When the government’s interest in timbering led to the destruction of land traditionally used by Native Americans for religious purposes, the Supreme Court ruled against the Native Americans. The opinion read, “Whatever rights the Indians may have to the use of the [land in question did] not divest the Government of its right to use what is, after all, its land.”
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Government Actions Violating the Free Exercise of Religion Require Scrutiny
In 1987, the Supreme Court was asked whether timbering operations within a National Park over a portion of land traditionally used for religious purposes by Native Americans violated the First Amendment’s Free Exercise Clause.
Justice O’Connor’s opinion in Lyng v. Northwest Indian Cemetery Protective Association concluded that:
“Whatever rights the Indians may have to the use of the [land in question did] not divest the Government of its right to use what is, after all, its land.”
But, not all the justices agreed. Justice Brennan, joined by Justices Marshall and Blackmun, disagreed. He reasoned that the timbering in question threatened the “very existence of a Native American religion.” He concluded on a somber note:
“Today, the Court holds that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause . . . I find it difficult, however, to imagine conduct more insensitive to religious needs . . ..”
Thirteen years later, Congress would pass the Religious Land Use and Institutionalized Persons Act. At the least, RLUIPA would’ve required the government to demonstrate that its actions were the least restrictive in pursuit of a compelling government interest. RLUIPA, like RFRA, insists that government actions substantially burdening the free exercise of religion receive heightened scrutiny.
That protects all of our religious liberty.
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