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

Supreme Court briefAug 31, 2026

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No. 26-15

In the Supreme Court of the United States

GARY PEREZ; MATILDE TORRES,

Petitioners,

CITY OF SAN ANTONIO,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF ETHICS AND PUBLIC POLICY CENTER

AS AMICUS CURIAE SUPPORTING PETITIONERS

IAN SPEIR

COVENANT LAW PLLC

13395 Voyager #130-732

Colo. Springs, CO 80921

(719) 464-7357

ian@covtlaw.com

ERIC N. KNIFFIN

Counsel of Record

RACHEL N. MORRISON

ETHICS AND PUBLIC

POLICY CENTER

1730 M Street N.W.

Suite 910

Washington, DC 20036

(202) 682-1200

ekniffin@eppc.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 1

ARGUMENT ............................................................... 4

The substantial burden test contains five

threshold limiting principles. .............................. 7

A. Religious claimants must show a specific

religious “exercise,” not mere subjective

feelings of offense. ........................................... 7

B. The exercise must be “religious” in

nature, not personal, philosophical, or

ideological........................................................ 9

C. Religious exercise must be “sincere,” not

contrived for litigation. ................................. 10

D. Failing to subsidize or support religious

exercise is not a “burden,” but inhibiting

or penalizing it is. ......................................... 12

E. A burden on religious exercise must be

“substantial.”................................................. 18

II. The Fifth Circuit misconceived the

substantial burden analysis. ............................. 22

CONCLUSION ......................................................... 25

TABLE OF AUTHORITIES

Cases

Abdulhaseeb v. Calbone,

600 F.3d 1301 (10th Cir. 2010) .............................. 19

Apache Stronghold v. United States,

101 F.4th 1036 (9th Cir. 2024) (en banc) .......... 3, 15

Apache Stronghold v. United States,

145 S. Ct. 1480 (2025) .............................................. 3

Barr v. City of Sinton,

295 S.W.3d 287 (Tex. 2009) ..................................... 5

Bowen v. Roy,

476 U.S. 693 (1986) .............................................. 7, 8

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................ 1, 11

Comanche Nation v. United States,

No. CIV-08-849-D, 2008 WL 4426621 (W.D.

Okla. Sep. 23, 2008) ............................................... 16

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ................................................ 13

Friedman v. Southern Cal. Permanente Med.

Grp.,

125 Cal. Rptr. 2d 663 (Cal. App. 2002) ................. 10

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .............................................. 2, 5

Fulton v. City of Philadelphia,

922 F.3d 140 (3d Cir. 2019) .................................. 18

iii

Gonzales v. O Centro Espírita Beneficente União

do Vegetal,

546 U.S. 418 (2006) .......................................... 2, 5, 6

Goodall by Goodall v. Stafford Cnty. Sch. Bd.,

60 F.3d 168 (4th Cir. 1995) .................................... 13

Henderson v. Kennedy,

253 F.3d 12 (D.C. Cir. 2001) .................................. 21

Holt v. Hobbs,

574 U.S. 352 (2015) ............................................ 5, 21

Kaemmerling v. Lappin,

553 F.3d 669 (D.C. Cir. 2008) .................................. 7

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................................. 2

Korte v. Sebelius,

735 F.3d 654 (7th Cir. 2013) .................................. 11

Locke v. Davey,

540 U.S. 712 (2004) ................................................ 14

Lozano v. Collier,

98 F.4th 614 (5th Cir. 2024) ............................ 12, 13

Lyng v. Northwest Indian Cemetery Protective

Ass’n,

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

Mahmoud v. McKnight,

102 F.4th 191 (4th Cir. 2024) ................................ 24

Mahmoud v. Taylor,

606 U.S. 522 (2025) .......................................... 14, 24

Mahone v. Pierce Cnty.,

No. 10-5847, 2011 WL 2360354 (W.D. Wash.

May 24, 2011) ......................................................... 12

Makin v. Colorado Dep’t of Corrs.,

183 F.3d 1205 (10th Cir. 1999) .............................. 14

Mayle v. United States,

891 F.3d 680 (7th Cir. 2018) .................................... 8

Murphy v. Collier,

139 S. Ct. 1475 (2019) ............................................ 21

Navajo Nation v. United States Forest Serv.,

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

Norwood v. Strada,

249 Fed Appx. 269 (3d Cir. 2007) .......................... 19

Ochs v. Thalacker,

90 F.3d 293 (8th Cir. 1996) .................................... 11

Oklevueha Native American Church of Hawaii,

Inc. v. Lynch,

828 F.3d 1012 (9th Cir. 2016) ................................ 21

Patrick v. LeFevre,

745 F.2d 153 (2d Cir. 1984) ............................. 11, 12

Ramirez v. Collier,

595 U.S. 411 (2022) .................................................. 2

Real Alternatives, Inc. v. Secretary Dep’t of

Health & Hum. Servs.,

867 F.3d 338 (3d Cir. 2017) ............................. 19, 20

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) .................................................. 24

San Jose Christian College v. City of Morgan

Hill,

360 F.3d 1024 (9th Cir. 2004) ................................ 20

School Dist. of Abington Twp., Pa. v. Schempp,

374 U.S. 203 (1963) ................................................ 15

Smith v. Allen,

502 F.3d 1255 (11th Cir. 2007) .............................. 19

Sossamon v. Texas,

563 U.S. 277 (2011) ................................................ 19

Thiry v. Carlson,

78 F.3d 1491 (10th Cir. 1996) ................................ 21

Thomas v. Review Bd. of the Indiana Emp’t Sec.

