Another First Amendment case that the Court will consider this Friday, but on the religion side, is Apache Stronghold v. United States (briefs at the link); here's the question presented:
For centuries, Western Apaches have centered their worship on a small sacred site in Arizona called Chí'chil Biłdagoteel, or Oak Flat. Oak Flat is the Apaches' direct corridor to the Creator and the locus of sacred ceremonies that cannot take place elsewhere. The government has long protected Apache rituals there. But because copper was discovered beneath Oak Flat, the government decided to transfer the site to Respondent Resolution Copper for a mine that will undisputedly destroy Oak Flat—swallowing it in a massive crater and ending sacred Apache rituals forever.
Petitioner challenged this decision under the Religious Freedom Restoration Act and the Free Exercise Clause. In a fractured en banc ruling cobbled together from two separate 6-5 majorities, the Ninth Circuit rejected both claims. Although the court acknowledged that destroying Oak Flat would "literally prevent" the Apaches from engaging in religious exercise, it nevertheless concluded that doing so would not "substantially burden" their religious exercise under RFRA, relying on this Court's pre-RFRA decision in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). And while the majority acknowledged that singling out Oak Flat for destruction is "plainly not 'generally applicable,'" it rejected the free-exercise claim "for the same reasons"—no substantial burden.
The question presented is:
Whether the government "substantially burdens" religious exercise under RFRA, or must satisfy heightened scrutiny under the Free Exercise Clause, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
Prof. Stephanie Barclay (Georgetown) and Matthew Krauter also have an interesting forthcoming article in the University of Pennsylvania Law Review, The Untold Story of the Proto-Smith Era: Justice O'Connor's Papers and the Court's Free Exercise Revolution, that bears on this case and on the religious exemption debate more broadly:
