLUIPA. State regulators argued that septic tank systems were the only way to handle waste in a safe manner. Amish families said pouring gray water into mulch ponds where wood chips and then soil would filter it, much like septic fields, was adequate.

In the end, Bratvold concluded that the state’s evidence was too speculative, as there was no proof of the content of the gray water, amount of water used, number of families using water, or amount of discharge.

The dispute has flowed back and forth between the state and the Amish since 2013, when Fillmore County adopted an ordinance requiring most homes not on a municipal wastewater system to have septic tanks. Community members sought an exemption, but the county refused, ultimately bringing an enforcement action against 23 Amish families, threatening them with civil fines, criminal penalties, and even eviction.

State courts sided with regulators, but the U.S. Supreme Court turned the tables in 2021 when it set aside a previous Minnesota Appeals Court ruling. The court sent the case back for a review under its ruling in Fulton v. City of Philadelphia, when it upheld the right of Catholic Social Services not to be forced to place foster children with same-sex couples. In a concurring opinion looking to Fulton, Supreme Court Justice Neil Gorsuch said Minnesota state courts failed to apply strict scrutiny, a high standard of review, to the state’s claims against the Amish.

“RLUIPA prohibits governments from infringing sincerely held religious beliefs and practices except as a last resort,” Gorsuch wrote. Then, in a swipe at bureaucrats, he listed their offenses: “County officials have subjected the Amish to threats of reprisals and inspections of their homes and farms. They have attacked the sincerity of the [Amish] faith. And they have displayed precisely the sort of bureaucratic inflexibility RLUIPA was designed to prevent.”

The ruling has ramifications beyond its unique context. Thomas Berg, a professor at the University of St. Thomas School of Law in Minneapolis who assisted with the case, said that the case reaffirmed a longstanding legal principle. “They can’t just say, ‘We have a compelling interest in preventing contamination of groundwater with dangerous substances,’” Berg said, adding that the government has to prove that the compelling interest affects the case in question.

Berg pointed to a 1972 case, Wisconsin v. Yoder, when the Supreme Court ruled that, under the free exercise clause of the First Amendment, the state had to show a compelling interest in not exempting Amish children from compulsory school requirements. Just showing a general interest in the education of children was deemed insufficient to show a compelling interest.

Berg hopes the court ruling ends the litigation but admits it could continue. He said regulators could seek review of the ruling by the Minnesota Supreme Court, find a way to accommodate the Amish, or bring another enforcement action—this time with better proof of the effects of gray water on groundwater.

Berg, who just released Religious Liberty in a Polarized Age, said the value of having laws like RLUIPA and its 1993 predecessor, Religious Freedom Restoration Act, is they can force parties to resolve their disputes. “There’s often a way of reaching a settlement that can protect the public interest and the religious practice,” he said.

With less than three weeks to go before he must file an appeal, Fillmore County Attorney Brett Corson seems to understand that more than plumbing is at stake. “In a county like ours, the Amish community is a big part of our community,” he said. “They’re our neighbors and friends. We work together. It’s one of those things we have to make a solid decision on.”