Div.,

450 U.S. 707 (1981) ............................................ 9, 11

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

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

United States v. Barnes,

677 Fed. Appx. 271 (6th Cir. 2017) ....................... 10

United States v. Friday,

525 F.3d 938 (10th Cir. 2008) ................................ 20

United States v. Manneh,

645 F. Supp. 2d 98 (E.D.N.Y. 2008) ...................... 12

United States v. Martines,

582 Fed. Appx. 768 (9th Cir. 2014) ....................... 11

United States v. Meyers,

95 F.3d 1475 (10th Cir. 1996) ................................ 10

United States v. Quaintance,

608 F.3d 717 (10th Cir. 2010) ................................ 11

United States v. Seeger,

380 U.S. 163 (1965) ................................................ 11

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................................. 9

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ............ 6, 10, 15, 19, 23

Constitutional Provisions

U.S. Const. amend. I ................................................... 4

Statutes

42 U.S.C. § 2000bb-1 ................................................... 4

42 U.S.C. §§ 2000cc–2000cc-5 ..................................... 4

Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001–

.012 ........................................................................... 5

Other Authorities

Cong. Rsch. Serv., R48452, Indigenous Sacred

Sites: Overview and Issues for Congress (2025) .... 17

Douglas Laycock & Thomas C. Berg, Protecting

Free Exercise Under Smith and After Smith,

Cato Sup. Ct. Rev. (2020–21) ................................ 15

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785) ..................... 5

vii

Luke W. Goodrich & Rachel N. Busick, Sex,

Drugs, and Eagle Feathers: An Empirical

Study of Federal Religious Freedom Cases, 48

Seton Hall L. Rev. 353 (2018).............................. 2, 4

Michael W. McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115 (1992) ............ 13

Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise of

Religion, 103 Harv. L. Rev. 1409 (1990) ............... 10

Nathan S. Chapman, Adjudicating Religious

Sincerity, 92 Wash. L. Rev. 1185 (2017) ............... 11

Sherif Girgis, Defining “Substantial Burdens”

on Religion and Other Liberties, 108 Va. L.

Rev. 1759 (2022)............................................. 2, 8, 21

Stephanie Hall Barclay & Michalyn Steele,

Rethinking Protections for Indigenous Sacred

Sites, 134 Harv. L. Rev. 1294 (2021). ........ 13, 14, 16

INTEREST OF AMICUS CURIAE 1

Amicus Curiae Ethics and Public Policy Center

(EPPC) is a nonprofit research institution dedicated to

applying the Judeo-Christian moral tradition to

critical issues of public policy, law, culture, and

politics. EPPC’s programs cover a wide range of issues,

including

government

accountability,

judicial

restraint, and religious liberty. EPPC regularly

submits friend-of-the-court briefs in religious liberty

cases and writes here to highlight limiting principles

that allow courts to protect religious liberty and weed

out unwarranted exemption claims.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Federal and state law promise “very broad

protections for religious liberty” through the Free

Exercise Clause, the Religious Freedom Restoration

Act (RFRA), and state analogues like the Texas

Religious Freedom Restoration Act (TRFRA). Burwell

v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014)

(regarding RFRA). In the decades since Congress

enacted RFRA and its sister statute, the Religious

Land Use and Institutionalized Persons Act

(RLUIPA), this Court has acted to fulfill that promise,

vindicating the fundamental right to practice one’s

faith free of government-imposed burdens that don’t

meet a rigorous balancing test. See ibid.; Gonzales v.

1 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 amicus and counsel for

amicus contributed monetarily to this brief’s preparation or

submission.

O Centro Espírita Beneficente União do Vegetal, 546

U.S. 418 (2006). And this Court has applied the same

demanding strict-scrutiny principles in Free Exercise

cases. See, e.g., Fulton v. City of Philadelphia, 593 U.S.

522, 541 (2021); Kennedy v. Bremerton Sch. Dist., 597

U.S. 507, 543 n.8 (2022); Ramirez v. Collier, 595 U.S.

411, 432 (2022).

Some worry, however, that the first step in the

strict scrutiny test—the claimant’s burden to show a

substantial burden on his or her religious exercise—

“fail[s] to impose sensible limits on exemptions” and

overprotects religious exercise at the expense of

government objectives. See Sherif Girgis, Defining

“Substantial Burdens” on Religion and Other

Liberties, 108 Va. L. Rev. 1759, 1762 (2022) (citing

such critics); Luke W. Goodrich & Rachel N. Busick,

Sex, Drugs, and Eagle Feathers: An Empirical Study

of Federal Religious Freedom Cases, 48 Seton Hall L.

Rev. 353, 356 (2018) (discussing and dispelling this

“common narrative”).

Concerns like these have led some lower courts to

narrow the substantial-burden inquiry through judgemade doctrines untethered to the governing text and

inconsistent with Free Exercise Clause jurisprudence.

This pattern is especially pronounced where Native

Americans seek to continue centuries-old religious

ceremonies on what is now government land.

Consider, for example, the Ninth Circuit’s recent

decision in Apache Stronghold v. United States.

Though the federal government’s plan would “result in

the destruction of an ancient sacred site,” the court

held that the plan does “not impose a substantial

burden on religious exercise.” 145 S. Ct. 1480 (2025)

(Gorsuch, J., dissenting from denial of writ of

certiorari) (quoting Apache Stronghold v. United

States, 101 F.4th 1036, 1044 (9th Cir. 2024) (en banc)).

As Justices Gorsuch and Thomas noted, “it seems the

Ninth Circuit was concerned that a ruling for Apache

Stronghold would effectively afford tribal members a

‘religious servitude’ on federal land at Oak Flat.” Id. at

1487 (quoting Apache Stronghold, 101 F.4th at 1055).

It appears the court, absorbed by such policy concerns,

“abandon[ed] the statutory text in favor of guesswork

about unenacted congressional purposes.” Ibid.

This case closely tracks Apache Stronghold. Both

were brought by Native Americans who seek to

continue centuries-old religious ceremonies on land

now controlled by government. Just as in Apache

Stronghold, the petitioners here are seeking to enjoin

a government plan that will physically alter the site in

ways that would make petitioners’ religious use

impossible. Yet, just as in Apache Stronghold, the

court invoked Lyng v. Northwest Indian Cemetery

Protective Association, 485 U.S. 439 (1988) and held

that petitioners had not demonstrated any substantial

burden on their religious exercise. Six of the Fifth

Circuit’s seventeen active judges, including the Chief

Judge, saw this as a serious error. They dissented from

the denial of rehearing en banc, describing the

“burdens on plaintiffs’ religious freedoms” as

“undeniable.” Pet.App. 54a (Oldham, J., dissenting).

The fears and policy concerns that have led courts

to throttle the “substantial burden” test are

unfounded. Robust protection for religious liberty is

indeed a thumb on the scale, but it is not an

unconstrained liberty. Across the Free Exercise

Clause, RFRA, RLUIPA, and TRFRA, courts apply

meaningful limiting principles that temper religious

liberty claims and sensibly limit exemptions. At the

threshold, a plaintiff must show a (1) substantial (2)

burden on (3) sincere (4) religious (5) exercise. Only

then must the government come forward with a

compelling interest advanced by the least restrictive

means. That threshold showing is not onerous, but it

isn’t toothless. These limiting principles do real work,

even in hard cases. See Goodrich & Busick, supra, at

356 (concluding that “[c]ourts have had no problem

weeding out weak or insincere RFRA claims,” and “[i]f

anything, RFRA has been underenforced”).

Amicus urges this Court to grant review and clarify

courts’ important but limited role under the

substantial burden inquiry. There is no Native

American or government control exception to the

substantial burden inquiry. And regardless of the law

or provision under which a claim arises, courts may

not deny substantial burdens by second-guessing the

claimants’ theological judgments.

ARGUMENT

The Free Exercise Clause, together with the

Religious Freedom Restoration Act (RFRA), the

Religious Land Use and Institutionalized Persons Act

(RLUIPA), and state analogues like the Texas

Religious Freedom Restoration Act (TRFRA) centrally

command that government shall not substantially

burden a person’s exercise of religion unless doing so

is the least restrictive means of furthering a

compelling governmental interest. U.S. Const. amend.

I; 42 U.S.C. § 2000bb-1(a); 42 U.S.C. §§ 2000cc et seq.;

Tex. Civ. Prac. & Rem. Code § 110.003. 2 But none of

these protections for religious liberty create a

“categorical strict scrutiny regime” that puts the

government to the test just because a plaintiff claims

her free exercise is burdened. Cf. Fulton v. City of

Philadelphia, 593 U.S. 522, 543 (2021) (Barrett, J.,

concurring) (“skeptical” about replacing Smith with a

“categorical strict scrutiny regime” for Free Exercise

claims). Rather, a claimant’s initial burden to show a

substantial burden on religious exercise contains at

least five meaningful limiting principles. At the

threshold, a claimant must show a (1) substantial (2)

burden on (3) sincere (4) religious (5) exercise. Taking

these elements in reverse order facilitates the

analysis.

First, the claim must seek to protect a specific

religious “exercise”—an act or abstention rooted in

religious belief. Mere subjective feelings of offense or

sacrilege don’t qualify.

Second, the exercise must be “religious,” deriving

in some sense from the “duty which we owe to our

Creator.”

James

Madison,

Memorial

and

Remonstrance Against Religious Assessments (1785).

Acts or abstentions rooted in personal, philosophical,

or ideological opposition don’t qualify.

2 The substantial burden test works the same under the Free

Exercise Clause, RFRA, RLUIPA, and TRFRA. See Gonzales v. O

Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 424

(2006) (RFRA restored “the pre-Smith jurisprudence” under the

Free Exercise Clause); Holt v. Hobbs, 574 U.S. 352, 355 (2015)

(RFRA and RLUIPA are “sister statute[s]”); Barr v. City of

Sinton, 295 S.W.3d 287, 296 (Tex. 2009) (RFRA and RLUIPA are

“germane in applying” TRFRA).

Third, the religious exercise must be “sincere”—a

genuinely held, good-faith expression of religious

conviction. Practices contrived for litigation don’t

qualify.

Fourth, government action must “burden” a sincere

religious exercise, meaning it must inhibit or penalize

it in some way. Mere refusals to subsidize or support

religious observance don’t qualify.

Fifth, the burden must be “substantial”—that is, of

ample or considerable amount. Interference that is

fleeting or de minimis, or that allows religiously

acceptable alternatives, doesn’t qualify.

As demonstrated below, courts don’t always

precisely distinguish these concepts, often simply

lumping them into a conclusion about “substantial

burden.” But these principles are in play in every case,

even if not always disputed, and they help courts sift

the wheat of religious liberty from the chaff of

unwarranted exemption claims.

Further, even when a claimant satisfies this

fivefold threshold showing, the government still has

the opportunity to show it is furthering a compelling

interest by the least restrictive means. This is a

demanding and “focused” inquiry to be sure, but not

insurmountable, and this Court has never “doubt[ed]

that there may be instances in which a need for

uniformity precludes the recognition of exceptions to

generally applicable laws.” Gonzales v. O Centro

Espírita Beneficente União do Vegetal, 546 U.S. 418,

436 (2006) (applying RFRA); see also Yellowbear v.

