Note

A Case of Mistaken Authority: Reconciling Illinois v. Rodriguez, Originalism, and the Common Law

In the last few decades, the Supreme Court has largely turned to a history-based, originalist approach to the Fourth Amendment. Many scholars have been quick to laud the change, criticize the methodology, or argue their views of the historical record. But few have taken the time to catalogue what historical sources and evidence the Supreme Court has found persuasive in its originalist cases. This Note does so. It takes the Court’s originalist methodology as a given and recognizes that historical analysis has become a key part of the Court’s Fourth Amendment jurisprudence. So, this Note analyzes various originalist opinions of the Court to compile a set of tools that litigants should be using when arguing Fourth Amendment issues.

This Note then undertakes to apply these tools in an area where the Court has not. In Illinois v. Rodriguez, the Court established its doctrine of apparent-authority consent. But the case was decided under a non-originalist framework. Using the Court’s preferred historical sources, this Note argues that Rodriguez’s approach to apparent-authority consent was unknown to the common law of trespass, searches, and seizures. And if apparent authority would not have excused a trespass at common law, it should not excuse a government search now. Thus, doctrine and methodology conflict regarding apparent-authority consent. In response, this Note advances a few possible ways to harmonize that inconsistency.

Introduction

In its recent Fourth Amendment cases, the Supreme Court has increasingly turned toward a theory of Fourth Amendment originalism to determine the meaning of the constitutional protection against unreasonable searches and seizures.1 1.David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000).Show More Championed by Justice Antonin Scalia,2 2.Id.Show More Fourth Amendment originalism is based upon one fundamental principle: “The Amendment ‘must provide at a minimum the degree of protection it afforded when it was adopted.’”3 3.Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)).Show More

To figure out what that minimum degree of protection is, the Court has frequently undertaken historical surveys of the Founding-era common law of trespass, searches, and seizures.4 4.See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001).Show More Of course, the Court has recognized that common law rules are not always clear.5 5.Lange, 141 S. Ct. at 2022.Show More However, in the cases where the Court has found that the common law definitively declared that a certain type of search or seizure was or was not reasonable, that determination has been all but dispositive.6 6.See Atwater, 532 U.S. at 345 n.14.Show More In those cases, litigants can win game, set, and match by convincing the Court of their understanding of the historical legal record.

While Fourth Amendment originalism had a distinguished pedigree in the Court’s early search and seizure jurisprudence, it was largely discounted during the Warren and Burger Courts.7 7.Sklansky, supra note 1, at 1740–41.Show More As such, many cases decided during the mid- to late-twentieth century were litigated on a jurisprudential rubric that differs substantially from much of the Court’s current approach to deciding Fourth Amendment questions.

This leads to a few natural questions. What tools should litigants use to argue Fourth Amendment search and seizure cases under the now-ascendant originalist framework? And how do many of the Court’s older precedents stack up in light of this revived history-based approach? Does the Founding-era common law support those decisions? Further, how should people react when it seems that current cases do not ensure that the Fourth Amendment provides “the degree of protection it afforded when it was adopted”?8 8.Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411).Show More

This Note undertakes to answer these questions. While much recent originalist scholarship is quick to provide historical evidence it argues the Court should find persuasive, this Note inverts the analysis, first cataloguing the various types of sources the Court has regularly used to determine the content of the common law and then presenting them to litigants as primary tools to be used in making history-based legal arguments. Then, as a case study, this Note takes those tools and applies them to Illinois v. Rodriguez,9 9.497 U.S. 177 (1990).Show More a case decided just before the Court began to shift its focus toward a history-based approach. In Rodriguez, which established the Court’s current doctrine regarding apparent-authority-consent searches, the Court held that police may constitutionally search a person’s home pursuant to consent obtained from someone who the officers reasonably, but mistakenly, believed had the requisite authority to consent.10 10.Id. at 188–89.Show More However, using a mixture of well-known and rarely or never-before cited historical evidence, including early American and British case law, this Note argues that Rodriguez’s holding does not fit comfortably within the Founding-era common law of searches and seizures. But it proposes a few ways to reach a sort of harmony.

