Liberty’s Blind Spot
Audra Lyn Savage September/October 2026During the past two decades, the Roberts Supreme Court has strengthened religious liberty for individuals and institutions, fueling optimism that this more robust religious liberty regime also means greater protection for minority religions. The Court has expanded free exercise protection by allowing public school officials to offer prayer after football games, and by allowing parents to opt their children out of public school lessons on religious grounds. The Court’s more expansive approach to religious liberty questions can also be seen in its steady retreat from strict church-and-state separation, and its requirement that religious entities should have the same access to taxpayer-funded programs as their secular counterparts.
An Easy Case That Wasn’t
Into this robust regime of religious liberty came, last summer, a case involving a straightforward violation of religious freedom rights.1 In fact, when Landor v. Louisiana Department of Corrections was added to the Supreme Court’s docket, many people believed this would be an easy decision in favor of a member of a minority faith. But alas, those hopes were dashed. The facts of this case were not complicated. Mr. Landor’s religious liberty was violated by the power of the state when he was forcibly held down as prison officials shaved his dreadlocked hair. As a Rastafarian believer, Mr. Landor had accepted the Nazirite vow, and for almost 20 years he had left his hair uncut. As the officials prepared to shave his head, Mr. Landor tried to explain that the state supreme court had allowed him to keep his dreadlocks while in prison as part of the practice of his faith. He even held a copy of that state court decision in his hands. The officials threw away the decision and then threw away Mr. Landor’s dignity. He had only three weeks remaining to serve on his sentence.
This was an especially egregious religious liberty violation, and many legal observers believed the Court would rule in favor of Mr. Landor. The key legal question before the Court was whether the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) allows a prisoner to sue individual prison officials personally for monetary damages.2
A 6–3 majority of the Court ruled against Mr. Landor, holding that the Constitution’s spending clause—the authority for Congress to promulgate RLUIPA—did not allow such damages. The Court said that the grant of federal money to a state agency (such as the Louisiana prison) operates like a contract between the U.S. government and the state agency—and this contract does not include the employees of the state agency. Therefore, the majority reasoned, a plaintiff can claim damages against only individual employees of a state agency for violations of religious liberty under RLUIPA when those employees have explicitly agreed to be held liable under that contract. In essence, the prison guards would have had to proactively agree to being sued before they violated Mr. Landor’s religious liberty.
A History of Exclusion
The Landor decision is concerning for several reasons, not least because the Supreme Court failed to extend meaningful protection to a minority religious practice. While the Court has been consistently solicitous of religious claims in recent years, these cases have involved mainstream religions, most often Christianity.
The Landor decision is unsettling for another reason as well. Increasingly the Court is considering “historical practices and understandings” of the founding era in deciding First Amendment cases.3 And this raises a key question: How does this jurisprudential lens shape the Court’s ability to see and protect minority religions?
The roots of America’s constitutional religious liberty regime can be traced to 1791 with the ratification of the First Amendment. At the time, Native Americans and enslaved persons were absent from any consideration of religious freedom.4 They were not merely unprotected—they were invisible. Catholics and Jews appeared at the margins—sometimes named in state constitutional debates, occasionally referenced in arguments over religious tests for office—but they were neither protected by, nor integrated into, the religious establishments that dominated early American governance. The First Amendment’s guarantee of free exercise was, from the start, built on a foundation that excluded most of the people living on the continent. And the establishment clause protected states from the creation of a national church by the federal government, but it did not protect religious minorities from states that established one religion and disfavored others.
The exclusion of minority religions has echoed through two centuries of jurisprudence, and nowhere more painfully than in the Court’s treatment of Native American religious practice. The First Amendment has never meaningfully sheltered Indigenous spiritual traditions. In Bowen v. Roy the Court rejected a Native American father’s objection to the government assigning a Social Security number to his daughter, a practice he believed would rob her spirit.5 The government’s administrative convenience, the Court held, outweighed the family’s religious beliefs. The Court, however, was more conciliatory toward Amish parents a few years earlier when they allowed the parents to violate state law by keeping their children from attending middle and high schools in accordance with their religious beliefs.6
Two years after Bowen, in Lyng v. Northwest Indian Cemetery Protective Association, the Court allowed the federal government to build a road through sacred land used for centuries by Yurok, Karuk, and Tolowa practitioners—even while acknowledging that the road would “virtually destroy” their ability to practice their religion.7 The majority reasoned that the free exercise clause did not prevent the government from using its own land as it saw fit, regardless of the spiritual devastation.