Lampert, 741 F.3d 48, 57 (10th Cir. 2014) (Gorsuch, J.)

(“RLUIPA anticipates that its solicitude for religious

exercise must sometimes yield to other competing

state interests.”).

I. The substantial burden test contains five

threshold limiting principles.

A. Religious claimants must show a specific

religious “exercise,” not mere subjective

feelings of offense.

The “exercise” protected by the Free Exercise

Clause and religious freedom statutes is an act or

abstention rooted in religious belief. “Religious

exercise necessarily involves an action or practice,”

and to trigger these protections, government must

pressure an adherent to “modify his religious

behavior” or “interfere with [a] religious act in which

he engages.” Kaemmerling v. Lappin, 553 F.3d 669,

679 (D.C. Cir. 2008). By contrast, religious liberty

protections offer nothing to those who merely take

offense at something the government does.

Kaemmerling illustrates the point. The plaintiff

there didn’t object to the government’s collection of his

tissue sample. His objection, rather, was to the

government’s later analysis of the sample to collect

DNA information, which the plaintiff claimed to

“kno[w]” was an “unholy act of an oppressive regime.”

Id. at 678–679 (cleaned up). The plaintiff failed to

“identify any ‘exercise’ which is the subject of the

burden to which he objects.” Id. at 679. “Kaemmerling

alleges no religious observance that the DNA Act

impedes, or acts in violation of his religious beliefs that

it pressures him to perform.” Ibid.

Bowen v. Roy, 476 U.S. 693 (1986), rests on the

same principle. The plaintiff objected to two features

of a benefits law: (1) “the Government’s use” of a Social

Security number to identify his daughter, and (2) the

requirement that he himself “furnish” the government

with her number to obtain benefits. See id. at 699–700.

As to the first, his challenge failed. While this Court

framed this aspect of the claim as an effort to “dictate

the Government’s internal procedures,” id. at 700,

rightly understood, it was about a lack of religious

exercise at all. The relevant government action did not

“inhibit the claimant’s religious conduct” in any way.

See Girgis, supra, at 1806. But as to the second aspect,

a majority of the Court ruled that Bowen had

demonstrated a substantial burden because the

government had “condition[ed] receipt of an important

benefit” on his religiously forbidden conduct. See

Bowen, 476 U.S. at 727, 731 (O’Connor, J., concurring

in part and dissenting in part, joined by Brennan and

Marshall, JJ.) (“[F]ive Members of the Court agree

that Sherbert and Thomas, in which the government

was required to accommodate sincere religious beliefs,

control the outcome of this case to the extent it is not

moot.”).

Other cases likewise recognize that adverse effects

on subjective feelings and experiences don’t clear the

substantial burden threshold. E.g., Mayle v. United

States, 891 F.3d 680 (7th Cir. 2018) (subjective

feelings of “guilt, shame, and … fear” to presence of “In

God We Trust” on U.S. currency not “substantial

burden”).

Lyng and Navajo Nation should be understood in

this light. See Lyng v. Northwest Indian Cemetery

Protective Ass’n, 485 U.S. 439, 443, 448, 450 (1988) (no

free exercise violation where plaintiffs had access to

site, though “sacredness” and “spiritual development”

were “diminish[ed]”); Navajo Nation v. United States

Forest Serv., 535 F.3d 1058, 1063 (9th Cir. 2008) (no

burden where use of site not “physically affected” and

“sole effect” was on “subjective spiritual experience”),

overruled on other grounds by Apache Stronghold, 101

F.4th 1036. By contrast here, the City of San Antonio’s

plans would not just diminish petitioners’ spiritual

experience; “cut[ting] down the trees” and “driv[ing]

away the nesting cormorants” would “destroy

Petitioner’s religious exercise forever.” Pet. 1.

B. The exercise must be “religious” in

nature, not personal, philosophical, or

ideological.

“Courts

are

not

arbiters

scriptural

interpretation.” Thomas v. Review Bd. of the Indiana

Emp’t Sec. Div., 450 U.S. 707, 716 (1981). But

protection for “religious” exercise requires a threshold

look at whether an objection has its source “in

religious belief” as opposed to personal, philosophical,

or ideological considerations. Wisconsin v. Yoder, 406

U.S. 205, 216 (1972). “A way of life, however virtuous

and admirable, … based on purely secular

considerations” “does not rise to the demands of the

Religion Clauses.” Ibid. Thus, for example, the Free

Exercise Clause would not protect Thoreau’s decision

to “reject[] the social values of his time,” given that his

“choice was philosophical and personal rather than

religious.” Ibid. RFRA, RLUIPA, and state analogues

likewise protect “only” those convictions “motivated by

religious faith—in recognition, no doubt, of the unique

role religion, its free exercise, and its tolerance have

played in the nation’s history.” Yellowbear, 741 F.3d at

53; see Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise of Religion,

103 Harv. L. Rev. 1409, 1498 (1990) (“From the

perspective of the advocates of religious freedom in

1789, the protection of private judgment (secular

‘conscience’) fundamentally differs from the protection

of free exercise of religion.”).

That is why the court rejected the defendant’s

RFRA defense in United States v. Barnes, 677 Fed.