Thus, this Note proceeds in five Parts. Part I introduces the doctrine of consent and apparent authority. Part II examines how the Court has increasingly looked to history and the common law to determine whether a search is reasonable or not under the Fourth Amendment. Part III catalogues the common tools and methods that the Court has used to determine what the content of the Founding-era common law of searches and seizures actually was. Part IV uses those tools to argue that apparent authority would not have excused an officer’s trespass onto someone’s land, making that trespass an unreasonable search at common law. Finally, Part V discusses the possible implications that this research may have for apparent-authority-consent-search doctrine.

  1.  David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1743 (2000). ↑
  2.  Id. ↑
  3.  Lange v. California, 141 S. Ct. 2011, 2022 (2021) (quoting United States v. Jones, 565 U.S. 400, 411 (2012)). ↑
  4.  See, e.g., id. at 2022–24; Wilson v. Arkansas, 514 U.S. 927, 931–36 (1995); Atwater v. City of Lago Vista, 532 U.S. 318, 326–45 (2001). ↑
  5.  Lange, 141 S. Ct. at 2022. ↑
  6.  See Atwater, 532 U.S. at 345 n.14. ↑
  7.  Sklansky, supra note 1, at 1740–41. ↑
  8.  Lange, 141 S. Ct. at 2022 (quoting Jones, 565 U.S. at 411). ↑
  9.  497 U.S. 177 (1990). ↑

  10.  Id. at 188–89. ↑

The Impermissibility of Sex as a Voter Qualification

Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender nonconforming voters. This Note presents a fifty-state survey of voter ID laws and shows that there is no legal basis for using a mismatch or perceived mismatch between a voter’s documented sex and their gender presentation to deny the franchise. No language in any state statute indicates that an individual’s sex is required as evidence of their identity. Furthermore, this Note argues that changing the statutes to require sex as an identity qualifier would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. First, such a requirement would amount to sex discrimination as that term is best understood in light of Bostock v. Clayton County. Second, under the Supreme Court’s voting rights jurisprudence, such a requirement would constitute an invidious restriction on the right to vote, triggering strict scrutiny under Harper v. Virginia Board of Elections. Even if it did not amount to such a restriction, the requirement of sex as a voter qualification would still be struck down under the sliding scale scrutiny of the Anderson-Burdick doctrine. Thus, hinging the right to vote on the verification of one’s sex is almost certainly unconstitutional.

“What is most important is to cease legislating for all lives what is livable only for some, and similarly, to refrain from proscribing for all lives what is unlivable for some.”1 1.Judith Butler, Undoing Gender 8 (2004).Show More

Introduction

Jane Doe, like many other Mecklenburg County, North Carolina residents, set out to cast her ballot in the county’s November 2019 general election.2 2.Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7].Show More A run-of-the-mill local race in a state without a voter ID requirement should have been nothing special; a simple trip to the polls. However, when she attempted to cast her ballot, the chief precinct judge stopped her and demanded to see her ID.3 3.Id.Show More His reasoning? Her face did not match the name she provided.4 4.Id.Show More Since her transition fourteen years ago, Doe had been living publicly as a woman—but rather than treating her like any other woman, the precinct judge insisted she present proof beyond that required by law to convince him she was who she said she was.5 5.Id.Show More Though Doe’s license had a photo consistent with her female identity, the name on her ID—her deadname,6 6.Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”).Show More which she was in the process of legally changing7 7.Henderson, supra note 2.Show More—was stereotypically male. The tense exchange between Doe and the precinct judge drew a crowd.8 8.Id.Show More Almost an hour after she arrived at the polls, and after handing over her license to be scrutinized, Doe cast her ballot and returned to her car in tears, rushing past the bystanders who had observed her humiliation.9 9.Id.Show More

Doe is not alone in facing discrimination at the polls because she is transgender. During Vermont’s 2018 gubernatorial race,10 10.This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S].Show More a poll worker refused to provide a ballot to a transgender woman because they thought her name was fake, not believing she was really female.11 11.Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU].Show More Ten years ago, when first-time voter Oliver headed to the polls in Maryland, the poll worker balked, telling Oliver it couldn’t be his ID because it displayed an “F” gender marker.12 12.Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says, NBC News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864].Show More Oliver is trans masculine and, though he had legally changed his name, he had not yet updated the gender marker on his state-issued ID.13 13.Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1.Show More As Oliver described it, most people perceived him as male at that time due to his physical transition. Despite the “misalignment” between his license and his gender presentation, he expected he would be able to vote and came prepared to handle any resistance at the polls.14 14.Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id.Show More Though ultimately permitted to cast his ballot, Oliver was ordered to “stand aside” for over an hour while the poll workers deliberated on whether or not they would allow him to vote.15 15.Moreau, supra note 12.Show More All three of these humiliating experiences lacked any legal grounding. In each instance, election officials exercised their discretion to verify voter identity in an unauthorized way.

