Summary of facts: As their ancestors did for thousands of years, members of the Lipan Native American Church worship at a sacred site located at a bend in the San Antonio River within what is now a park in San Antonio, Texas. Church members believe the trees and the cormorant birds that nest near the river are a bridge between this world and the afterlife, and worshippers cannot properly observe certain religious ceremonies without specific trees and nesting cormorants. In 2022, the City of San Antonio announced “reformation efforts,” which included uprooting most of the trees and driving the cormorants away from the sacred site. The proposed plan would make it impossible for church members to continue performing their religious services.

Members of the church sued the City of San Antonio in federal court under the U.S. Constitution’s Free Exercise Clause and the Texas Religious Freedom Restoration Act (RFRA), arguing that the city’s plan substantially burdens their religious exercise. The district court determined the members’ religious freedom was not substantially burdened by the City’s plan, and that the City satisfied strict scrutiny under the Texas RFRA and the Free Exercise Clause. The church members appealed to the U.S. Court of Appeals for the Fifth Circuit. A panel of that court agreed the church members did not suffer a substantial burden on their religious exercise, reasoning that the church members could simply find some other location with nesting cormorants to hold their services. The Fifth Circuit then denied a petition for rehearing over a strong dissent. The church members have now asked the U.S. Supreme Court to hear their case.

RFI’s position: Religious liberty protects pluralism only if it protects practices that officials and judges do not already know. Unfamiliar practices are more vulnerable to being recast by governments and courts as cultural preference, personal taste, or an optional means of achieving a more general spiritual end. Courts are authorized to inquire into the sincerity of religious freedom claims that litigants raise but not into whether a belief is reasonable, orthodox, central, or logically compelled. The Fifth Circuit decision crosses that line. In this case, church members testified that the riverbend, the trees, and the cormorants are necessary components of ceremonies that cannot be performed elsewhere. Yet the court treated the possibility that cormorants might relocate as a reason to find no substantial burden. A test that permits judges to decide whether an alternative is “good enough” invites unequal treatment. Members of well-known traditions can often explain their practices using concepts familiar to the bench. Adherents of indigenous, land-based, small, or recently arrived traditions cannot count on that background knowledge. As the ample history of discrimination against Native American religious practice demonstrates, protection should not turn on judges’ theological fluency or familiarity.

Read the brief here.