Appx. 271 (6th Cir. 2017). His admission “that

marijuana was not a necessary part of his religion”

supported the conclusion that the acts for which he

was charged “were, in fact, based on his own personal

belief or philosophy regarding marijuana.” Id. at 277;

see also United States v. Meyers, 95 F.3d 1475, 1484

(10th Cir. 1996) (drawing on First Amendment

precedents for definition of “religious” and rejecting

RFRA defense because belief in “[m]arijuana’s

medical, therapeutic, and social effects” was “secular,

not religious”); Friedman v. Southern Cal. Permanente

Med. Grp., 125 Cal. Rptr. 2d 663, 685 (Cal. App. 2002)

(extensively discussing what counts as “religious” and

concluding that “[w]hile veganism compels plaintiff to

live in accord with strict dictates of behavior, it reflects

a moral and secular, rather than religious,

philosophy”).

C. Religious exercise must be “sincere,” not

contrived for litigation.

Under the substantial burden framework, courts

don’t ask whether a particular practice is a central to

a religious faith or whether a litigant has understood

her faith correctly. Hobby Lobby, 573 U.S. at 724–725;

Thomas, 450 U.S. at 714–716. But they do ask

whether a plaintiff is “sincere.” Sincerity is a

“threshold question” “in every case” because “[w]hile

the truth of a belief is not open to question, there

remains the significant question whether it is truly

held.” United States v. Seeger, 380 U.S. 163, 185

(1965); see also Thomas, 450 U.S. at 715 (asking

whether the claimant “drew a line” reflecting an

“honest conviction”).

Sincerity “is a factual matter,” United States v.

Quaintance, 608 F.3d 717, 721 (10th Cir. 2010)

(Gorsuch, J.), in which a court “seeks to determine an

adherent’s good faith in the expression of his religious

belief,” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir.

1984). Courts adjudicate religious sincerity just like

“any other factual determination of a party’s mental

state.” Nathan S. Chapman, Adjudicating Religious

Sincerity, 92 Wash. L. Rev. 1185, 1191 (2017); see

Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013)

(“Checking for sincerity … weed[s] out sham claims.”).

In Quaintance, the Tenth Circuit rejected a RFRA

defense because “numerous pieces of evidence”

“strongly suggest[ed]” the defendants’ “marijuana

dealings were motivated by commercial or secular

motives rather than sincere religious conviction.” 608

F.3d at 722; see also United States v. Martines, 582

Fed. Appx. 768, 769 (9th Cir. 2014) (similar

conclusion). The Eighth Circuit applied similar logic in

Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996):

“[W]e are skeptical that Ochs’s request to be racially

segregated, first made in the midst of prison racial

disturbances, reflected a sincerely held religious

belief.” As numerous decisions attest, sincerity is a

robust limiting principle in statutory and

constitutional religious liberty cases. E.g., Mahone v.

Pierce Cnty., No. 10-5847, 2011 WL 2360354, at *7, 8

(W.D. Wash. May 24, 2011) (plaintiff was not “sincere

in his profession that he is Jewish” because there was

“no evidence that [he] ... ever engaged in the practices

and tenets of Judaism other than his stated belief that

he must eat kosher foods”); United States v. Manneh,

645 F. Supp. 2d 98, 111 (E.D.N.Y. 2008)

(“[D]efendant’s religious beliefs relating to bushmeat

are not the bona fide explanation for the criminal

conduct she is charged with committing.”).

Sincerity analysis offers “a rational means of

differentiating between those beliefs that are held as

a matter of conscience and those that are animated by

motives of deception and fraud.” Patrick, 745 F.2d at

157. While it may sometimes “appear to overlap with

the test for what is ‘religious,’” sincerity is “a discrete

element in RFRA and Free Exercise analyses.”

Manneh, 645 F. Supp. 2d at 111.

D. Failing to subsidize or support religious

exercise is not a “burden,” but inhibiting

or penalizing it is.

While many courts treat the concept of “substantial

burden” as an undifferentiated whole, the question of

whether there is a burden is analytically distinct from

whether that burden is substantial enough to trigger

strict scrutiny.

The General Rule. Usually, a burden arises based

on something the government does, not what it fails to

do. In most contexts of American life, “voluntary choice

is the baseline.” Lozano v. Collier, 98 F.4th 614, 628

(5th Cir. 2024) (Oldham, J., concurring in judgment).

People are free to make their own choices in religious

matters, and “government is generally under no legal

compulsion to affirmatively subsidize or support those

choices.” Ibid. Religious liberty “does not require the

federal government to build churches or employ

rabbis.” Ibid.

In voluntary-choice cases, government creates a

burden when it “bring[s] to bear its sovereign power in

a way that inhibits … religious voluntarism,” thereby

decreasing individuals’ ability to practice their faith

“consistent with their own free self-development.”

Stephanie Hall Barclay & Michalyn Steele,

Rethinking Protections for Indigenous Sacred Sites,

134 Harv. L. Rev. 1294, 1325 (2021). Burden analysis

thus begins with a “hypothetical world in which

individuals make decisions about religion on the basis

of their own religious conscience,” then asks whether

and to what extent a particular government action

interferes with those decisions. Michael W.

McConnell, Religious Freedom at a Crossroads, 59 U.

Chi. L. Rev. 115, 169 (1992). The aim is to “ensure that

religion remains a matter of voluntary choice by

individuals and their associations.” Espinoza v.

Montana Dep’t of Revenue, 591 U.S. 464, 514 (2020)

(Gorsuch, J., concurring) (cleaned up). And as long as

government doesn’t interfere with voluntary choice, it

doesn’t burden free exercise. See, e.g., Goodall by

Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168, 172

(4th Cir. 1995) (RFRA and Free Exercise Clause do not

“impose upon the government an obligation to

subsidize” voluntary choices).

