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

No. 26-15

IN THE

Supreme Court of the United States

__________

GARY PEREZ AND MATILDE TORRES,

Petitioners,

v.

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 AMICI CURIAE

THE SIKH COALITION, SOUTH ASIAN

AMERICAN JUSTICE COLLABORATIVE,

NATIONAL COUNCIL OF JEWISH WOMEN,

UNITED SIKHS, AND HINDUS FOR HUMAN

RIGHTS IN SUPPORT OF PETITIONERS

__________

ANDREW R. SPERL

August 31, 2026

Counsel of Record

DUANE MORRIS LLP

30 South 17th Street

Philadelphia, PA 19103

(215) 979-1000

ARSperl@duanemorris.com

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT................................................................ 6

I. Nearly every court of appeals to consider the

question holds that preventing a religious

exercise substantially burdens that exercise. ....... 6

II. Specific religious practice may be completely

prohibited despite an inadequate substitute. ....... 9

A. Specific forms of religious exercise are not

interchangeable. ............................................... 9

B. Location and space are integral to many forms

of religious exercise. ....................................... 13

III.Minority faiths are particularly vulnerable to

a rule that allows judicial interpretation of

their beliefs........................................................... 15

A. Courts are less likely to appreciate the

significance of minority religious practice. .... 15

B. Judicial

confusion

mirrors

community

misunderstanding, especially in land use

decisions. ......................................................... 17

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Ackerman v. Washington

16 F.4th 170 (6th Cir. 2021) ................................ 10

Alsyrawan v. Dep’t of Human Services

316 A.3d 1076 (Pa. Commw. Ct. 2024) ................ 13

Apache Stronghold v. United States

101 F.4th 1036 (9th Cir. 2024) ....................... 4, 7-8

Apache Stronghold v. United States

145 S. Ct. 1480 (2025) (Gorsuch, J., dissenting

from denial of certiorari) ................................. 4, 7-8

Barr v. City of Sinton

295 S.W.3d 287 (Tex. 2009) ................................. 11

Burwell v. Hobby Lobby Stores, Inc.

573 U.S. 682 (2014) ........................................ 12, 15

Cavin v. Mich. Dep’t of Corr.

927 F.3d 455 (6th Cir. 2021) ................................ 10

Cutter v. Wilkinson

544 U.S. 709 (2005) ................................................ 9

Davis v. Wigen

82 F.4th 204 (3d Cir. 2023) .................................... 7

Greene v. Solano County Jail

513 F.3d 982 (9th Cir. 2008) .............................. 7, 9

iii

Guru Gobind Singh Sikh Center, Inc. v. Town of

Oyster Bay, N.Y.

No. 2:16-cv-03600 (E.D.N.Y. June 29, 2016) ....... 19

Guru Nanak Sikh Society v. County of Sutter

456 F.3d 978 (9th Cir. 2006) ........................... 19-20

Haight v. Thompson

763 F.3d 554 (6th Cir. 2014) .............................. 4, 6

Holt v. Hobbs

574 U.S. 352 (2015) .............................................. 10

Lyng v. Northwest Indian Cemetery Protective

Association

485 U.S. 439 (1988) ................................................ 8

McCurry v. Tesch

738 F.2d 271 (8th Cir. 1984) ................................ 17

Merced v. Kasson

577 F.3d 378 (5th Cir. 2009) ........................... 10-11

Midrash Sephardi, Inc. v. Town of Surfside

366 F.3d 1214 (11th Cir. 2004) .............................. 7

Real Alternatives, Inc. v. Sec’y Dept’ of Health &

Hum. Servs.

867 F.3d 338 (3d Cir. 2017) ............................ 11-12

Spratt v. Rhode Island Department of Corrections

482 F.3d 33 (1st Cir. 2007) .................................... 7

Tagore v. United States

735 F.3d 324 (5th Cir. 2013) ................................ 16

iv

Thai Meditation Association of Alabama, Inc. v. City

of Mobile

980 F.3d 821 (11th Cir. 2020) ................................ 7

Thomas v. Review Board of Indiana Employment

Security Division

450 U.S. 707 (1981) .............................................. 16

Yellowbear v. Lampert

741 F.3d 48 (10th Cir. 2014) (Gorsuch, J.) ............ 6

STATUTES

42 U.S.C. § 2000bb-2(4) ............................................... 9

42 U.S.C. § 2000cc-5(7)(A)........................................... 9

Religious Freedom Restoration Act, 42 U.S.C. §

2000bb, et seq. .............................................. 4, 9, 12

Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. § 2000cc, et seq. ............... 4, 9-10, 18

OTHER AUTHORITIES

Brian J. Miller, Religious Freedom and Local

Conflict: Religious Buildings and Zoning Issues in

the New York City Region, 1992–2017, 81

Sociology of Religion 462 (2020) .......................... 18

Chris Fuchs, Sikh Congregation, Town Settle

Lawsuit over Stopped Temple Construction,

nbcnews.com (Nov. 17, 2016) ............................... 19

Daryl Matthews, Orange County Commissioners Vote

Down “Temple on Hempel,” WFTV.com (Jan. 24,

2024) ..................................................................... 20

v

Eliska Schnabel, Public Resistance to New Houses of

Worship, 9 J. Race Ethnicity & Politics 642 (2024)

.............................................................................. 17

Exec. Order No. 13,007, 61 Fed. Reg. 26,771 (May 29,

1996) ..................................................................... 13

Jaideep Singh, “No Sikh Jose”: Sikh American

Community Mobilization and Interracial

Coalition Building in the Construction of a Sacred

Site, 8 Asian Pac. Am. L.J. 173 (2002) ................ 19

Mark K. DeSantis, Mariel J. Murray & Whitney K.

Novak, Congressional Research Service,

Indigenous Sacred Sites: Overview and Issues for

Congress (Mar. 14, 2025) ..................................... 14

Michelle Meredith, Orange County's Rejection of

Temple Construction Causes Disappointment

Among Hindu Members, WESH.com (Jan. 24,

2024) ..................................................................... 21

Shampa Mazumdar & Sanjoy Mazumdar, Religion

and Place Attachment: A Study of Sacred Places,

24 J. Env't Psych. 385 (2004).......................... 14-15

Sup. Ct. R. 37.2 ............................................................ 1

Sup. Ct. R. 37.6 ............................................................ 1

U.S. Dep't of Agriculture, Office of Tribal Relations &

U.S. Forest Service, USDA Policy and Procedures

Review and Recommendations: Indian Sacred

Sites (Dec. 2012) ................................................... 14

vi

U.S. Dep’t of Justice, Report on the Twentieth

Anniversary of the Religious Land Use and

Institutionalized Persons Act (Sept. 22, 2020) .... 18

U.S. Dep't of Justice, Update on the Justice

Department's Enforcement of the Religious Land

Use and Institutionalized Persons Act: 2010–2016

(July 2016) ............................................................ 18

Victoria Saha, Hindu Leaders Using Henderson

Land for Worship Despite Ordinance Blocking

Temple, fox5vegas.com (Nov. 19, 2024) ............... 20

Victoria Saha, Religious Leaders Accuse Henderson

Officials of Discrimination, Blocking Hindu

Temple, fox5vegas.com (May 6, 2024) ................. 20

1

INTEREST OF AMICI CURIAE1

The Sikh Coalition is a nonprofit and nonpartisan

organization dedicated to ensuring that members of

the Sikh community in America are able to practice

their faith. It defends the civil rights and civil liberties

of Sikhs by providing direct legal services and advocating for legislative change, educating the public

about Sikhs and diversity, promoting local community

empowerment, and fostering civic engagement

amongst Sikh Americans. The organization also educates community members about their legally recognized free-exercise rights and works with public agencies and officials to implement policies that accommodate their deeply held beliefs. The Sikh Coalition owes

its existence in large part to the effort to combat uninformed discrimination against Sikh Americans after

September 11, 2001.

The South Asian American Justice Collaborative

(SAAJCO) is a national nonprofit organization that

fights for the civil and human rights of the South

Asian diaspora in the United States through legal advocacy, community engagement, and narrative power.

SAAJCO’s communities encompass diverse faith traditions, including Sikhism, Hinduism, Islam, Christianity, Jainism, Buddhism, and Judaism. Because re-

1 Amici certify that counsel of record for all parties were notified

of their intention to file this amicus brief at least 10 days prior

to the due date for this amicus brief. Sup. Ct. R. 37.2. Amici also

certify that no counsel for any party authored this brief in whole

or in part, no party or party’s counsel made a monetary contribution to fund its preparation or submission, and no person other

than Amici or their counsel made such a monetary contribution.

Sup. Ct. R. 37.6.

2

ligious identity is often intertwined with the racialization and treatment of South Asians in the United

States, SAAJCO has a strong interest in ensuring that

federal civil-rights protections are interpreted consistently and effectively. That interest is especially significant in the land-use context, where unfamiliarity

with minority faiths, their practices, and their houses

of worship can contribute to discriminatory decisionmaking. SAAJCO joins this brief to underscore the importance of a clear and robust application of the Religious Land Use and Institutionalized Persons Act’s

protections to minority-faith communities.

