Recent Developments in U.S. Free Exercise Jurisprudence for Native American Religion

Michalyn Steele is Marion G. Romney Professor of Law at the J. Reuben Clark Law School, Brigham Young University. This post is based on a presentation given at the ICLRS 32nd Annual International Law and Religion Symposium, 6 October 2025.

Several recent unpublished U.S. federal court opinions have responded to claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the U.S. Constitution’s Free Exercise Clause by incarcerated Native American practitioners. The RLUIPA, enacted by Congress in 2000, provides that governments may not impose a substantial burden on the religious exercise of persons confined to institutions unless the government can demonstrate that the burden is in furtherance of a compelling governmental interest and is narrowly tailored to further that interest. Incarcerated practitioners of Native American religion have been able to get access to sweat lodges and other aspects of Native religious practice and to have certain religious practices accommodated under the law.

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Moving Toward Anti-Separation of Religion and State: Frank Ravitch on the Current U.S. Supreme Court

Frank Ravitch (Michigan State University College of Law) discusses America’s shift from moderate separationism to an anti-separationist approach to religion-state relations. According to Ravitch, the victimhood of social conservatives not only drives the Supreme Court’s current majority to an increasingly anti-establishment stance but also results in strong politicization of the Court and its decisions. Ravitch explains how recent First Amendment decisions, including Mahmoud v. Taylor (more because of bias evident in the majority opinion rather than the decision itself), contribute to this trend and predicts that the Court will eventually overturn Smith v. Employment Division and constitutionalize Burwell v. Hobby Lobby. He also touches on an alternative approach to both the current anti-establishment drift and radical separationism.

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The Students for Fair Admissions Cases at The Supreme Court: Commentary by Paul Gowder

On 29 June 2023, the United States Supreme Court issued a decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, declaring race-based college affirmative action programs unconstitutional. In a 6-3 vote, the justices held that the admissions programs at these universities violated the Equal Protection Clause of the Fourteenth Amendment. Paul Gowder of Northwestern Pritzker School of Law criticizes the decision, but also the use of diversity as a justification for affirmative action. Gowder argues that there are ethically better justifications for affirmative action and explains where he sees hope for advancing equality in U.S. higher education.

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