Exception One: Public Benefits. But there are at

least two contexts where this general rule is altered.

The first is public-benefit cases. When government

“makes a public benefit generally available, that

benefit becomes part of the baseline against which

burdens on religion are measured.” Locke v. Davey,

540 U.S. 712, 726–727 (2004) (Scalia, J., dissenting).

At that point, the relevant question is not whether the

religious adherent is “entitle[d] to a subsidy” but

whether she has a “right to participate” in the benefit

on “equal footing” without disavowing faith. Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449, 463 (2017) (cleaned up). Because denying that

right “inevitably deters or discourages”—i.e.,

burdens—religious exercise, heightened scrutiny

applies. Ibid.

Exception Two: Government-Occupied Fields.

The second exception is when “government so wholly

occupies the field” that government interference rather

than voluntary choice is the baseline. Barclay &

Steele, supra, at 1333. Under this heading are prison

facilities, military environments, zoning, and

government-controlled sacred sites. In these contexts,

religious observers are at the mercy of government.

They can’t voluntarily practice their faith unless the

government affirmatively permits access or “acts to lift

its

coercive

power

through

religious

accommodation.” Ibid. In such cases, courts usually

have no trouble recognizing a burden based on

government’s denial of access or failure to

accommodate. See id. at 1333–1342; e.g., Mahmoud v.

Taylor, 606 U.S. 522, 556–557 (2025) (“direct,

coercive” features of public school environment

required religious accommodation); Makin v. Colorado

Dep’t of Corrs., 183 F.3d 1205, 1211 (10th Cir. 1999)

(“failure to accommodate” Muslim inmate’s meal

requirements violated free exercise rights); Apache

Stronghold, 101 F.4th at 1143 (Murguia, C.J.,

dissenting) (Smith and other cases recognize that

“preventing a person from engaging in religious

exercise implicates the Free Exercise Clause”).

Then-Judge Gorsuch’s opinion for the Tenth

Circuit in Yellowbear is illustrative. There, a state

correctional facility barred a Native American

prisoner from accessing a government-owned sacred

site, a sweat lodge on prison grounds. 741 F.3d at 56.

The prisoner’s faith “require[d] at least some access” to

the site but because prison policy “refuse[d] any

access,” the court found a RLUIPA violation. Ibid.

“[F]latly prohibiting” religious exercise “easily”

qualified as a substantial burden. Ibid. This was true

even though the prison had done nothing more than

maintain its preexisting control over the prison yard.

But that didn’t matter. “This isn’t a situation,” thenJudge Gorsuch wrote, “where the claimant is left with

some degree of choice in the matter.” Ibid. So to ask

about the government’s “coercive influence on” or

interference with “that choice” would make little

sense. See ibid.

This logic gets the burden analysis exactly right in

cases of government control: when government

“regulates the temporal and geographic environment

of individuals,” it may have to take steps to “permit”

religious exercise lest individuals be “unable to engage

in the practice of their faiths.” School Dist. of Abington

Twp., Pa. v. Schempp, 374 U.S. 203, 226 n.10 (1963);

see Douglas Laycock & Thomas C. Berg, Protecting

Free Exercise Under Smith and After Smith, Cato Sup.

Ct. Rev. at 33, 58 (2020–21) (“[T]he government, by

seizing sacred lands, took control over the tribes’

ability to practice their traditions fully—in somewhat

the same way that prisons control inmates’ ability to

practice their faith.”).

While government generally is under no obligation

to assume ownership or control of religious sites, once

it does so, interference becomes the new baseline and

the focus of the burden analysis shifts. The question

then is not whether government has acted to interfere

with a voluntary religious choice, but whether it has

failed to act by refusing to alleviate some element of

the omnipresent interference. Barclay & Steele, supra,

at 1333. In other words, the question is not whether

the government has stepped in but whether it has

failed to step out in some way. In government-control

cases, failure to accommodate itself creates the

burden. See Comanche Nation v. United States, No.

CIV-08-849-D, 2008 WL 4426621, at *3, *17 (W.D.

Okla. Sep. 23, 2008) (construction of government

building on federal land in “precise area” of plaintiff’s

“traditional religious practices” was substantial

burden because it would “significantly inhibit” and

“deny reasonable opportunities” for religious exercise).

When it comes to government-controlled religious

property, indigenous sites aren’t the only things at

stake. “[T]here are around seventy churches within

the national parks.” Barclay & Steele, supra, at 1341.

Congress established a National Historical Park

“around four of the Southwest’s famous Catholic

mission churches,” and one—San Xavier del Bac—

“remains an important pilgrimage site that thousands

visit each year.” Ibid. The Ebenezer Baptist Church in

which Martin Luther King Jr. preached is located on

government-leased property. Apache Stronghold, 145

S. Ct. at 1488 (Gorsuch, J., dissenting). Under the

Ninth Circuit’s approach in Apache Stronghold and

the Fifth Circuit’s approach here, the government

could close these places forever, or even raze them

entirely, without ever undergoing strict scrutiny.

Unless checked, this logic would create perverse

incentives for aggressive land acquisition and

sweeping assertions of sovereignty over religious sites.

If controlling land categorically eliminates substantial

burden analysis, government gains power to evade

review under the Free Exercise Clause and its

statutory analogues simply by acquiring property—

precisely the pattern that characterized federal Indian

policy for over a century. See Cong. Rsch. Serv.,

R48452, Indigenous Sacred Sites: Overview and Issues

for Congress 4–5 (2025) (“[M]any of the ancestral

homelands previously occupied by Indigenous peoples,

including lands containing Indigenous sacred sites,

are now owned and managed by the federal

government…. At the same time that Indigenous

peoples were being removed from their ancestral

homelands, the federal government was establishing

formal policies aimed at curtailing or suppressing

certain Indigenous religious practices … including …

site-specific religious practices.”). A rule that rewards

government expansion into domains of religious

exercise, rather than constraining it, inverts the

design of the Free Exercise Clause and the statutes

enacted to reinforce it.