Decades ago, the United States Supreme Court established that the Constitution protects the “right of all qualified citizens to vote.”16 16.Reynolds v. Sims, 377 U.S. 533, 554 (1964).Show More This right is so central that its abridgment or denial renders all other rights, even the most basic, “illusory.”17 17.Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)).Show More And while the right to vote is arguably under attack in several ways,18 18.See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril, ACLU (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ].Show More things have reached a tipping point for transgender and gender nonconforming voters. This Note illustrates that there is currently no basis in state law to turn away a voter for a perceived mismatch between the sex listed on their ID and their gender presentation. And in the event a state attempted to enact such a law, this Note argues that it would run afoul of the Equal Protection Clause.

Part I contextualizes the difficulty transgender and gender nonconforming people face in the political process by cataloging voter ID laws across the United States and detailing the hurdles in place that make it challenging for individuals to acquire an accurate ID. Part II presents a novel analysis of these voter ID laws to show what evidence is required to verify one’s identity at the polls. This survey reveals the stark absence of any statutory language indicating that an individual’s sex19 19.I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex,102 N.C. L. Rev. 335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. 831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)).Show More is required as necessary evidence of their identity. Nonetheless, at least some election officials are using sex as a criterion when verifying a voter’s identity. This has two consequences for transgender and gender nonconforming voters: (1) an election official may engage in sex stereotyping when evaluating a transgender voter’s ID, denying them a ballot as a result, and (2) any perceived mismatch between the voter’s gender presentation and the gender marker listed on their ID can be used as a reason to deny them the right to vote. No matter the motivation, such an exercise of discretion is impermissible, having no basis in state law.

The statutes surveyed in Part II could of course be changed. Assuming states started to require sex as a qualifier of voter identity, Part III argues such a regime would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. As Section III.A addresses, such a requirement can be classified as sex discrimination following the Supreme Court’s decision in Bostock v. Clayton County.20 20.140 S. Ct. 1731 (2020).Show More Because Bostock “fundamentally redefin[ed] what it means to discriminate on the basis of sex under the Equal Protection Clause,”21 21.Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev. 407, 438 (2022).Show More its logic can be extended through the Nineteenth Amendment to protect transgender and gender nonconforming voters. Though this framework is persuasive, this Note asserts that it is not proactive in addressing the threat posed at the polls.

Section III.B posits an alternative and novel equal protection argument. At the core of the Supreme Court’s voting rights jurisprudence is the maxim that all voters must be accorded an equal vote.22 22.See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)).Show More This has been reinforced several times over, most notably in Harper v. Virginia Board of Elections23 23.383 U.S. 663, 665 (1966).Show More and Bush v. Gore.24 24.531 U.S. 98, 98 (2000).Show More Building on these cases, this Note advances two arguments: (1) requiring sex as an identity qualifier is an “invidious restriction” on the right to vote that triggers strict scrutiny under Harper and must be held unconstitutional, and (2) even if sex as a qualifier does not rise to the level of “invidious” discrimination, such a requirement will still fail when subjected to the sliding scale scrutiny of Anderson-Burdick.25 25.In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024).Show More To the extent sex is conceived of as a “voter qualification,” hinging the right to vote on its verification is almost certainly unconstitutional.

This Note concludes by imagining a way forward. There are simple and easily deployed measures states can take both to ensure transgender and gender nonconforming constituents have unhindered access to the polls and to promote election integrity. California is an exemplar here. Though not a voter ID state, California has promulgated guidance for its election officials that directly addresses how to handle potential questions or issues regarding a voter’s gender identity. This guidance helps rein in the discretion of poll workers and functions as a template that other states can implement. By adopting similar guidance, states would manage transgender and gender nonconforming voters more uniformly and fairly going forward. The successful voter identification system California has in place helps demonstrate why requiring sex as an identity qualifier makes little sense; rather than introducing a qualifier that may be difficult to verify or leave a state in the crosshairs of the Fourteenth Amendment, a state need only provide guidance similar to California’s to guide its poll workers in serving a diverse electorate.

