Amicus Curiae Brief — Gary Perez, et al., Petitioners v. City of San Antonio, Texas

Supreme Court briefAug 3, 2026

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No. 26-15

IN THE

Supreme Court of the United States

GARY PEREZ, ET AL.,

PETITIONERS,

CITY OF SAN ANTONIO, TEXAS,

RESPONDENT.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF RELIGIOUS FREEDOM

INSTITUTE AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

JUDD E. STONE II

Counsel of Record

CHRISTOPHER D. HILTON

ARI CUENIN

CODY C. COLL

STONE HILTON PLLC

600 Congress Ave.

Suite 2350

Austin, Texas 78701

judd@stonehilton.com

(737) 465-3897

Counsel for Amicus Curiae

QUESTIONS PRESENTED

The Petition for a Writ of Certiorari presents the following questions:

1. Whether the Religion Clauses of the First

Amendment permit courts, when deciding

whether government action burdens religious exercise, to override a claimant’s sincere theological judgment of what the religious exercise requires.

2. Whether the government can satisfy its

burden to prove that its action is the least religiously restrictive means available when,

after notice that its action would burden religious exercise, the government admits that

it failed to consider any workable alternatives prior to litigation.

The Court should grant the Petition, answer these

questions in the negative, and reverse the judgment of

the court of appeals.

(I)

TABLE OF CONTENTS

Page

Questions Presented ....................................................... I

Table of Contents ........................................................... II

Table of Authorities ..................................................... III

Interest of Amicus Curiae .............................................. 1

Summary of Argument ................................................... 2

Argument ......................................................................... 3

I. Courts May Test Sincerity, But May Not

Redefine What a Sincere Religious Exercise

Requires. .............................................................. 5

II. An Objective-Necessity Test Predictably

Disadvantages Unfamiliar and Minority

Faiths. ................................................................. 12

III. Strict Scrutiny Requires Contemporaneous,

Genuine Consideration of Less-Restrictive

Alternatives. ....................................................... 18

IV. The Questions Presented Are Important,

Recurring, and Cleanly Presented. ................. 22

Conclusion ...................................................................... 24

III

TABLE OF AUTHORITIES

Page(s)

Cases:

Africa v. Pennsylvania,

662 F.2d 1025 (3rd Cir. 1981) ................................... 14

Apache Stronghold v. United States,

145 S. Ct. 1480 (2025) ................................................ 15

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................ 5, 8, 9, 10, 21, 22

Calcutt v. FDIC,

598 U.S. 623 (2023) .................................................... 19

Cath. Charities Bureau, Inc. v. Wis. Lab. &

Indus. Rev. Comm’n,

605 U.S. 238 (2025) ...................................................... 7

Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) .............................................. 14, 20

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................................... 10

Frazee v. Ill. Dept. of Emp. Sec.,

489 U.S. 829 (1989) .................................................... 13

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ................................................ 8, 14

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006) ................................................ 8, 21

Holt v. Hobbs,

574 U.S. 352 (2015) ...................................... 8, 9, 11, 18

Jones v. Wolf,

443 U.S. 595 (1979) .................................................. 6, 7

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................................... 11

Lyng v. Nw. Indian Prot. Ass’n,

485 U.S. 439 (1988) .............................................. 13, 14

Mirabelli v. Bonta,

607 U.S. 492 (2026) .................................................... 18

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ...................................................... 20

Navajo Nation v. U.S. Forest Serv.,

535 F.3d 1058 (9th Cir. 2008) ................................... 14

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

591 U.S. 732 (2020) ...................................................... 6

Presbyterian Church in U.S. v. Mary Elizabeth

Blue Hull Mem’l Presbyterian Church,

393 U.S. 440 (1969) ...................................................... 6

Ramirez v. Collier,

595 U.S. 411 (2022) .............................................. 11, 21

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ...................................................... 19

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 8, 21

Thomas v. Rev. Bd.,

450 U.S. 707 (1981) .................................... 5, 10, 11, 12

Torcaso v. Watkins,

367 U.S. 488 (1961) .................................................... 13

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) .................................................... 14

United States v. Kuch,

288 F. Supp. 439 (D.D.C. 1968) ................................ 14

Watson v. Jones,

80 U.S. 679 (1872) ........................................................ 5

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................................... 13

Statutes & Other Authorities:

42 U.S.C. § 2000bb-1 ....................................................... 8

S. Ct. R. 10(a)................................................................... 4

S. Ct. R. 10(c) ................................................................... 4

Stephanie H. Barclay & Michalyn Steele,

Rethinking Protections for Indigenous

Sacred Sites, 134 Harv. L. Rev. 1294 (2021) .... 16, 17

Douglas Laycock, Formal, Substantive, and

Disaggregated Neutrality Toward Religion,

39 DePaul L. Rev. 993 (1990) ................................... 15

INTEREST OF AMICUS CURIAE 

The Religious Freedom Institute (“RFI”) is a nonprofit organization committed to securing religious freedom for everyone, everywhere. RFI works across faith

traditions and legal settings to protect the ability of individuals and communities to live lives of faith according to

conscience. RFI’s work has repeatedly emphasized three

principles directly implicated here: minority-faith exercise deserves equal protection; courts should not secondguess sincere religious obligations; and formally neutral

procedures cannot become devices for imposing substantial practical burdens on religion.