One might have hoped that the passage of time would bring progress. It has not. The Supreme Court’s recent refusal to hear the Apache Stronghold v. United States case is the latest and perhaps most deeply disappointing chapter in this failure to protect Indigenous spiritual traditions.8 The case involved Oak Flat in western Arizona, a site sacred to the Apache for generations, which the federal government authorized for transfer to a copper mining company. The destruction of Oak Flat would make it impossible for the Apache to hold their religious ceremonies on the site. Yet the courts declined to intervene. The reasoning echoed Lyng with dispiriting fidelity: the government was merely managing its own property. The message to Native American practitioners remains what it has been since the founding—their sacred spaces, their ceremonies, and their spiritual lives are not the concern of the U.S. Constitution.
Unseen Faiths
The religious traditions of the African diaspora have fared only slightly better. Practices rooted in African spiritual heritage that diverge from Christianity have faced a legal landscape that is, at best, skeptical and, at worst, openly hostile.9 The most notable partial success came in Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, where the Court struck down a series of city ordinances transparently designed to suppress the Santería practice of animal sacrifice.10 The decision was important, but its importance lay primarily in the obviousness of the discrimination—the city had essentially announced its intent to target Santería and no other practice. When the animus is less explicit, the results have been far less encouraging.
Consider the Nation of Islam, whose members have faced persistent legal resistance in asserting religious liberty claims. In Clay v. United States (1971), the Court ruled in Muhammad Ali’s favor on his conscientious objector claim, but only on narrow procedural grounds—never reaching the deeper question of whether the Nation of Islam’s beliefs warranted the same respect as those of mainstream pacifist traditions.11 Indeed, there was a disturbing trend of the government serving draft notices to Nation of Islam members, with commentators noting it was an effort to silence the activism of the religion.
In Africa v. Pennsylvania, a federal court declined to recognize the MOVE organization’s beliefs as religious at all, drawing lines around what counts as “religion” that inevitably tracked mainstream Christian assumptions. And the movement of Father Divine, a Black spiritual leader whose Peace Mission attracted devoted followers in the early and mid-twentieth century, was routinely treated by courts and commentators not as a legitimate religious community but as a curiosity or a fraud. These cases reveal a pattern: when religious practice looks unfamiliar—when it is rooted in Black cultural and spiritual traditions rather than European Protestantism—the law has struggled to see it as religion at all.
The histories of the Jehovah’s Witnesses and the Church of Jesus Christ of Latter-day Saints (Mormons) offer a more complicated picture, but one that reinforces the same underlying dynamics. The Jehovah’s Witnesses were, for a time, the most important litigants in the development of First Amendment law, winning landmark cases on free speech and religious freedom. But those victories came only after sustained periods of persecution—mob violence, forced flag salutes, and criminal prosecution—that the legal system was slow to address. The Mormons faced an even more dramatic confrontation with the state. The federal government’s campaign against polygamy in the nineteenth century was not merely a legal project; it was a cultural one, and it was deeply racialized. Polygamy was rhetorically linked to the practices of non-White and non-Christian peoples, cast as a relic of barbarism incompatible with civilized society. The legal suppression of Mormon polygamy—upheld by the Supreme Court in Reynolds v. United States12—drew on the same impulse that animated the exclusion of Native and African diasporic religions: the conviction that some forms of religious practice are simply too foreign, too other, to deserve constitutional protection.
Unequal Protection
Which brings us back to Landor, and to the reasons his case should concern anyone who cares about religious liberty in America. Two features of the decision stand out. First, the justices displayed remarkably little sympathy for Mr. Landor as a person. Here was a man with three weeks left on his sentence, held down by state officials who destroyed a physical manifestation of 20 years of religious devotion—and the Court’s opinion reads as though the human being at the center of the case barely existed.
Second, and perhaps more doctrinally alarming, the Court did not address the religious liberty violation itself, nor the importance of RLUIPA. The opinion focused exclusively on the interpretation of the spending clause, treating the case as a technical question about the scope of congressional authority rather than a confrontation with the state’s power to strip a person of his religious identity.
The Court has historically interpreted RLUIPA and the Religious Freedom Restoration Act (RFRA) in parallel, treating the two statutes as complementary expressions of the same congressional commitment to religious freedom. But Landor marks a troubling divergence. After Tanzin v. Tanvir, individual damages are available against personal actors under RFRA.13 Under RLUIPA, after Landor, they are not. The practical result is a two-tiered system: robust remedies for religious liberty violations in some contexts, and a hollow promise of protection in others—particularly in prisons and mental health facilities, where minority religious practice is most vulnerable.