  1.  Judith Butler, Undoing Gender 8 (2004). ↑
  2.  Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7]. ↑
  3.  Id. ↑
  4.  Id. ↑
  5.  Id. ↑
  6.  Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”). ↑
  7.  Henderson, supra note 2. ↑
  8.  Id. ↑
  9.  Id. ↑
  10.  This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S]. ↑
  11.  Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU]. ↑
  12.  Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says,
    NBC

    News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864]. ↑

  13.  Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1. ↑
  14.  Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id. ↑
  15.  Moreau, supra note 12. ↑
  16.  Reynolds v. Sims, 377 U.S. 533, 554 (1964). ↑
  17.  Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)). ↑
  18.  See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril,
    ACLU

    (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ]. ↑

  19.  I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex, 102 N.C. L. Rev
    .

    335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev

    .

    831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)). ↑

  20.  140 S. Ct. 1731 (2020). ↑
  21.  Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev
    .

    407, 438 (2022). ↑

  22.  See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)). ↑
  23.  383 U.S. 663, 665 (1966). ↑
  24.  531 U.S. 98, 98 (2000). ↑

  25.  In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024). ↑

Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three preexisting theories from like-minded critics of Lyng and analyzes the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test that modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

Introduction

The Supreme Court’s treatment of Indigenous sacred sites in the free exercise realm1 1.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”).Show More is fatal both in theory and in fact. In its most recent decision in Lyng v. Northwest Cemetery Protective Ass’n,2 2.485 U.S. 439 (1988).Show More the Court authorized the government to proceed with a construction project that would damage a Native American3 3.I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note.Show More sacred site on federal land.4 4.Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449.Show More In its opinion, the Court briefly acknowledged that Native American religious practices are “inextricably bound up with the unique features of the . . . area.”5 5.Id. at 451.Show More But in giving the government the green light to bulldoze a sacred site on federal land, the Court failed to meaningfully consider inherent distinctions between Native American religions and their Western counterparts. This Note argues that the legal standard established in Lyng kills most sacred site claims in the first instance because it fails to account for unique aspects of Native American sacred sites. In response, this Note proposes a modification to the legal standard to correct this problem and put Native Americans’ religious claims over sacred sites on equal footing with those of other religious claimants.

When contemplating Native American free exercise issues, it is important to understand that each Native American religion incorporates its own values, beliefs, and traditions into its practice.6 6.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023).Show More Yet there are commonalities across these religions, one of which is the importance of sacred sites.7 7.See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”).Show More Sacred sites are specific locations with unique religious and cultural significance.8 8.The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023).Show More Their existence is not exclusive to Native American religions, but the term’s connotation in such religions is unlike that embraced by most other religious groups.9 9.Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL].Show More For instance, Jerusalem is considered a sacred site in Christianity largely because of its rich history and centrality to the story of Jesus Christ’s death and salvation.10 10.What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N].Show More In contrast to Christianity and other major religions, the importance of sacred sites to Native American religions centers not around history or traditions, but rather, the individual spirits ever-present in sacred lands.11 11.King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”).Show More This stems from the notion that Native American religions do not distinguish between the real world and the supernatural—the two dimensions are inherently intertwined.12 12.Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023).Show More Accordingly, each sacred site is markedly different from the next, possessing its own distinct spiritual beings and religious qualities.13 13.See King, supra note 9.Show More

Due to their incomparable religious worth, sacred sites are typically reserved for certain religious practices such as ceremonies and pilgrimages,14 14.Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF].Show More or left undisturbed entirely so as to not “disrupt[] the lives of deities” therein.15 15.Id.Show More Altering or destroying an Indigenous sacred site strips it of its spiritual essence,16 16.See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”).Show More signifying to worshippers that their “prayers will not be heard”17 17.Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)).Show More or their “ceremonies will be ineffective to prevent evil and disease,”18 18.Id.Show More among other potentially devastating impacts. Thus, preservation of sacred sites is essential to Native Americans’ ability to practice their respective religions, and irreparably damaging a sacred site can functionally eliminate a Native American religious group’s ability to freely exercise their religion.19 19.See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”).Show More