RFI has advanced those principles in cases involving

public prayer, religious land use, access to judicial remedies, and sacred sites. Across those contexts, the same

danger recurs: officials or courts may describe a burden

as modest because they can imagine a substitute practice, location, time, or procedure. But a substitute acceptable to government is not necessarily religiously

equivalent to the believer. The constitutional promise of

religious liberty would be thin indeed if protection depended on whether a judge already understood the practice at issue.

This case sits at the center of RFI’s institutional concerns. Petitioners are ceremonial leaders of the Lipan

Native American Church who maintain that ceremonies

inherited from their ancestors must occur at a particular

bend of the San Antonio River, with sacred trees and

nesting cormorants present. The City plans work that,



Rule 37 statement: All counsel of record were timely notified of the

intent to file this brief. No counsel for any party authored any part

of this brief, and nobody other than amici and counsel for amici

contributed monetarily to this brief’s preparation or submission.

(1)

according to petitioners, will permanently eliminate

those necessary conditions. The court of appeals nevertheless found no substantial burden in part because

other portions of the park remain accessible and birds

may nest elsewhere. RFI submits that the Court should

grant review to prevent substantial-burden doctrine

from becoming an inquiry into religious centrality, correctness, or substitutability.

SUMMARY OF ARGUMENT

I. Religious liberty protects pluralism only if it protects practices that officials and judges do not already

know. The familiar is easy to recognize as religious. The

unfamiliar is more vulnerable to being redescribed as

cultural preference, personal taste, or an optional means

of achieving a more general spiritual end. That is why

this Court has long distinguished permissible sincerity

inquiries from impermissible judgments about whether

a belief is reasonable, orthodox, central, or logically compelled.

The decision below crosses that line. Petitioners testified that the riverbend, the trees, and the cormorants

are not interchangeable ingredients but necessary components of ceremonies that cannot be performed elsewhere. Yet the court treated access to other parts of a

343-acre park and the possibility that cormorants might

relocate as reasons to find no substantial burden. That

reasoning does not merely measure the severity of governmental interference. It identifies a different religious

exercise—one at another place, under altered conditions—and declares it adequate.

II. The error matters beyond this case. Courts regularly confront substantial-burden questions under the

Free Exercise Clause, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized

Persons Act, and state analogues. 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, landbased, 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.

III. The tailoring issue independently warrants review. A least-restrictive-means analysis is not satisfied

by a lawyer’s after-the-fact ability to imagine why the

chosen course was sensible. It requires government to

demonstrate that less restrictive alternatives would not

achieve its compelling interests. Where officials had notice of a religious burden yet did not seriously evaluate

workable accommodations before acting, courts should

not permit litigation rationales to substitute for constitutional decision making.

IV. This case is a strong vehicle for review. The evidentiary record was developed at a preliminary-injunction hearing; sincerity was credited; the threatened injury is concrete and potentially irreversible; and the

competing approaches were squarely aired in multiple

panel opinions and a six-judge dissent from denial of rehearing en banc. Delay may allow the disputed project to

eliminate the very religious exercise for which petitioners seek protection.

ARGUMENT

The Court should grant certiorari in this case because it presents important questions about scrutiny of

religious practices and offers an ideal opportunity to

clarify the law on doctrines that persist in dividing courts

nationwide. See S. Ct. R. 10(a), (c). The Court should

clarify that courts may examine whether an asserted religious belief is sincerely held, but they may not redefine

the exercise that follows from that belief. Once sincerity

is established, the substantial-burden inquiry must assess the government’s interference with the religious exercise the claimant actually identifies—not with a substitute practice, place, or ritual that a court considers adequate.

Review is imperative for religious liberty because an

“objective necessity” test predictably disadvantages unfamiliar and minority faiths. It invites judges to treat familiar forms of worship as self-evidently religious while

discounting land-based, oral, communal, or otherwise

less familiar practices. A rule against theological substitution protects equal religious liberty without preventing

courts from testing sincerity, causation, or the severity

of the government’s interference.

Independently, review is warranted to define the

proper contours of strict scrutiny. Strict scrutiny must

require genuine consideration of less restrictive means.

Government may not carry that burden merely by offering post-hoc litigation rationales for a course selected

without meaningful attention to religious accommodation. When officials act with notice of a serious religious

burden, what alternatives they actually considered bears

directly on whether the chosen means were truly necessary.

Moreover, this case is an ideal vehicle to review the

questions presented. They recur across constitutional

and statutory religious-freedom cases, affect adherents

of many traditions, and are outcome-determinative at the

threshold of strict scrutiny. This case cleanly presents

those questions on a developed record, and the

threatened destruction of petitioners’ assertedly necessary ceremonial conditions makes review urgent.

I. Courts May Test Sincerity, But May Not Redefine

What a Sincere Religious Exercise Requires.

A. The distinction between sincerity and religious

truth is foundational. A court may ask whether a claimant honestly holds the asserted belief. That inquiry protects the legal system against sham claims without requiring courts to endorse theology. But once sincerity is

established, the court may not ask whether the belief is

sensible, whether the practice is mandatory according to

some external authority, or whether another practice

would serve the same spiritual purpose. See Thomas v.

Rev. Bd., 450 U.S. 707, 714–16 (1981); Burwell v. Hobby

Lobby Stores, Inc., 573 U.S. 682, 724–25 (2014).

That rule follows from institutional competence as

well as constitutional neutrality. Civil judges have neither warrant nor expertise to resolve questions of religious obligation. This principle is grounded in both practical judicial competence and the First Amendment’s Religion Clauses. From its earliest formulation in the nineteenth century through the most recent precedents, the

Court has repeatedly affirmed that the Constitution forbids civil courts from adjudicating religious doctrine, religious obligation, or ecclesiastical governance. See, e.g.,

Watson v. Jones, 80 U.S. 679, 729–34 (1872) (holding that

civil courts are not competent to resolve disputes of an

ecclesiastical nature within religious associations). “It is

not to be supposed that the judges of the civil courts can

be as competent in the ecclesiastical law and religious

faith of all these bodies as the ablest men in each are in

reference to their own.” Id. at 729.

Faith traditions locate authority in different

sources—texts, oral traditions, elders, conscience,

communal practice, revelation, sacred geography, or

combinations of them. A judicial test that expects a familiar hierarchy, written command, or universally observed rule would privilege some traditions over others.

The Court has consistently reinforced this principle, instructing that courts must take care to avoid “resolving

underlying controversies over religious doctrine,” Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull

Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969),

and that judges lack the “understanding and appreciation of the role played by every person who performs a

particular role in every religious tradition,” Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 757

(2020).

Where a dispute requires determining what a religion

requires of its adherents or officials, civil courts must abstain and defer to ecclesiastical decision-makers. For example, this Court has explained that “First Amendment

values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts

of controversies over religious doctrine and practice.”

Presbyterian Church, 393 U.S. at 449. The idea that a

civil magistrate is a “competent Judge of Religious

truth” was characterized, quoting James Madison, as “an

arrogant pretension” that has been “falsified.” Our Lady

of Guadalupe Sch., 591 U.S. at 763 (Thomas, J., concurring).

In Jones v. Wolf, 443 U.S. 595, 599–601 (1979), the

Court recognized that civil courts may, in limited circumstances, apply a neutral-principles-of-law approach—using objective, well-established principles of secular law

such as deeds, corporate charters, and state statutes—to

resolve disputes involving religious institutions. However, the Court made clear that this method is

permissible only when it does not require the civil court

to resolve underlying controversies over religious doctrine or obligation. Id. at 603–05. Whenever the neutralprinciples approach would compel a court to engage in

doctrinal analysis, the constitutional bar remains firmly

in place.

More recently, the Court in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission unanimously held that Wisconsin’s application

of a religious-employer exemption impermissibly differentiated among religions. 605 U.S. 238, 249–50 (2025).

Wisconsin had conditioned eligibility on theological

choices such as proselytizing or serving only co-religionists, which triggered strict scrutiny and failed narrow

tailoring. Id. at 251–52. Civil adjudication cannot turn on

assessments of inherently religious decisions about how

doctrine is expressed in charitable work, reflecting limits

on civil judges’ authority to resolve questions grounded

in religious obligation. Id. at 252. The Court characterized choices about how to “express and inculcate” religious doctrine as “fundamentally theological.” Id. In

their concurrences, Justice Thomas emphasized church

autonomy principles by stressing that religious institutions define their internal structures, id. at 255–70

(Thomas, J., concurring), and Justice Jackson cautioned

that inquiries focused on motivations risk intrusive probing into religious beliefs, id. at 270–79 (Jackson, J., concurring). These points collectively reinforce that civil

courts lack authority and institutional competence to

parse questions of religious obligation.

