Interesting Dissent in American Indian Religious Case Under Texas RFRA
From a dissent from rehearing en banc Friday in Perez v. City of San Antonio, by Fifth Circuit Judge Andrew Oldham, joined by Chief Judge Jennifer Walker Elrod and Judges Jerry Smith, Stephen Higgenson, Don Willett, and James Ho:
The City of San Antonio plans to destroy a sacred Native American religious site. The burdens on plaintiffs' religious freedoms are undeniable. But a panel of our court dismissed them. In my view, this easily meets the standard for en banc rehearing. And I respectfully dissent from the majority's contrary view….
Gary Perez and Matilde Torres are members of the Lipan-Apache Native American Church. "For centuries, [their] ancestors have gathered at a specific bend along the [San Antonio] River to meditate, worship, and pray." Specifically, church members understand "the trees and cormorants that occupy a twenty-foot by thirty-foot area" near the River to be "the 'axis mundi,'" a bridge between this world and the after-life. These elements form a cohesive "spiritual ecology;" the trees' roots "go into the underworld, underneath the earth," before "ris[ing] all the way up into the heavens," while the cormorants signify "a spirit … [that] scattered life-giving water across the San Antonio River Valley" in the church's creation story. As in many faiths, the trees and cormorants' religious significance to the Native American Church turns on a tight relationship between the sign and the thing signified—"ceremonies cannot be properly administered without specific trees present and cormorants nesting."
The City of San Antonio owns the land on which this sacred site rests, called Brackenridge Park. In 2022, the City announced "reformation efforts" in the Park. Among other things, the City plans to uproot most of the trees in the sacred area and deploy "pyrotechnics, clappers, spotlights, lasers, distress calls, effigies, balloons, explosives, and drones" to keep the cormorants away. The City maintains that this campaign "[will] not harm the birds." But the City concedes that its heavy artillery is intended to and likely will prevent cormorants from nesting in the Sacred Area.
Recognizing a grave threat to their religious practices, Perez and Torres sued under, inter alia, the Texas Religious Freedom Restoration Act ("TRFRA"). They sought an injunction preventing the City from moving forward with its destructive campaign…. [A Fifth Circuit panel decision] held that the City's campaign of tree removal, pyrotechnics, lasers, and explosives would not substantially burden the plaintiffs' religious practice and, even if it did, the City's deforestation and artillery were the least restrictive means of furthering its compelling need to repair the park….
That's wrong on both counts. But the substantial-burden point is the most egregious. First, the City's plan substantially burdens religious conduct under any reading of TRFRA. Second, the panel majority's faulty substantial burden analysis poses a particularly acute risk to minority faiths. Third, the better approach is to apply the same standards to all people.
First, the existence of a substantial burden. Under TRFRA, a burden is "substantial if it curtails religious conduct and impacts religious expression to a 'significant' and 'real' degree." And burden is considered from "the person's perspective, not from the government's." This is not a high bar for religious observers. The government can still prevail if it can show that it's using the least-restrictive means to pursue a compelling interest. But the law requires the government to bear that burden; it requires relatively little from would-be worshipers.
Nobody disputes that plaintiffs' religious practice at the Sacred Area "relies on the presence of trees [and] birds," even down to "specific trees." So nobody should dispute that destroying most of the trees, relocating others, and targeting the birds with a campaign of pyrotechnics and explosives objectively burdens plaintiffs' worship. To 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.
Second, the panel majority's contrary analysis is wanting. In the few sentences the majority devoted to substantial burden, the panel noted that plaintiffs "continue[ ] to have virtually unlimited access to the park," that "no cormorants … inhabit [the park] for extended periods of time each year," and that "cormorants are not specifically targeted" and may "nest[ ] nearby or elsewhere in the 343-acre Park."
Respectfully, these are non sequiturs. "[V]irtually unlimited access to the park" is useless if the park's Sacred Area is destroyed. That cormorants do not nest in the park for "extended periods" is interesting, but the City intends to permanently drive off the birds with pyrotechnics and lasers. And plaintiffs' ability to go "elsewhere in the 343-acre Park" misses the point entirely: their practice relies on the unique spiritual ecology of this riverbend…. "To the extent the majority suggests that Appellants can obtain spiritual fulfilment by exercising their religious beliefs in a manner contrary to their testimony, such reasoning is forbidden." … One searches this analysis in vain for a "granular focus on the specific facts, practices, and interests" at stake.