This logic extends beyond land to any field

government regulates comprehensively. The City of

Philadelphia already made this exact argument in

Fulton: it claimed Catholic Social Services had no

religious liberty claim because foster care had become

comprehensively-regulated

public

function,

“essentially a public service.” See Fulton v. City of

Philadelphia, 922 F.3d 140, 160 (3d Cir. 2019).

This Court rightly rejected this argument. It

cannot be that “an activity, traditionally undertaken

by religious groups for religious reasons, loses all

religious liberty protections as soon as government

encompasses it within a regulatory framework.” Brief

of Amici Curiae United States Conf. of Catholic

Bishops and Pa. Catholic Conf. at 5, Fulton v. City of

Philadelphia, 593 U.S. 522 (2021) (No. 19-123),

https://bit.ly/4bjIb9H.

Yet the Fifth Circuit’s decision below would seem

to validate the City of Philadelphia’s reasoning. If the

substantial burden test is watered down here because

San Antonio presently has control over an ancient

Native American pilgrimage site, why couldn’t

Philadelphia curb Catholic Social Services’ religious

exercise by overtaking foster-care licensing? The

answer cannot be “this case is about land.” Refusing to

recognize a substantial burden because the

government comprehensively occupies the relevant

domain—physical or regulatory—undermines Fulton

and hands governments a blueprint for evading

religious liberty protections: claim sovereignty over

the field, then use that claim as a defense to avoid

accountability under strict scrutiny.

E. A burden on religious exercise must be

“substantial.”

Not “every infringement on a religious exercise will

constitute a substantial burden.” Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1316 (10th Cir. 2010)

(emphasis added). A court must examine “the nature

and extent to which religious exercise is hampered or

restrained by” government action. Real Alternatives,

Inc. v. Secretary Dep’t of Health & Hum. Servs., 867

F.3d 338, 365 (3d Cir. 2017). Substantial “doesn’t

mean complete or total.” Yellowbear, 741 F.3d at 55.

But the interference “must be more than incidental”

and “more than an inconvenience”; it “must

significantly hamper one’s religious practice.” Smith v.

Allen, 502 F.3d 1255, 1277 (11th Cir. 2007) (cleaned

up), abrogated on other grounds by Sossamon v. Texas,

563 U.S. 277 (2011). The substantiality requirement

serves as “an imperative safeguard, else religious

beliefs would invariably trump government action.”

Real Alternatives, 867 F.3d at 365.

Courts have fleshed out the meaning of

“substantial” in various contexts, clarifying that a

burden is not substantial if it (a) is fleeting, (b) is de

minimis, or (c) leaves adherents free to pursue a

religiously acceptable alternative.

Fleeting. While religious prisoners generally must

be furnished with a religiously compliant diet, in

Norwood v. Strada, 249 Fed Appx. 269, 272 (3d Cir.

2007), the “short denial of such a diet during an

emergency lock-down” was a “mere de minimis

intrusion,” not a substantial burden. “[I]t is

incredible,” the court wrote, “that in such a short time

period Norwood would have been forced to abandon

one of the precepts of his religion” or “felt substantial

pressure to modify his beliefs.” Ibid.

De Minimis. Burdens that are de minimis or

attenuated don’t qualify as substantial, particularly

when adherents retain a significant element of choice.

Thus, in Real Alternatives, employees were not

substantially burdened by the requirement that their

employer’s health plan cover contraceptives. The

requirement only “broaden[ed] the availability of

services that an employee might or might not access”

and it was “still up to the employee to decide what to

do with those options.” 867 F.3d at 361. 3

Similarly, in United States v. Friday, 525 F.3d 938,

948 (10th Cir. 2008) (McConnell, J.), requiring a

religious adherent to obtain a permit before killing an

eagle was not a substantial burden because the

adherent’s religious tenets were not inconsistent with

using the application process. And in San Jose

Christian College v. City of Morgan Hill, 360 F.3d

1024, 1035 (9th Cir. 2004), requiring the college “to

submit a complete [zoning] application, as is required

of all applicants,” did not substantially burden

religious exercise. In these cases, courts examine “the

connection between the conduct and the religious

belief” and do not countenance burdens that are

“negligible.” Real Alternatives, 867 F.3d at 361.

Religiously Acceptable Alternatives. This

Court “ha[s] not addressed” whether an available

alternative that is religiously “indistinguishable from

the prohibited practice” alleviates a substantial

burden. Murphy v. Collier, 139 S. Ct. 1475, 1484

3 The situation in Real Alternatives was “[u]nlike Hobby Lobby”

in which the employer had to “arrang[e] or provid[e]” the

objectionable coverage. 867 F.3d at 362. Here, the employees

didn’t arrange or provide anything. They simply “bec[ame]

eligible”—passively—for a “service of [their] choosing.” Ibid. In

this sense, Real Alternatives is as much a no-exercise case as a

de-minimis-burden case.

(2019) (Alito, J., dissenting). But a number of cases

have held that a burden isn’t substantial when

adherents, by their own admission, have religiously

acceptable alternatives for a particular faith practice.

See also Girgis, supra, at 1795 (advocating an

“adequate alternatives principle” for substantial

burden analysis, which asks whether a claimant still

has “another way” to exercise religion to “about the

same degree” and at “not much greater cost”

(emphases omitted)).