B. A substantial-burden inquiry may of course consider what government did and how severely it affected

the exercise the claimant identifies. It may ask whether

access was denied, conduct prohibited, benefits

conditioned, penalties threatened, or a necessary object

or place destroyed. RFRA, for instance, provides that

the “Government shall not substantially burden a person’s exercise of religion even if the burden results from

a rule of general applicability,” unless the government

“demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C.

§ 2000bb-1. RLUIPA applies the same standard to landuse regulations and institutionalized persons. Holt v.

Hobbs, 574 U.S. 352, 357–58 (2015). Both statutes were

enacted to provide greater protection for religious exercise than is available under the First Amendment alone.

Id. at 357; see also Fulton v. City of Philadelphia, 593

U.S. 522, 612 (2021) (Barrett, J., concurring) (“Both

RFRA and RLUIPA impose essentially the same requirements as Sherbert [v. Verner, 374 U.S. 398

(1963)].”); Hobby Lobby, 573 U.S. at 695 (“[RLUIPA] imposes the same general test as RFRA but on a more limited category of governmental actions.” (citation omitted)).

In Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418, 424–26 (2006), the Court addressed a religious sect’s challenge under RFRA to the

government’s prohibition on the sect’s sacramental use

of hoasca, a tea containing a controlled hallucinogen. The

Court held that the government bore the burden of

demonstrating a compelling interest in barring the specific sacramental use at issue and found that the government failed to satisfy that burden. Id. at 430–38. O Centro confirms that courts must engage in a genuine factual

assessment of whether governmental action forecloses

religious exercise.

And in Hobby Lobby, 573 U.S. at 726, the Court held

that the HHS contraceptive mandate substantially burdened the religious exercise of closely held for-profit corporations whose owners sincerely believed that providing certain contraceptive coverage made them complicit

in an immoral act. The Court examined the coercive financial consequences of noncompliance—penalties that

“could amount to $1.3 million per day or about $475 million per year”—and concluded: “If these consequences

do not amount to a substantial burden, it is hard to see

what would.” Id. at 691.

But the inquiry cannot change the object of analysis.

The question is not whether some religious activity remains possible; it is whether the challenged action materially interferes with the sincere exercise at issue. In

Holt, the Court held that RLUIPA’s substantial burden

inquiry “asks whether the government has substantially

burdened religious exercise (here, the growing of a ½inch beard), not whether the RLUIPA claimant is able to

engage in other forms of religious exercise.” 574 U.S. at

361–62. The Muslim prisoner’s religious exercise was

substantially burdened because prison policy forced him

to shave his beard, “conduct that seriously violate[d] his

religious beliefs.” Id. at 361 (cleaned up). The Court rejected the lower court’s reasoning that no substantial

burden existed because the prisoner had been provided

a prayer rug, religious materials, dietary accommodations, and holiday observances. Id. That approach, the

Court held, “improperly imported a strand of reasoning

from cases involving prisoners’ First Amendment

rights,” and “RLUIPA provides greater protection.” Id.

The severity of interference with the specific identified

practice—not the availability of other religious outlets—

is what the statute requires courts to assess.

The difference is decisive here. Petitioners do not assert a generalized interest in praying somewhere within

Brackenridge Park while observing any available birds.

They identify a ceremony at a specific riverbend whose

spiritual ecology includes particular trees and nesting

cormorants. If government action makes that ceremony

impossible, the fact that petitioners may pray elsewhere

answers a different question. One is not left free to exercise a right merely because another form of expression

remains available in another place.

C. The contrary approach is a disguised centrality

test. In Cutter v. Wilkinson, 544 U.S. 709, 714–17 (2005),

the Court upheld RLUIPA’s framework prohibiting the

government from imposing a substantial burden on religious exercise unless it demonstrates that the burden

furthers a compelling governmental interest through the

least restrictive means. The Court noted that RLUIPA

defines religious exercise broadly to include any exercise

of religion, whether or not compelled by or central to a

system of religious belief, thereby foreclosing judicial inquiries into the centrality or necessity of a particular

practice. Id. at 715, 725 n.13. The substantial burden inquiry must thus focus on the degree of governmental interference with the claimant’s identified religious exercise rather than on whether a court deems that exercise

objectively necessary or replaceable. Id. at 719–24.

A court that declares a substitute location or altered

ritual religiously sufficient necessarily decides which

features are essential and which are dispensable. In

Hobby Lobby, the Court reaffirmed the principle from

Thomas v. Review Board that “it is not for us to say that

the line [a claimant] drew was an unreasonable one.”

Hobby Lobby, 573 U.S. at 725. A court’s “narrow function” in this context should be only to determine

“whether the line drawn reflects an honest conviction.”