But there's more at play here than just misreading TRFRA. Does anyone imagine, for instance, that a court would deem insubstantial a ban on accessing the Lord's Table because congregants can still sit in the pews? Could the government ban baptisms as long as Christians have "virtually unlimited access" to water? Or could the State ban Lord's Day services because the church is empty six days a week? These are judgment calls we simply do not make. And if the government were to padlock a church on the theory that Christians could worship elsewhere, we would not hesitate to hold it unlawful: "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."
Yet in singling out plaintiffs' beliefs for dismissal, the panel joins an unfortunate line of cases treating "the distinctive qualities of Indigenous religious practices regarding sacred sites" as a reason to deny relief. The encouragement to simply worship "elsewhere" reflects this unfortunate tendency.
As Justice Gorsuch recently noted in Apache Stronghold v. United States (2025) (dissenting from denial of certiorari), many American Indians "live far from Washington, D.C., and their history and religious practices may be unfamiliar to many. But that should make no difference." Here, treating all religions alike requires recognizing the Sacred Area's value to plaintiffs and the burden posed by the City's destructive plans, just as courts recognize the value of church attendance and the burden imposed by forbidding such attendance.
Third, respecting sacred sites—and recognizing the substantial burdens that attend their destruction—would not privilege Native American religions. Rather, it treats them equally. The law already recognizes that other believers have the right "to use their sacred sites in a manner consistent with their theological requirements, free from government interference." An obvious example is McCurry, which held barring the doors of a Christian church obviously and substantially burdens religion. And courts already prohibit objective governmental interference with religious volunteerism in the context of non-Indigenous faiths. For example, imposing mandatory LGBTQ+ instruction can substantially burden families with contrary religious beliefs. Mahmoud v. Taylor (2025). The threat of a small criminal fine is a substantial burden on Amish families who do not want to send their kids to public school. Wisconsin v. Yoder (1972). And the prohibition on bringing a kirpan to a government workplace substantially burdens a Sikh IRS agent. Tagore v. United States (5th Cir. 2013).
It is no answer to say the substantial-burden analysis should be different when the government owns the place where individuals worship, as it owns Brackenridge Park. Courts routinely recognize substantial burdens on religious practice in prisons, the military, and zoning decisions—even though the government has plenary power and coercive control over those areas. The substantial burdens recognized in those areas include denying scented oils and sweat lodges in prisons, denying Sikh turbans in the military, and denying zoning approval for church expansions.
Why apply a different, less-protective standard to people of Indigenous faiths? And if we're applying the same standard to people of all faiths, can it seriously be said that bulldozing a sacred site and artillery-blasting the cormorants in a church's creation story is somehow less burdensome than the five-dollar fine in Yoder or the workplace kirpan ban in Tagore or the denial of scented oils in prisons?
Here's the panel opinion's view on the substantial burden question (written by Judge Carl Stewart and joined by Judge Priscilla Richman); it may also indicate why Lyng v. N.W. Indian Cemetery Protective Ass'n (1988), which (to oversimplify) held that the government's management of its own land generally can't be viewed as a "substantial burden" on religious practice for Free Exercise Clause purposes, wasn't substantially discussed in this Texas RFRA case:
Appellants did not sufficiently establish a substantial burden. Appellants emphasize that if the City were permitted to proceed with its tree removal and rookery management procedures, the measures would irreversibly destroy the Sacred Area and their ability to practice their religion there. To bolster these contentions, they cite caselaw analyzing governmental actions that involve complete bans or prohibition of religious exercise. As is the case here, "[w]hen a restriction is not completely prohibitive, Texas law still considers it substantial if 'alternatives for the religious exercise are severely restricted.'" This court has held that according to [Barr v. City of Stinton (Tex. 2009)], "that means a burden imposing a less-than-complete ban is nonetheless substantial if it curtails religious conduct and impacts religious expression to a 'significant' and 'real' degree."