UNITED SIKHS is an international nonprofit United Nations civil society organization that

advances civil and human rights through humanitarian aid, legal advocacy, and public education, with

particular expertise in protecting the religious rights

of Sikhs and other minority faith communities

through its International Civil & Human Rights Advocacy (ICHRA) Justice Center. After decades of representing individuals whose sincerely held religious

practices have been misunderstood or denied by government officials and courts, UNITED SIKHS has

witnessed how religious practices are often dismissed

and not recognized as essential acts of religious exercise. UNITED SIKHS has a strong interest in this

case because the Fifth Circuit's conclusion that Petitioners suffered no substantial burden after the destruction of the specific trees and nesting cormorants

essential to their ceremony reflects the same outsider

judgment that has historically disadvantaged minority faiths by treating indispensable religious requirements as interchangeable with inadequate substitutes.

3

National Council of Jewish Women (NCJW) is a

133-year-old Jewish feminist civil rights organization

working for equity and justice for women, children,

and families in the United States and Israel. Through

the efforts of its 250,000 grassroots advocates and 44

local sections, NCJW works to effect lasting social

change at the local, state, and national level and focuses our advocacy efforts on demanding reproductive

freedom, advancing economic opportunity, safeguarding civil rights, and fostering safer communities.

NCJW approaches its work through the intersections

of gender, economic, and racial justice to center those

most impacted in a uniquely Jewish way.

Hindus for Human Rights (HfHR) is a national

nonprofit that opposes Hindu nationalism and stands

against all forms of oppression. As Hindus, we stand

alongside our South Asian brothers and sisters to support members of the Lipan Native American Church

in their right to protect their site of worship, and to

their right to profess their faith as they always have.

Institutionalized discrimination can cause unforgettable harm to communities. Hindus, Muslims, Sikhs,

Jains, Christians, and other South Asians who have

endured decades of racialization as minorities know

this painfully well. We urge the courts to enforce a

democratic and secular reading of the RLUIPA to

strengthen the inclusive resolve of this country's democracy.

*

*

*

4

Amici work to educate officials and courts about

religious practices that may be unfamiliar to them. A

different practice, object, or location that looks adequate to an outsider may not be a real substitute for a

challenged religious practice. Amici submit this brief

to explain why a believer’s religious exercise is substantially burdened whenever that specific exercise is

restricted. Allowing courts to determine when a substitute form of worship is sufficient is especially harmful to adherents of minority faiths, whose forms of religious exercise are less familiar to and less understood by judicial decisionmakers.

SUMMARY OF ARGUMENT

When the government prevents a religious exercise altogether, it substantially burdens that exercise.

“As Chief Judge Sutton has succinctly put it, ‘[t]he

greater restriction (barring access to the practice) includes the lesser one (substantially burdening the

practice).’” Apache Stronghold v. United States, 145 S.

Ct. 1480, 1488 (2025) (Gorsuch, J., dissenting from denial of certiorari) (quoting Haight v. Thompson, 763

F.3d 554, 565 (6th Cir. 2014)). Nearly every court of

appeals so holds, under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., or the

Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. § 2000cc et seq. Although the

Ninth Circuit departed from that consensus in Apache

Stronghold v. United States, 101 F.4th 1036 (9th Cir.

2024) (en banc), Justice Gorsuch, joined by Justice

Thomas, accurately described the Ninth Circuit’s view

as an “outlier.” 145 S. Ct. at 1488 (dissenting from denial of certiorari).

5

Implicit in deciding whether a religious exercise

has been completely prohibited (and therefore substantially burdened) is a judgment about the essentials of that exercise. In particular, a suggested alternative to a particular religious practice may be no alternative at all according to the believer’s faith. In

that circumstance, the exercise at issue is still completely prohibited, despite the existence of an inadequate substitute.

Here, the district court and the Fifth Circuit

wrongly substituted their judgment about the essentials of Petitioners’ worship. The Petitioners made

clear that “certain religious ceremonies cannot be

properly administered without specific trees present

and cormorants nesting,” Pet. App’x at 4a, and the sincerity of that belief is not in doubt. Yet the Fifth Circuit held that removing those trees and driving off

those birds would impose no substantial burden on

Petitioners’ religion, because Petitioners “continue to

have virtually unlimited access to the Park for religious and cultural purposes” and the cormorants may

nest “nearby or elsewhere in the 343-acre Park.” Id. at

18-19a.

What the court failed to recognize is that the City’s

suggested alternative is no alternative at all, and that

its restrictions have the effect of prohibiting the Petitioners’ religious exercise in its entirety. Its analysis

changed the question from whether the particular exercise would survive to whether some religious activity could continue in roughly the same area.

The Fifth Circuit’s substitution of its own judgment about the Petitioners’ religious beliefs has particular risks for members of minority faiths. Courts

are less likely to recognize the importance of a unique

6

form of religious exercise when it involves an unfamiliar faith. But the legal protection of an exercise cannot

depend on how readily an outsider appreciates the significance of its elements.

