The United States oft en styles itself a haven for the freedom of religion and equal justice. In spite of these lofty ideals, U.S. courts oft en apply the Free Exercise Clause of the First Amendment unevenly, protecting Old World religions but not Native American religions in the context of sacred sites. These issues recently took center stage in Apache Stronghold v. United States, but the case law shaping these unequal outcomes dates back over thirty years to Lyng v. Northwest Indian Cemetery Protective Association. Scholars roundly criticize Lyng and the divergent outcomes it produces between Indigenous religions and others. Recent threats to Indigenous religious autonomy demand a new approach.
This Comment proposes a modified analysis for free exercise claims by applying the emergent Equal Liberty Approach. This approach modifi es the existing “substantial burden” test to account for equality-based outcomes. This Comment will reanalyze how this approach would affect the sacred sites cases since Lyng, all while holding space for the deleterious costs exacted by the existing sacred sites case law.