The City contends that "[w]hen analyzing whether a governmental body's activities on its own land impose a substantial burden on a plaintiff's religious beliefs, courts agree that the activity does not impose a substantial burden where it affects only the subjective religious experience of the plaintiff." The City argues "that a government's use of its own land does not substantially burden religious beliefs if the conduct is not coercive and impacts the subjective religious experience only." The City is correct to pinpoint that the proposed construction is indeed occurring on its own land. Still, Appellants are not merely alleging subjective religious experiences here. Moreover, because we are analyzing Appellants' claims under TRFRA, not the Religious Freedom Restoration Act ("RFRA"), the correct standard for evaluating substantial burden is not "coercion" but whether the burden is "real" and "significant." Compare Navajo Nation v. U.S. Forest Serv. (9th Cir. 2008) ("Where, as here, there is no showing the government has coerced the Appellants to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Appellants' religious beliefs, there is no 'substantial burden' on the exercise of their religion.") and Lyng v. N.W. Indian Cemetery Protective Ass'n (1988) ("It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment."), with Barr ("Thus defined, 'substantial' has two basic components: real vs. merely perceived, and significant vs. trivial.").
In analyzing Appellants' contention that the destruction of the tree canopies, where cormorants nest, and the driving away of the cormorants themselves will burden their religions, we consider whether they have met their burden of establishing a likelihood of success on their argument that the presupposed burden is real and significant. Under TRFRA, a burden is substantial if it is "real vs. merely perceived, and significant vs. trivial"—two limitations that "leave a broad range of things covered." The focus of the inquiry is on "the degree to which a person's religious conduct is curtailed and the resulting impact on his religious expression," as "measured … from the person's perspective, not from the government's." This inquiry is "case-by-case" and "fact-specific" and must consider "individual circumstances." "Federal case law interpreting RFRA and [the Religious Land Use And Institutionalized Persons Act ('RLUIPA')] is relevant."
While Appellants argue that the City's plan would destroy or alter natural resources of religious importance, they plainly failed to establish a likelihood of success on their position that the burden is real and significant under this circuit's case law. Indeed, Appellants did not even address this issue in their principal brief because they incorrectly assumed that the City would agree that its plans substantially burden their religious exercise.
Moreover, under our precedent, it is unclear that the burden on Appellants is significant. In A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist. (5th Cir. 2010), we determined that the challenged exemptions placed a significant burden on the plaintiff's religious conduct because the burden was both indirect and direct. As we explained, "because the District's exemptions directly regulate a part of [the plaintiff's] body and not just a personal effect … the burden on [his] religious expression is arguably even more intrusive." While we do not suggest that directness is dispositive, we note that here, the City's development plan only indirectly impacts Appellants' religious conduct and expression. Appellants continue to have virtually unlimited access to the Park for religious and cultural purposes. The record shows that, regardless of the rookery management program, no cormorants, due to their migration patterns, inhabit the area for extended periods of time each year. Further, cormorants are not specifically targeted nor dissuaded from nesting nearby or elsewhere in the 343-acre Park.
Mindful of the preliminary posture of this expedited appeal, we conclude that though the City's development plan may affect the nesting of cormorants within two acres of the 343-acre Park, Appellants did not meet their burden to show that they are likely to succeed on their claim that the plan constitutes a substantial burden of their religious exercise. Even if they did, that would not change the outcome of this appeal because the City's plan advances a compelling interest through the least restrictive means—and thus survives strict scrutiny….
The City argues that it has a compelling governmental interest in repairing the crumbling retaining walls on the northern bank of the riverbend, and that tree removal and relocation is an integral part of that plan. It further contends that the bird deterrence activities are necessary to protect the health and safety of citizens who visit the Park. The City avers that the purpose of the rookery management program is twofold: (1) to mitigate the health and safety hazards arising from the bird guano that dense bird colonies produce and (2) to ensure no migratory birds are nesting in trees within the Project Area such that work can begin under the Migratory Bird Treaty Act and the bond project improvements can proceed without delay….
You can also read further there about the compelling interesting question, both in the majority opinion and in Judge Oldham's panel dissent.