Id. (citation omitted).

Merely labeling the inquiry “objective” does not

change its character. The supposed objectivity comes

from a secular observer’s assessment of religious necessity—the very judgment the Religion Clauses prohibit

civil authorities from making. As this Court explained in

Thomas, “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious

faith, or where it denies such a benefit because of conduct

mandated by religious belief, thereby putting substantial

pressure on an adherent to modify his behavior and to

violate his beliefs, a burden upon religion exists.” 450

U.S. at 717–18. This formulation is keyed entirely to the

claimant’s own religious understanding—not to what a

neutral, secular observer would consider religiously necessary.

Nor is such second-guessing needed to avoid limitless

claims. Sincerity remains a real threshold. The claimant

must identify religious exercise and establish a causal

connection between governmental action and a serious

interference with that exercise. See, e.g., Holt, 574 U.S.

352; Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 525–

26 (2022). The government may contest facts, prove that

the challenged action does not cause the alleged injury,

or satisfy the applicable level of scrutiny. “Once a plaintiff makes such a showing, the burden flips and the government must demonstrate that imposition of the burden

on that person is the least restrictive means of furthering

a compelling governmental interest.” Ramirez v. Collier,

595 U.S. 411, 425 (2022) (cleaned up). Those ordinary

safeguards work without inviting theological revision.

D. The decision below illustrates the doctrinal instability the petition identifies. Some courts treat the believer’s sincere account of what the exercise requires as

the premise for assessing a burden on religion. Pet. 20–

21. Others employ formulations that permit external

judgments about whether the interference claimed does

not match the “accuracy of a religious belief” or is too

“attenuated.” Pet. 18–22 (citation omitted). Those verbal

differences produce concrete consequences when government destroys or denies access to something the

claimant regards as religiously indispensable. The Court

should grant review and make clear that civil courts evaluate interference, not theology.

II. An

Objective-Necessity

Test

Predictably

Disadvantages Unfamiliar and Minority Faiths.

A. Religious liberty is tested at the margins of familiarity. When a practice resembles one judges have seen

in their own communities, its religious significance may

seem intuitive. A sanctuary, a weekly service, a prescribed garment, or a written dietary rule may fit an existing legal vocabulary. But constitutional protection

cannot depend on resemblance to a majority tradition.

Sacred places, seasonal rites, relationships with animals,

and ceremonies embedded in a landscape are no less religious because they are less familiar to a civil tribunal.

American law has repeatedly encountered the danger

of measuring minority practices against majoritarian expectations. E.g., Thomas, 450 U.S. at 714. The Court explained that “the resolution of [what constitutes a religious belief or practice] is not to turn upon a judicial perception of the particular belief or practice in question;

religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit

First Amendment protection.” Id.

This Court has extended Thomas’s logic, explaining

that it is irrelevant whether a person is a member of an

organized church, official denomination, or recognized

sect. Frazee v. Ill. Dept. of Emp. Sec., 489 U.S. 829, 832–

34 (1989). While “membership in an organized religious

denomination, especially one with a specific tenet [governing the belief or conduct in question], would simplify

the problem of identifying sincerely held religious beliefs,” the Free Exercise Clause does not protect only

those who belong to particular organizations. Id. at 384.

Indeed, the Court’s precedents hold the First Amendment prevents favor for “those religions based on a belief

in the existence of God as against those religions founded

on different beliefs.” Torcaso v. Watkins, 367 U.S. 488,

495 (1961).

In Wisconsin v. Yoder, the Court squarely confronted the risk of imposing majority cultural and religious expectations on a minority faith community. Upholding the rights of Old Order Amish families against

compulsory education laws, the Court declared: “There

can be no assumption that today’s majority is ‘right’ and

the Amish and others like them are ‘wrong.’ A way of life

that is odd or even erratic but interferes with no rights

or interests of others is not to be condemned because it

is different.” 406 U.S. 205, 223–24 (1972). The Court further warned that “forced migration of religious minorities was an evil that lay at the heart of the Religion

Clauses,” signaling that constitutional protections exist

precisely to insulate minority faiths from majoritarian

pressure. Id. at 218 n.9.

In Lyng v. Northwest Indian Cemetery Protective

Association, 485 U.S. 439, 457 (1988), the majority cautioned against a judicial test that would require courts to

evaluate which practices are “central” or “indispensable”

to a religion, warning that such an approach would lead

to courts “holding that some sincerely held religious beliefs and practices are not ‘central’ to certain religions,

despite protestations to the contrary from the religious

objectors.” The majority characterized such an approach

as one that “would require us to rule that some religious

adherents misunderstand their own religious beliefs,” a

role the Court declared “cannot be squared with the Constitution or with our precedents.” Id. at 457–58. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582

U.S. 449, 460 (2017), the Court clarified that the absence

of a free exercise violation in Lyng turned on the fact that

the government’s conduct did not coerce individuals into

violating their religious beliefs and did not deny them an

equal share of rights enjoyed by other citizens.