Despite the potentially catastrophic consequences of destroying sacred sites on religious freedom, free exercise claims seeking the protection of Indigenous sacred sites have seldom succeeded following the Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Ass’n.20 20.485 U.S. 439 (1988).Show More In Lyng, Native American tribes brought a claim that the government’s construction project on a sacred site located on federally owned land violated their free exercise rights guaranteed by the First Amendment.21 21.Id. at 443.Show More The majority struck down this challenge, rejecting the claimants’ argument that the government imposed a substantial burden on their free exercise rights since they were not “coerced by the Government’s action into violating their religious beliefs.”22 22.Id. at 449.Show More Rather, it held that an individual has only been coerced into violating their religious beliefs if the government threatened to impose penalties for noncompliance.23 23.Id. at 440.Show More

Since Lyng, courts have repeatedly struck down free exercise claims involving Native American sacred sites,24 24.See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site).Show More reaffirming the notion that the government has imposed a substantial burden on a Native American party’s free exercise rights concerning a sacred site only when the government action amounts to an affirmative act of coercion under threat of sanctions.25 25.Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions).Show More Although Congress subsequently passed multiple laws aimed at protecting religious freedom,26 26.See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”).Show More including one directed specifically at Native American religious liberty,27 27.See American Indian Religious Freedom Act, 42 U.S.C. § 1996.Show More these statutes have also failed to create a judicially enforceable cause of action.28 28.See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”).Show More

This Note argues for a change in the Supreme Court’s characterization and treatment of sacred sites in free exercise cases. Part I provides a background of free exercise jurisprudence and legislation pertaining to Native American sacred sites. It presents an overview of the substantial burden test established originally in Sherbert v. Verner29 29.374 U.S. 398 (1963).Show More and Wisconsin v. Yoder30 30.406 U.S. 205 (1972).Show More and adopted in Lyng and its progeny, followed by an analysis of failed statutory attempts to protect Native American religious liberty. Part I also highlights why Lyng’s failure to protect free exercise rights calls for a reformulation of sacred site claims within the contours of the Sherbert/Yoder test. Part II provides a synopsis of existing proposed alternatives to the Lyng majority’s substantial burden test for sacred site free exercise claims. It analyzes and critiques theories posited by Justice Brennan in the Lyng dissent, Professor Alex Tallchief Skibine, and Professors Stephanie Barclay and Michalyn Steele. Part III synthesizes the benefits and drawbacks of the approaches laid out in Part II. Building off this analysis, it offers a new test which broadens the definition of “coercion” for land-based claims within the substantial burden framework. This test will put Native American sacred site claims on equal footing with other religious claims but remains sufficiently narrowly tailored to address concerns of overexpanding free exercise rights generally.