This Court should grant review to make clear that

a court cannot overlook the substantial burden that is

imposed when a religious believer is entirely prevented from engaging in a specific form of religious

practice, notwithstanding the availability of an inadequate substitute. When courts substitute their own

judgment about a religious practice for that of the religion’s adherents, it undermines the law’s protection

of religious exercise for those who need it most.

ARGUMENT

I.

Nearly every court of appeals to consider

the question holds that preventing a religious

exercise substantially burdens that exercise.

Courts broadly recognize that completely barring

a religious practice is the paradigmatic substantial

burden.

When Kentucky denied Native American inmates

access to traditional foods for a religious celebration,

the Sixth Circuit reasoned without difficulty that

“[t]he greater restriction (barring access to the practice) includes the lesser one (substantially burdening

the practice).” Haight, 763 F.3d at 565. The Tenth Circuit holds that a burden is substantial when, among

other things, the government “prevents the plaintiff

from participating in an activity motivated by a sincerely held religious belief”—there, denial of access to

a sweat lodge. Yellowbear v. Lampert, 741 F.3d 48,

55–56 (10th Cir. 2014) (Gorsuch, J.). The Eleventh

Circuit holds that religious exercise is “‘substantially

7

burdened’ if a regulation completely prevents the individual from engaging in religiously mandated activity.” Thai Meditation Association of Alabama, Inc. v.

City of Mobile, 980 F.3d 821, 829–30 (11th Cir. 2020)

(quoting Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 (11th Cir. 2004)). The Third Circuit agrees: “[t]here can hardly be a more substantial

burden on a religious practice or exercise than its outright prohibition.” Davis v. Wigen, 82 F.4th 204, 212

(3d Cir. 2023). So does the Ninth Circuit itself, outside

the exception it carved out in Apache Stronghold.

“[A]n outright ban on a particular religious exercise is

a substantial burden on that religious exercise.”

Greene v. Solano County Jail, 513 F.3d 982, 988 (9th

Cir. 2008); accord Spratt v. Rhode Island Department

of Corrections, 482 F.3d 33, 38 (1st Cir. 2007) (total

ban on inmate preaching).

In its “outlier” opinion, the Ninth Circuit has held

that even the permanent destruction of a religious

site, and the prevention of worship at that site, is not

a substantial burden. Apache Stronghold involved the

planned transfer of Oak Flat, an ancient Apache sacred site, to a mining company whose operations will

leave “a crater perhaps 1,000 feet deep and nearly two

miles wide” where ceremonies that can occur nowhere

else have been performed for centuries. 145 S. Ct. at

1480 (Gorsuch, J., dissenting from denial of certiorari).

The Ninth Circuit acknowledged the general rule

that “preventing access to religious exercise is an example of substantial burden.” Apache Stronghold v.

United States, 101 F.4th 1036, 1043 (9th Cir. 2024).

Yet a six-to-five majority carved out an exception for

“disposition[s]” of government real property, reason-

8

ing from Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), that only coercion or discrimination constitutes a substantial burden in that setting. Id. at 1044. Of course, Lyng is distinguishable from cases like this one in that it involved land used by the government for its internal

purposes, rather than land specifically designed and

intended for public use where the government’s modifications to that land will directly affect the public

that uses it.

This Court denied review of the Ninth Circuit’s decision over Justice Gorsuch’s dissent, which explained

that “one court after another has held that preventing

a religious exercise is, necessarily, a ‘substantial burden’ on that religious exercise,” and that the Ninth

Circuit’s contrary rule “stands as an outlier.” 145 S.

Ct. at 1488. The consequences of the Ninth Circuit’s

outlier rule are not hypothetical. After Apache Stronghold, the National Park Service invoked the Ninth

Circuit’s reasoning to deny the Knights of Columbus

permission for a Memorial Day Mass they had celebrated for sixty years, arguing that the Knights suffered “no burden” from the denial. 145 S. Ct. at 1488–

89.

As described below, the Fifth Circuit in this case is

also on the wrong side of judicial consensus, having

effectively determined that the complete prohibition

of a specific religious exercise is not a substantial burden. It did so by mistakenly relying on proffered alternatives to the practice at issue. As Petitioners explain,

the Court should accept review to make clear that the

substantial burden inquiry must be directed to the

specific practice at issue.

9

II.

Specific religious practice may be completely prohibited despite an inadequate substitute.

A.

Specific forms of religious exercise are not

interchangeable.

As this case illustrates, it is not enough to

acknowledge that prohibiting religious practice constitutes a substantial burden. Determining whether a

religious practice has been prohibited requires defining what that practice is. If the practice is defined too

broadly, then a prohibition on that practice may be

masked by a proffered alternative that, from the perspective of the believer, is no substitute at all.