In Thiry v. Carlson, 78 F.3d 1491, 1495–1496 (10th

Cir. 1996), the required relocation of a gravesite

wasn’t a substantial burden because plaintiffs’

religious beliefs didn’t prohibit relocation and they

admitted they could voluntarily relocate. In Oklevueha

Native American Church of Hawaii, Inc. v. Lynch, 828

F.3d 1012, 1017 (9th Cir. 2016), there was no

substantial burden where an alternative means of

sacramental practice was available: “We fail to see

how prohibiting a substance that [plaintiffs] freely

admit is a substitute would force them to act at odds

with their religious beliefs.” (emphasis added). In

Henderson v. Kennedy, 253 F.3d 12, 16–17 (D.C. Cir.

2001), plaintiffs’ beliefs didn’t require them to sell Tshirts in any particular place, so a ban on sales on the

National Mall was “at most a restriction on one of a

multitude of means” and “not a substantial burden.” It

did not “prevent[] them from engaging in conduct their

religion requires.” Id. at 17.

None of these cases authorized government or

courts to second-guess a claimant’s religious beliefs

about what counts as an adequate substitute. Cf. Holt

v. Hobbs, 574 U.S. 352, 361 (2015) (rejecting prison’s

assertion that “availability of alternative means of

practicing [Islam]”—such as having a prayer rug and

access to a religious diet—defeated a substantialburden claim).

The substantial burden test’s five threshold

elements—exercise, religiosity, sincerity, burden, and

substantiality—play a gatekeeping role for claims.

Though not onerous, each must be satisfied before a

plaintiff can put the government to its burden of

showing a compelling interest and least restrictive

means. As limiting principles, they enable courts to

fulfill the promise of broad religious liberty protection

while screening out unwarranted exemption claims.

And they preclude the need for courts to second-guess

the policy choices embodied in the Religious Clauses

and their implementing statutes by imposing extratextual limits on the substantial burden test.

II. The Fifth Circuit misconceived the

substantial burden analysis.

The Fifth Circuit’s decision in Perez misapplied the

substantial burden inquiry’s well-established limiting

principles. 4 There is no question that Perez and Torres

have satisfied the threshold requirements of exercise,

religiosity, and sincerity. The only disputed questions

are burden and substantiality. They and their

ancestors have engaged in sincere religious exercise at

this riverbend on the San Antonio River for centuries.

Pet. 5; Pet.App. 54a (Oldham, J., dissenting). The

4 The Fifth Circuit presumed that the City’s plan was not neutral

and generally applicable and therefore subject to strict scrutiny

under both TRFRA and the Free Exercise Clause. Pet.App. 42a.

court acknowledged that “Appellants require certain

religious ceremonies to be performed only at this

riverbend” and that the City’s planned changes to this

location “would irreversibly destroy the Sacred Area

and their ability to practice their religion there.”

Pet.App. 13a, 16a. Yet the Fifth Circuit—after citing

this Court’s decision in Lyng—denied that appellants

had shown a substantial burden because, in its view,

they “have virtually unlimited access” to other parts of

this municipal public park, and birds whose presence

is essential to certain rituals “are not specifically

targeted nor dissuaded from nesting nearby or

elsewhere” in the park. Pet.App. 18a–19a (emphasis

added).

As other Circuits have recognized, wholly

“prevent[ing],” “flatly prohibiting,” and “refus[ing] …

access” to religious exercise—all of which would result

from the City’s planned changes to the riverbend

here—“easily” qualify as a substantial burden.

Yellowbear, 741 F.3d at 55–56.

This is exactly the kind of government-control case

where a failure to accommodate creates a burden on

religious exercise. Because the government controls

the park, its refusal to accommodate religious practice

burdens religious exercise. That burden only

magnifies—it does not lessen—if the site is destroyed,

rendering the government’s interference permanent

and irreversible. That is a substantial burden, and the

court low Fifth Circuit was wrong to conclude

otherwise. Six Fifth Circuit judges agreed, dissenting

from the denial of rehearing en banc: “‘[V]irtually

unlimited access to the park’ is useless if the park’s

Sacred Area is destroyed.” Pet.App. 57a (Oldham, J.,

dissenting).

The Supreme Court recently corrected a similar

mistake made by the Fourth Circuit, which held in

Mahmoud v. McKnight that a religious burden was

only cognizable if the government “coerces” religious

practitioners “to believe or act contrary to their

religious views.” 102 F.4th 191, 208 (4th Cir. 2024).

This Court rejected as “alarmingly narrow” the notion

that the right to religious liberty offers “nothing more

than protection against compulsion or coercion to

renounce or abandon one’s religion.” Mahmoud, 606

U.S. at 558.

Unlike here, the challenged government policy in

Mahmoud did not make the plaintiffs’ religious

exercise impossible—just more expensive and timeconsuming. See id. at 561–562. Yet this Court had no

trouble finding that this non-coercive burden on

religious exercise was sufficient, as “[t]he loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Id. at 569 (quoting Roman Catholic Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per

curiam)). If a mere increase in cost and inconvenience

was enough to establish a substantial burden in

Mahmoud, the policy at issue here, which would

render petitioners’ religious exercise permanently

impossible, is a substantial burden a fortiori.

As with the Fourth Circuit’s decision in Mahmoud,

the Fifth Circuit’s decision in Perez got the religious

burden analysis wrong. This Court should take the

opportunity to correct that error and clarify that

making a religious practice impossible always

constitutes a substantial burden, even when an

ancient religious site now sits on government land.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.