The Circuit Courts have been sensitive to this issue

as well. See, e.g., Africa v. Pennsylvania, 662 F.2d 1025,

1031 (3rd Cir. 1981) (“[W]e must avoid any predisposition

toward conventional religions so that unfamiliar faiths

are not branded mere secular beliefs. ‘Religions now accepted were persecuted, unpopular and condemned at

their inception.’” (quoting United States v. Kuch, 288 F.

Supp. 439, 443 (D.D.C. 1968)). But those courts have not

always done so consistently. See, e.g., Navajo Nation v.

U.S. Forest Serv., 535 F.3d 1058, 1096–97 (9th Cir. 2008)

(Fletcher, J., dissenting) (arguing that the majority may

have treated a Judeo-Christian faith differently from the

Native American religion at issue).

Properly applied, this principle directly forecloses

any inquiry into whether a minority religious practice

matches what a majority would recognize as legitimate

religion. The Court has reaffirmed this formulation consistently, including in Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520 (1993), and Fulton

v. City of Philadelphia, 593 U.S. 522 (2021).

Rules framed without reference to religion may still

fall especially hard on communities whose worship is

public, time-sensitive, place-specific, communal, or dependent on physical conditions. Equal liberty therefore

requires attention to practical effects, not confidence

that an alternative imagined by government is adequate.

Commentators have argued that “substantive neutrality” mandates the government “minimize the extent to

which it either encourages or discourages religious . . .

practice or nonpractice.” Douglas Laycock, Formal,

Substantive, and Disaggregated Neutrality Toward Religion, 39 DEPAUL L. REV. 993, 1001 (1990). Without

thinking carefully about the precise ways governmental

action might, as in this case, discourage religion—and

the ways alternative actions might less discourage religion—“we will tend to select our baselines by intuition,

and we will give free rein to our political preferences and

our prejudices.” Id. at 1006. That consideration necessarily looks to practical effects on the faith and practice

in question, not merely to abstract forms of religious

practice informed by one’s own, or the majority’s, experience.

B. Indigenous religious exercise makes the danger

especially visible. For many land-based traditions, place

is not merely a convenient venue for worship. The place,

its natural features, and the relationships sustained

there may be part of the exercise itself. Destruction of

the site cannot be answered by pointing to acreage elsewhere. As Justice Gorsuch recently observed, Native religious practices may be unfamiliar to many, and that unfamiliarity cannot justify lesser protection. Apache

Stronghold v. United States, 145 S. Ct. 1480, 1489 (2025)

(Gorsuch, J., dissenting from denial of certiorari).

Native Americans, all too often “divested of their traditional homelands,” have found themselves “beholden to

the government to engage in centuries-old practices and

ceremonies.” Stephanie H. Barclay & Michalyn Steele,

Rethinking Protections for Indigenous Sacred Sites, 134

HARV. L. REV. 1294, 1297 (2021). The resulting problems

“stem[] in significant part from government misunderstanding of Indigenous people’s unique spiritual traditions.” Id. at 1298. And even courts have noted the “distinctive qualities of Indigenous religious practices regarding sacred sites” as “an excuse to deny traditional

protections for religious exercise.” Id. at 1298–99. Sacred

sites are not unique to Indigenous practice—for example, consider the Western Wall’s importance to Judaism—but many nonnatives may fail to appreciate that

“[w]ithout access to particular sites, essential practice of

native religion may be effectively prohibited altogether.”

Id. at 1304–05. Thus, while the Western Wall is considered to be particularly sacred, a Jewish person can pray

anywhere; but Native American practices “must be performed in [specific] places or the essential rites and the

animating beliefs behind the rites are, by compulsion, extinguished.” Id. at 1305. “There is no adequate substitute

and no adequate compensation for the deprivation,” because “belief is inseparable from the integrity of and access to the place.” Id. at 1305–06.

Unfortunately, Native American land-based religious

practices, like many aspects of Indian culture and heritage, have been the subject of brutal oppression. Religious ceremonies, burial practices, and even features of

native personal appearance have been banned and heavily regulated, and spiritual leaders and practitioners persecuted. Id. at 1307–08. What’s worse in this context, the

United States effectuated the systematic displacement

of Native Americans from their homelands and their sacred sites. Id. at 1310–12. That history has resulted in

“catastrophic consequences for the religious liberty

interests of tribal people.” Id. at 1312. According to the

“Western property paradigm,” land is essentially fungible and can be reduced to an economic value. Id. at 1312–

13. But as the above discussion makes clear, that is not

true for Indigenous cultures. Id. As in this case, irreplaceable sacred sites across the Nation are under government ownership and control as a direct result of governmental oppression of native peoples.