RFRA, RLUIPA, and their state analogs protect a

believer’s right to engage in the particular practices

that are important to their faith, not just to be religious in some more general sense. Both RFRA and

RLUIPA define “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§

2000bb-2(4), 2000cc-5(7)(A); see also Cutter v. Wilkinson, 544 U.S. 709, 714–15 (2005) (describing

RLUIPA as Congress’s narrower successor to RFRA,

employing the same strict-scrutiny test).

Accordingly, the relevant exercise is not the claimant’s “ability to practice his religion as a whole,” but

the particular practice the government has burdened.

Greene, 513 F.3d at 987. For instance, a person who is

allowed to pray may still be burdened when forbidden

to observe a holy day. A congregation allowed to

gather may still be burdened when prevented from

performing the rite for which it gathers. And, as here,

a believer allowed to enter a park may still be burdened when government eliminates the conditions the

10

believer sincerely identifies as necessary for a service.

The forms of religious practice within a particular religion are not fungible.

This Court made that clear in Holt v. Hobbs, 574

U.S. 352 (2015). Arkansas argued that its grooming

policy, which forbade a Muslim prisoner from maintaining a beard, was not a substantial burden because

he retained other ways to practice his religion. This

Court unanimously rejected that argument. Instead,

the proper inquiry in the RLUIPA context is whether

government substantially burdened the religious exercise at issue, “not whether the RLUIPA claimant is

able to engage in other forms of religious exercise.” Id.

at 361–62.

The Sixth Circuit likewise rejected the argument

that a prison’s refusal to provide a kosher meal including meat and dairy on certain days imposed no substantial burden because of the availability of a vegan

diet. As the court explained, “[i]n the religious-food

context, precedent is clear that barring access to the

practice of eating specific ceremonial foods substantially burdens the practice. And it is just as clear that

allowing the inmates access to other religious foods

does not make a difference.” Ackerman v. Washington,

16 F.4th 170, 184 (6th Cir. 2021) (cleaned up). The

court explained that “RLUIPA’s use of ‘religious exercise’ (as opposed to ‘religion’) tells us that the substantial-burden inquiry is practice specific.” Id. at 184 (citing Holt, 574 U.S. at 361-62). In determining whether

a substantial burden existed, the court “cannot look

to” “second-best option[s].” Id. at 185 (quoting Cavin

v. Mich. Dep’t of Corr., 927 F.3d 455, 459 (6th Cir.

2021)).

The Fifth Circuit’s reasoning in Merced v. Kasson

illustrates the same principle in a different context. A

11

city ordinance barred a Santeria priest from performing animal sacrifices that were essential to certain

ceremonies. The priest stopped those ceremonies but

continued other rituals. 577 F.3d 578, 582-83 (5th Cir.

2009). The Fifth Circuit held that the prohibition was,

“at a minimum,” a substantial burden. Id. at 590. The

court explained that the claimant’s “ability to perform

some ceremonies does not mean the city’s ordinances

do not burden other Santeria practices.” Id. at 591. Accordingly, the continued practice of Santeria in general did not dilute the burden on the ceremonies the

ordinance actually prevented.

Texas law, which governs Petitioners’ TRFRA

claim, is in accord. In Barr v. City of Sinton, a town

enacted an ordinance that effectively precluded a religious halfway house from operating in its borders. The

City argued that it imposed no substantial burden because the pastor operating the facilities could have restructured his ministry. See 295 S.W.3d 287, 302-03

(Tex. 2009). The Texas Supreme Court rejected that

argument, explaining that “a burden on a person’s religious exercise is not insubstantial simply because he

could always choose to do something else.” Id. at 303;

see also Merced, 577 F.3d at 591 (quoting Barr, 295

S.W.3d at 303).

Nevertheless, some courts substitute their own

judgment of a religion’s requirements for the claimant’s sincere theological judgment. See Pet. at 21-22

(describing some courts’ “objective” judgment of a

claimant’s burden). But the reasoning of those cases

illustrates the unworkability of that standard and its

failure to protect religious liberty. For example, as the

Petition describes, in Real Alternatives, Inc. v. Sec’y

Dept’ of Health & Hum. Servs., 867 F.3d 338, 359-61

(3d Cir. 2017), the Third Circuit found that employees

12

claiming a religious objection to abortifacients were

not substantially burdened by subscribing to an insurance program that covered them, because of what that

court judged to be the “attenuated” connection between that activity and their beliefs.

One problem with the objective approach to judging a claimant’s religion is that it runs afoul of this

Court’s teachings. In Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682 (2014), this Court rejected an argument that “the connection between what the objecting

parties must do . . . and the end that they find to be

morally wrong . . . is simply too attenuated.” Id. at

723-24. In so doing, it recognized that the substantial

burden question had to be answered with respect to

the particular petitioners’ religious beliefs, and that

the reasonableness of those asserted beliefs was a

“question that the federal courts have no business addressing.” Id. at 724. It follows that it is not for a federal court to decide whether some alternative is an adequate substitute for the particular challenged religious exercise.