To be fair, the Court has not been uniformly hostile to religious minorities. It ruled in favor of a Muslim plaintiff in Tanzin, recognizing damages under RFRA for individuals placed on the No Fly List in retaliation for refusing to serve as FBI informants. In Holt v. Hobbs the Court unanimously held that an Arkansas prison could not prevent a Muslim prisoner from growing a half-inch beard in accordance with his faith.14 And in Mahmoud v. Taylor—in which the Court recognized the right of religious parents to opt their children out of school curriculum that conflicts with their beliefs—the co-claimants were Muslim (as well as Catholic and Ukrainian Orthodox).15 These cases are real, and they matter. But they do not erase the broader pattern—and they should not be mistaken for a consistent commitment to protecting minority religious exercise.
Repairing the Gaps
From here there are a few avenues forward—if religious minorities and their advocates are willing to press them. The Mahmoud opt-out right, for example, is not a one-way street. If religious parents can opt out of material that conflicts with their faith, then Muslim, Jewish, Hindu, Native American, Rastafarian, and secular families can assert the same right against Ten Commandments displays in classrooms and Christian-oriented curricula in public schools.16 The logic of Mahmoud does not belong to any single tradition. Similarly, the Court’s dismantling of church-state separation has opened the door to taxpayer funding for religious schools and institutions. That funding need not flow exclusively to Christian organizations. Minority religious communities—Islamic schools, Jewish day schools, Sikh institutions, and others—are equally entitled to participate, and they should demand to do so. Finally, Congress retains the power to act. RLUIPA’s protections for institutionalized persons are a floor, not a ceiling. Legislation can expand the remedies available to prisoners whose religious liberty is violated, close the gap that Landor has opened, and ensure that the promise of free exercise is not confined to those whose faith the majority finds familiar.
The question is whether the institutions of American law—courts, legislatures, and the public itself—will treat religious liberty as a universal principle or a privilege reserved for the comfortable and the familiar. Landor suggests the answer is not yet settled. It should not be settled by silence.
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1 Landor v. Louisiana Department of Corrections and Public Safety, 609 U.S. 146 S.Ct. 1931 (2026).
2 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq; 42 U.S.C. § 2000cc-2(a) (providing for “appropriate relief against a government”).
3 Kennedy v. Bremerton School District, 597 U.S. 507 (2022); American Legion v. American Humanist Association, 588 U.S. 29 (2019); Town of Greece v. Galloway, 572 U.S. 565 (2014).
4 Audra Lyn Savage, “Slavery and the Myth of Religious Liberty,” Brigham Young University Law Review 51, no. 5 (2026): 1365.
5 Bowen v. Roy, 476 U.S. 693 (1986).
6 Wisconsin v. Yoder, 406 U.S. 205 (1972).
7 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 451 (1988).
8 Apache Stronghold v. United States, 605 U.S. 145 S.Ct. 1480 (2025) (Gorsuch, J., dissenting from denial of certiorari).
9 Audra Savage, “The Black Religious Liberty Curriculum Expands the Conversation on ‘Religious Freedom,’ ” AAR News, American Academy of Religion, Oct. 3, 2024, aarweb.org.
10 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
11 Clay v. United States, 403 U.S. 698, 704 (1971).
12 Reynolds v. United States, 98 U.S. 145 (1878).
13 Tanzin v. Tanvir, 592 U.S. 43 (2020).
14 Holt v. Hobbs, 574 U.S. 352 (2015).
15 Mahmoud v. Taylor, 606 U.S. 522 (2025).
16 This was the argument put forward by a multifaith group of parents in Nathan v. Alamo Heights Independent School District (2026). However, the Fifth Circuit ruled 9–8 that a Texas law requiring the Ten Commandments in public classrooms does not violate the First Amendment, rejecting the 1980 Stone v. Graham precedent. The court determined that passive displays, evaluated under a “history and tradition” standard, do not constitute unconstitutional government coercion or religious establishment.
Article Author: Audra Lyn Savage
Audra Savage is an associate professor of law at Wake Forest University School of Law in North Carolina, where she teaches courses on business organizations, freedom of religion, and race and the law. Recent academic scholarship includes articles published in the Columbia Law Review Forum, Utah Law Review, the Journal of Law and Religion and Political Theology, and most recently in the BYU Law Review. Savage is also a collaborator with The Law, Rights, and Religion Project at Union Theological Seminary.