The historical context reinforces the need for a clear

rule. Native American religious practices have often

been suppressed, displaced, or treated as obstacles to

land management. A doctrine that lets courts decide that

another site is spiritually equivalent reproduces the

same structural mistake in modern language: government defines the practice at a level of generality that

makes its own interference disappear.

C. The problem is not limited to indigenous traditions. Orthodox Jewish observance may depend on time,

place, physical boundaries, or the availability of particular facilities. For example, Jewish law requires the recitation of blessings before and after eating and drinking.

There are numerous other situations where observant

Jews may make a contemporaneous blessing, including

upon seeing a rainbow or lightning, or upon hearing

thunder. Muslim prayer may be visible, scheduled, and

oriented. Sikh practice may involve articles of faith unfamiliar to officials. Small congregations may require land

uses that zoning authorities view as interchangeable with

secular assembly. Prisoners and institutionalized persons may depend on specific foods, grooming practices,

objects, or communal rites. In each setting, the temptation to offer a secularly plausible substitute is strong.

A rule against theological substitution treats all of

those claims evenhandedly. It does not guarantee

victory. It fixes the proper baseline for analysis: the

claimant’s sincere religious exercise as the claimant understands it. Government then receives a full opportunity to contest causation, severity, and—where applicable—to justify the burden under strict scrutiny. Neutrality is preserved because the court never ranks the intelligibility of competing faiths.

III. Strict Scrutiny Requires Contemporaneous,

Genuine

Consideration

Less-Restrictive

Alternatives.

A. The least-restrictive-means requirement is demanding by design. Government must do more than

identify important ends and show that its chosen means

are rationally related to them. It must establish that

those interests cannot be achieved through a less burdensome course. See Holt, 574 U.S. at 364–65. That

showing ordinarily requires engagement with proposed

alternatives rather than categorical dismissal or posthoc reconstruction.

In Mirabelli v. Bonta, 607 U.S. 492, 497 (2026), for

example, this Court recently concluded that parents

challenging state policies restricting parental notification about a child’s gender identity were likely to succeed

on Free Exercise grounds. The Court determined that

although the state asserted interests in student safety

and privacy, the policies were not narrowly tailored and

could instead accommodate religious objections while

still protecting students by, for example, precluding disclosure to parents who would engage in abuse and enforcing child-abuse laws. Id.

Where officials know that a project threatens religious exercise, advance consideration serves a constitutional function. It forces the decisionmaker to identify

the precise public interest, examine whether all

burdensome features are necessary, consult affected

practitioners, and create a record explaining why accommodations would fail. That process is especially important for minority religions, whose burdens may otherwise remain invisible until litigation.

B. The principle resembles the familiar rule that

agency action must be judged on the grounds the agency

invoked when it acted. SEC v. Chenery Corp., 318 U.S.

80, 87 (1943). The analogy is not exact, but the underlying

discipline is relevant. Courts cannot reliably determine

whether government selected the least restrictive means

if counsel may supply new reasons, new factual premises,

or newly discovered alternatives after suit begins. Litigation ingenuity is not a substitute for governmental tailoring.

In Chenery, the Court explained that when a determination of policy or judgment is “entrusted to an administrative agency,” “a judicial judgment cannot be made

to do service for an administrative judgment.” Id. at 88.

Thus, when an administrative agency announces the basis on which it has made a decision or the principles that

informed its judgment, it is not for the courts to second

guess that basis, only to determine whether that basis or

those principles demand the outcome the agency

reached. Id. at 88–89.

The reasoning extends to the instant context if the

government is to be held accountable for actually considering alternatives once on notice of potential burden to

religious exercise. For instance, cases after Chenery explained that “an agency’s discretionary order may be upheld only on the same basis articulated in the order by

the agency itself.” E.g., Calcutt v. FDIC, 598 U.S. 623,

624 (2023) (cleaned up). Agencies must conduct and supply a “reasoned analysis” for their decisions lest they be

deemed arbitrary and capricious, and the extent of the

analysis required may vary according to the context. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983). These

rules ensure that officials are held to their duty to consider the consequences of proposed actions. Analogously,

a government like the one at issue here should be expected to conduct a genuine, reasoned analysis of the alternatives available to minimize burden on religious exercise.

These principles do not impose a free-standing administrative-procedure code on every public project.

They simply give evidentiary significance to what government actually considered. A contemporaneous record

of consultation, alternatives analysis, and reasoned rejection may strongly support the government. An admission that no workable alternative was considered despite

notice of a severe burden cuts the other way. Strict scrutiny should not reward avoidable ignorance.