But the objective approach to judging a claimant’s

religious practice necessarily invites courts to make

improper theological judgments about minority faiths.

For instance, a Pennsylvania state appellate court relied on Real Alternatives in deciding whether a Pennsylvania Department of Human Services regulation

infringed on a benefit recipient’s rights under the Free

Exercise Clause and under RFRA. At issue was the

number of hours for which a relative could be compensated for providing home care to the Petitioner. There,

the Pennsylvania Commonwealth Court took it upon

itself to interpret the requirements of Islamic law,

concluding that “substantial record evidence supports

that Islamic law allows an unrelated, non-Islamic

13

male aide to assist Petitioner outside Mother’s presence . . . before and after which Mother could provide

Petitioner’s necessary intimate personal care.” Alsyrawan v. Dep’t of Human Services, 316 A.3d 1076,

1094 (Pa. Commw. Ct. 2024). That is precisely the

type of judgment about doctrine and religious practice

that courts should not be making, and that they are

particularly ill-equipped to make in the context of

less-familiar minority faiths.

B.

Location and space are integral to many

forms of religious exercise.

Worship at a sacred site carries particular meaning that is not necessarily replicated in a governmentmandated alternative. Moreover, mere access to a sacred site does not protect the worship that occurs

there. A person may be physically permitted to enter

a place yet unable to conduct the ceremony for which

the place is sacred. The ceremony may be formally

permitted yet made impossible by the destruction of a

required feature. Ignoring differences between access,

use, and preservation obscures the burden imposed on

a religious practice. That is problematic not only for

Indigenous religions but also for other faiths that ascribe meaning to environment and place.

Federal land-management policy has long recognized these distinctions. Executive Order 13,007 directs federal agencies, as practicable and permitted by

law, to accommodate both “access to and ceremonial

use of” Native American sacred sites and additionally

to “avoid adversely affecting” their “physical integrity.” Exec. Order No. 13,007 § 1(a), 61 Fed. Reg.

26,771 (May 29, 1996). The policy recognizes that al-

14

lowing a worshipper to stand on the land is not necessarily allowing the service, and allowing the service in

theory is not preserving the conditions that make it

possible.

Current work from the Congressional Research

Service likewise explains that physical integrity of a

sacred site cannot be reduced to access. Indigenous sacred sites may incorporate water, plants, animals,

sound, light, viewsheds, and other living or intangible

features. Mark K. DeSantis, Mariel J. Murray &

Whitney K. Novak, Congressional Research Service,

Indigenous Sacred Sites: Overview and Issues for Congress, R48452, at 2–3, 20–21 (Mar. 14, 2025). However, defining sacred sites is complicated by “perceived differences between Indigenous spirituality

and the dominant non-Indigenous religions in the

United States.” See id. at 3.

An extensive USDA and Forest Service consultation record documents the same point. More than fifty

listening sessions involving more than 500 American

Indian and Alaska Native participants described ceremonies and rites linked to specific places. U.S. Department of Agriculture, Office of Tribal Relations &

U.S. Forest Service, USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites 1–2,

8 (Dec. 2012). Participants described some sacred

sites as “cultural landscapes” that “include plants, animals, sound, light, and other sometimes intangible

features.” Id. at app. D-7.

Academic scholarship likewise explains that “religion can have a profound influence on people’s relations to place,” that “place can be an integral part of

religion,” and that religious ties to place can be formed

through ritual, story, experience, and pilgrimage. See

Shampa Mazumdar & Sanjoy Mazumdar, Religion

15

and Place Attachment: A Study of Sacred Places, 24 J.

Env’t Psych. 385, 386–87, 394–95 (2004). The importance of place is not limited to Native American religious practice. For instance, the Sikh faith recognizes Amritsar as a sacred city, the Golden Temple

and gurdwaras as sacred structures, and the connection between place, Sikh identity, and religious community. Id. at 387-88, 393–95. When place is part of

the exercise, moving worship is not merely a change

of physical location. It changes the religious experience that the place helps constitute.

In other words, where a sacred site has religious

significance, it is a substantial burden to say that the

practice must take place somewhere else, because that

is tantamount to prohibiting the practice as it is

properly understood. Judge Oldham recognized this in

his dissenting opinion, explaining that “[t]o put it

quite simply, plaintiffs will be unable to practice their

faith if the City’s plans go forward. If that is not a substantial burden, I do not know what is.” Pet. App’x at

56a (Oldham, J., dissenting from denial of rehearing

en banc).