  1.  U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”). ↑
  2.  485 U.S. 439 (1988). ↑
  3.  I predominantly use the term “Native American” or “Indigenous” throughout the piece to refer to Native Peoples. Many cases referenced use the term “Indian.” I consider all these terms interchangeable for purposes of the Note. ↑
  4.  Lyng, 485 U.S. at 458 (holding that the government may permit timber harvesting and road construction on a Native American sacred site). The applicability of Lyng’s holding is limited to sacred sites on “publicly owned land.” Id. at 449. ↑
  5.  Id. at 451. ↑
  6.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/TV8G-XZZS] (last visited Nov. 20, 2023). ↑
  7.  See Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Mich. J. Race & L. 269, 269 (2012) (“Protection of ‘sacred sites’ is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples.”). ↑
  8.  The Protection of Indian Sacred Sites, Advisory Council on Hist. Pres., https://www.ach‌p.gov/indian-tribes-and-native-hawaiians/protection-indian-sacred-sites [https://perma.cc/J5‌K7-SJV8] (last visited Nov. 20, 2023). ↑
  9.  Thomas F. King, “Sacred Sites” Protection: Be Careful What You Ask For, Sacred Land Film Project (May 28, 2002), https://sacredland.org/wp-content/uploads/2017/07/Thomas_‌King-1.pdf [https://perma.cc/W5GK-SXTL]. ↑
  10.  What Makes Jerusalem So Holy?, BBC (Oct. 30, 2014), https://www.bbc.com/news/worl‌d-middle-east-26934435 [https://perma.cc/CUQ5-7KD2]; The Holy Land, Libr. of Cong. (Nov. 15, 2010), https://www.loc.gov/rr/amed/guide/hs-holyland.html#:~:text=For%20the%‌20Christian%2C%20the%20Holy,to%20have%20ascended%20to%20heaven [https://perma.‌cc/X5VG-AZ6N]. ↑
  11.  King, supra note 9; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 460–61 (1988) (Brennan, J., dissenting) (“Where dogma lies at the heart of Western religions, Native American faith is inextricably bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being.”). ↑
  12.  Native American Religions, Dialogue Inst., https://dialogueinstitute.org/native-american-religions [https://perma.cc/PC23-PDP8] (last visited Nov. 20, 2023). ↑
  13.  See King, supra note 9. ↑
  14.  Rosalyn R. LaPier, What Makes a Mountain, Hill or Prairie a ‘Sacred’ Place for Native Americans, Observer (Feb. 20, 2017, 11:43 AM), https://observer.com/2017/02/what-makes-a-mountain-hill-or-prairie-a-sacred-place-for-native-americans/ [https://perma.cc/WUL5-HR‌BF]. ↑
  15.  Id. ↑
  16.  See Teisha Cloos, Destruction of Indigenous Sacred Site in the U.S. Heard Before Federal Court, Nat’l Indigenous Times (Nov. 17, 2021), https://nit.com.au/17-11-2021/2532/destructi‌on-of-indigenous-sacred-site-in-the-u-s-heard-before-federal-court [https://perma.cc/BS56-Q‌93Q] (“[W]ithout our sacred land, our religious traditions will be lost.”). ↑
  17.  Amber L. McDonald, Note, Secularizing the Sacrosanct: Defining “Sacred” for Native American Sacred Sites Protection Legislation, 33 Hofstra L. Rev. 751, 751 (2004) (quoting Badoni v. Higginson, 638 F.2d 172, 177 (10th Cir. 1980)). ↑
  18.  Id. ↑
  19.  See Stephanie Hall Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, 134 Harv. L. Rev. 1294, 1305 (2021) (“The practices attached to that specific locale are not portable. They must be performed in those places or the essential rites and the animating beliefs behind the rites are, by compulsion, extinguished.”). ↑
  20.  485 U.S. 439 (1988). ↑
  21.  Id. at 443. ↑
  22.  Id. at 449. ↑
  23.  Id. at 440. ↑
  24.  See, e.g., Apache Stronghold v. United States, No. 21-15295, slip op. at 27 (9th Cir. Mar. 1, 2024) (en banc), aff’g 38 F.4th 742 (9th Cir. 2022) (rejecting a claim seeking to prohibit construction of a copper mine on sacred ground); Badoni v. Higginson, 638 F.2d 172, 177–79 (10th Cir. 1980) (rejecting a claim that the government’s management and allowance of public access to a sacred monument and nearby lake has desecrated its sacredness); Slockish v. U.S. Fed. Highway Admin., No. 08-cv-01169, 2018 WL 2875896, at *1–2 (D. Or. June 11, 2018) (denying relief for plaintiffs seeking to enjoin a highway construction project on a sacred site). ↑
  25.  Apache Stronghold, slip op. at 27 (holding that the Tribe’s claim fails under Lyng because it does not coerce them to act contrary to their beliefs under threat of sanctions). ↑
  26.  See Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb–2000bb-4 (“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–2000cc-5 (“No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”). ↑
  27.  See American Indian Religious Freedom Act, 42 U.S.C. § 1996. ↑
  28.  See Lyng, 485 U.S. at 455 (“[The American Indian Religious Freedom Act (“AIRFA”) does] not ‘confer special religious rights on Indians,’ [does] ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’” (quoting 124 Cong. Rec. 21444–45 (1978))); see also Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir. 1983) (“AIRFA requires federal agencies to consider, but not necessarily to defer to, Indian religious values.”). ↑
  29.  374 U.S. 398 (1963). ↑

  30.  406 U.S. 205 (1972). ↑

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