C. The point is consequential in public-land and infrastructure disputes. Government often has legitimate interests in safety, preservation, accessibility, environmental management, and compliance with other law.

Lukumi reinforced this by holding that, while the government may pursue legitimate interests through neutral laws of general applicability, it “cannot in a selective

manner impose burdens only on conduct motivated by

religious belief”—meaning that laws targeting religious

practice must satisfy strict scrutiny regardless of the legitimacy of the underlying interest. 508 U.S. at 543.

But projects also present choices about scope, sequencing, design, methods, timing, and mitigation.

Least-restrictive-means review asks whether those

choices were made with the religious burden in view and

whether narrower options would achieve the same concrete objectives. Both statutes prohibit the government

from substantially burdening religious exercise unless it

demonstrates that the burden furthers a compelling governmental interest through the least restrictive means.

The Court confirmed in O Centro, that RFRA “expressly

adopted the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder,” requiring “an inquiry more focused than the Government’s categorical

approach”—the government must demonstrate that its

compelling interest is satisfied “through application of

the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” 546 U.S. at 430–31 (cleaned up).

Petitioners allege that the City failed to consider

workable alternatives before litigation despite notice

that tree removal and rookery-management measures

would destroy the conditions necessary for their ceremonies. As petitioners explain (at 11–13), that allegation is

borne out by the record. Permitting the City to prevail

through later rationales would invert strict scrutiny. The

government would receive deference precisely because it

failed to examine accommodation when accommodation

could still shape the project. As Hobby Lobby teaches,

courts must “look beyond broadly formulated interests”

and scrutinize “the asserted harm of granting specific exemptions to particular religious claimants.” 573 U.S. at

726–27 (cleaned up). Likewise, in Ramirez v. Collier, the

Court reaffirmed that under RLUIPA, the government

must demonstrate that the compelling-interest test is

satisfied through application of the challenged law to the

particular claimant whose sincere religious exercise is

being substantially burdened. 595 U.S. at 429–33.

Broadly formulated governmental interests are insufficient to discharge this burden.

This means that although safety, preservation, environmental management, and legal compliance are recognized as valid and potentially compelling government interests, they do not automatically defeat a RFRA or

RLUIPA claim. Each must be established as compelling

in the specific context and addressed through narrowly

tailored, least restrictive means.

IV. The Questions Presented Are Important,

Recurring, and Cleanly Presented.

A. The substantial-burden and least-restrictivemeans questions recur across constitutional and statutory regimes. The operative phrases appear in federal

and state religious-freedom laws, and courts regularly

confront disputes over land use, prison rules, public employment, education, licensing, benefits, health regulation, and access to public space. See Pet. 20–34. Without

guidance, outcomes will continue to turn on whether a

court treats the believer’s understanding as the premise

of analysis or as a proposition open to external correction.

The issue is also exceptionally important because an

erroneous standard distorts every later stage of review.

If a court defines the religious exercise too generally, a

profound burden appears slight or nonexistent, and the

government never bears the obligation to justify its action. That result flouts this Court’s admonition in cases

like Hobby Lobby, that courts must “look beyond broadly

formulated interests” and scrutinize “the asserted harm

of granting specific exemptions to particular religious

claimants.” 573 U.S. at 726–27 (cleaned up). The threshold inquiry thus determines whether strict scrutiny occurs at all.

B. This case cleanly presents the issue. Petitioners’

sincerity was not rejected. The relevant conditions are

concrete: a particular riverbend, trees, and nesting cormorants. The court of appeals’ alternative-location reasoning is explicit. Pet. App. 157a–158a. And dissenting

judges directly explained why the availability of other

land or birds elsewhere does not answer the religious

question petitioners presented. E.g., Pet. App. 118a–

119a.

The procedural posture is a virtue, not an obstacle.

The district court held an evidentiary preliminary-injunction hearing, and the Fifth Circuit considered the

dispute repeatedly, including after guidance from the

Supreme Court of Texas. Six judges voted for rehearing

en banc. Pet. App. 54a. The record and opinions give this

Court a focused basis to decide the governing standard

while meaningful relief may still be possible.

C. Review is urgent. Petitioners explain that the

City’s project will permanently destroy necessary components of ceremonies practiced at the site for generations. Pet. App. 514a. If the work proceeds, a later merits

judgment may come too late. Certiorari is warranted

where a disputed rule threatens irreparable loss of religious exercise and where delay risks mooting the practical value of constitutional protection.

CONCLUSION

The Court should grant a writ of certiorari and reverse the judgment of the court of appeals.

Respectfully submitted.

AUGUST 2026