III. Minority faiths are particularly vulnerable to a rule that allows judicial interpretation

of their beliefs.

A.

Courts are less likely to appreciate the significance of minority religious practice.

A court is not in a position to evaluate the reasonableness of a believer’s interpretation of faith. As described above, whether an asserted religious belief is

reasonable is a “question that the federal courts have

no business addressing.” Burwell, 573 U.S. at 724.

The believer draws the line, “and it is not for us to say

16

that the line he drew was an unreasonable one.”

Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981). But that is

necessarily what happens when a court substitutes its

understanding of a practice’s significance for the believer’s account in determining whether a restriction

imposes a restrictive burden. Minority religions are

particularly susceptible to misunderstanding by

courts and government officials, who may not appreciate the significance of conducting a practice in a specific way, at a specific time, or in a specific place.

Sikh experience illustrates this. For instance, in

Tagore v. United States, a Sikh federal employee presented evidence that her faith required her to wear a

kirpan2 and faced a choice between doing so and keeping her job, with possible criminal exposure if she entered the federal building wearing it. 735 F.3d 324,

326-27 (5th Cir. 2013). The Fifth Circuit corrected the

district court’s determination that there was no factual question whether the employee’s “sincere religious beliefs require[d] her to wear a kirpan with a 3inch, rather than the statutorily permitted 2.5-inch,

blade.” Id. at 328. The district court’s second-guessing

of the claimant’s beliefs is typical of the type of misunderstanding often faced by adherents of minority

religions. If a court may replace an identified exercise

with what it determines to be a functionally similar

alternative, religious protection would turn on an outsider’s understanding of the plaintiff’s faith.

By contrast, courts are much more likely to appreciate the importance of specific religious practice in

2 As the court described it, a kirpan is “a Sikh article that ‘resem-

bles a knife or sword but, unlike those objects, often has an edge

that is curved or blunted.’” Id. at 326.

17

the context of majority faiths. For instance, in

McCurry v. Tesch, officers entered a Christian church

during a Monday-morning prayer vigil, removed

about eighty-five worshippers, and padlocked the

building. 738 F.2d 271, 273 (8th Cir. 1984). The court

rejected the argument that the congregation’s rights

of free exercise and freedom of expression were not

burdened “because the plaintiffs would be free to congregate and worship elsewhere.” Id. at 275. Church

buildings, it explained, have “a special spiritual significance to the persons who wish to worship there.”

Id. Religious equality requires the same care when the

place and form of worship are less familiar.

B.

Judicial confusion mirrors community

misunderstanding, especially in land use decisions.

The potential for judicial misunderstanding is especially problematic given biases against minority

faiths that make them more likely to be the target of

enforcement or regulatory action. For instance, a 2024

study showed that “the most important predictor of

resistance” to a zoning application for a new house of

worship was not “the facility’s expected level of nuisance” but rather “the religion of the house of worship.” Eliska Schnabel, Public Resistance to New

Houses of Worship, 9 J. Race, Ethnicity & Politics 642,

642 (2024). That is, “[p]eople are more likely to oppose

facilities associated with minority religious groups irrespective of other factors such as the building’s size,

location, or architecture.” Id. at 644. Although “[o]pponents of new houses of worship often invoke property

rights . . . this research suggests that residents are

motivated more by bias[.]” Id.

18

Actual land-use conflicts illustrate the same problem. A 2020 study of 116 zoning conflicts involving religious buildings in the New York City metropolitan

region found that Muslim groups “encountered opposition at over three times their proportion in the region’s population” and conservative “Jewish groups

experienced opposition . . . at a rate over four times

higher than their presence in the region.” Brian J.

Miller, Religious Freedom and Local Conflict: Religious Buildings and Zoning Issues in the New York

City Region, 1992–2017, 81 Sociology of Religion 462,

472, 475 (2020). Resistance was motivated by opposition to those minority faiths alongside ordinary traffic, parking, and neighborhood objections. See id. at

43. The study documents a recurring pattern in which

minority worship reaches public decisionmakers

through conflict shaped by outsiders who may not understand the exercise.

Federal enforcement data confirm the national

scope of this problem. Since RLUIPA’s enactment

through mid-2020, DOJ opened 485 RLUIPA land-use

investigations, filed 25 lawsuits, and submitted 29

amicus briefs concerning the land-use provisions of

RLUIPA. U.S. Dep’t of Justice, Report on the Twentieth Anniversary of the Religious Land Use and Institutionalized Persons Act at 12 (Sept. 22, 2020). Muslim and Jewish groups together account for approximately 3% of the U.S. population but 49% of all DOJ

RLUIPA land-use investigations from September

2010 through July 2016. U.S. Dep’t of Justice, Update

on the Justice Department’s Enforcement of the Religious Land Use and Institutionalized Persons Act:

2010–2016, at 5-6 (July 2016).

The Sikh community has faced similar opposition

to its use of specific places for worship.

19

For example, in Oyster Bay, Long Island, the local

Sikh congregation was forced to sue the municipality,

which had issued a stop work order preventing it from

completing a new temple. See Chris Fuchs, Sikh Congregation, Town Settle Lawsuit over Stopped Temple

Construction, nbcnews.com (Nov. 17, 2016); see also

Complaint, Guru Gobind Singh Sikh Center, Inc. v.

Town of Oyster Bay, N.Y., No. 2:16-cv-03600 (E.D.N.Y.

June 29, 2016). The case, which ended in a consent

decree, was brought even though the congregation

had agreed to mitigation measures to address community concerns.

Likewise, in San Jose, California, opponents of a

proposed gurdwara asserted five categories of objection, each of which the city’s own experts dismissed as

“baseless, because of the numerous special precautions that the Sikh community had taken to accommodate their neighbors.” Jaideep Singh, “No Sikh Jose”:

Sikh American Community Mobilization and Interracial Coalition Building in the Construction of a Sacred

Site, 8 Asian Pac. Am. L.J. 173, 181-82 (2002). No

other house of worship in San Jose faced the attendance limits or operating-hour restrictions imposed on

the gurdwara. Id. As one gurdwara official observed,

opponents “constantly shift[ed]” their objections, first

attacking the noise the temple would generate, then

claiming it would be an ugly building, then warning

that it would attract too many visitors. Id. at 183.

Similarly, in Guru Nanak Sikh Society v. County

of Sutter, 456 F.3d 978 (9th Cir. 2006), the county denied a Sikh temple’s conditional use permit twice, invoking broad and shifting rationales, first citing noise

and traffic, then objecting to “leapfrog development,”

even though the temple agreed to every mitigation

measure and another Sikh temple already existed on

20

similarly zoned land nearby. The Ninth Circuit rejected the county’s attempt to leverage these shifting

rationales as tools for site selection. “RLUIPA does not

contemplate that local governments can use broad

and discretionary land use rationales as leverage to

select the precise parcel of land where a religious

group can worship.” Id. at 992 n.20.

Recent disputes involving Hindu communities illustrate the same pattern. In Henderson, Nevada, the

American Hindu Association sought approval to construct a temple on a five-acre parcel in a rural neighborhood. See Victoria Saha, Religious Leaders Accuse

Henderson Officials of Discrimination, Blocking

Hindu Temple, fox5vegas.com (May 6, 2024). Many

neighbors appeared at a city planning meeting to object to the project. Id. The municipality issued a conditional use permit, but shortly before it expired

amended its code to limit religious assemblies and

schools to certain streets, none of which fronted the

proposed site. The Association filed a complaint to the

Department of Justice, alleging a violation of the community’s religious rights. Victoria Saha, Hindu Leaders Using Henderson Land for Worship Despite Ordinance Blocking Temple, fox5vegas.com (Nov. 19,

2024).

Similarly, in Orange County, Florida, a Hindu

community sought a special exception to build a temple. The congregation modified its plan to accommodate those concerns, but the municipality nevertheless upheld its denial of approval after dozens of residents participated in a public hearing. See Daryl Matthews, Orange County Commissioners Vote Down

“Temple on Hempel,” WFTV.com (Jan. 24, 2024). One

member of the Hindu community attributed commu-

21

nity objections largely to “the unknowns” of how Hindus “practice [their] faith.” Michelle Meredith, Orange

County’s Rejection of Temple Construction Causes Disappointment Among Hindu Members, WESH.com

(Jan. 24, 2024). Despite the community’s disappointment, a member noted that “[o]ur spiritual leader says

we should always look for the good in people and always look for the positive in situations.” Id.

*

*

*

Community opposition to minority faiths is often

grounded in outsiders’ unfamiliarity and misunderstanding. Here, the district court and Fifth Circuit decisions illustrate a similar misunderstanding of a minority religious practice. By shifting to a higher level

of generality in evaluating whether the Petitioners

were substantially burdened, the Fifth Circuit implicitly substituted its own understanding of the Petitioners’ religious beliefs, even though the sincerity of the

Petitioners’ beliefs is not in question. In so doing,

those courts failed to recognize that Petitioners’ ceremony is not the same exercise unless it is performed

at a particular place with particular natural features.

All minority religions risk the same misunderstanding when their beliefs are subject to interpretation by

an outsider judicial decisionmaker. This Court should

accept review to avoid that result.

*

*

*

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ANDREW R. SPERL

Counsel of Record

DUANE MORRIS LLP

30 South 17th Street

Philadelphia, PA 19103

(215) 979-1000

ARSperl@duanemorris.com

August 31, 2026