A detailed carving of Lady Justice holding scales and a sword is seen in the foreground with the United States Supreme Court building in the background. The words "Equal Justice Under Law" are engraved above the building's entrance. The image evokes themes of law, justice, and the American legal system.
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University of Notre Dame

Fighting for religious liberty

Luchando por la libertad religiosa

Notre Dame Law School stands ready to advocate and defend religious freedom for all people.

What would you fight for?

Wendsler Nosie Sr., a San Carlos Apache tribe member, stands overlooking Chi’chil Biłdagoteel, known as Oak Flat, in Arizona’s Tonto National Forest.

He explains that Oak Flat is a sacred space for the Apache and other Native peoples. The Apache believe Oak Flat was touched by their creator, and it is where the angels and their Ga’an people reside; it is a corridor between Heaven and Earth, where they can commune with the sacred.

A hazy, dreamlike image of people walking through a thick fog. Figures in the foreground are slightly more visible, including a person in a dark hat and jacket and another with a reddish garment. The background is filled with blurred shapes of other individuals, making the scene appear mysterious and ethereal.
Practices like an Apache woman's coming of age ceremony, seen here, will forever be altered or ended by the destruction of Oak Flat.

Oak Flat is lifegiving, says Nosie. A mountaintop in this high desert landscape gathers snow, which flows into tributaries and into deep water. It sustains life, from plants to animals to humans. The Apache collect water and medicinal plants here. They collect food and honor their ancestors.

This land is undeniably irreplaceable. And yet, Oak Flat is in danger.

In 2014, in a midnight rider on a defense funding bill, a land swap deal offered Oak Flat to the international mining company Rio Tinto. The company intended the land for a Resolution Copper mine, which would take copper ore from 7,000 feet underground and leave Oak Flat as a crater 2 miles wide and 1,000 feet deep. In essence, the land would be destroyed completely and unsafe for humans.

Apache Stronghold, a 501(c)(3) nonprofit community organization made up of Native and non-Native allies intent on saving Oak Flat, has fought the decision. The group argued the deal violated a historic lien on the land from an 1852 Treaty of Santa Fe. They argued it violated a protection under federal law that had held since the 1950s. And they argued it infringed on their religious freedom. That’s where Notre Dame’s Lindsay and Matt Moroun Religious Liberty Clinic comes in.

Illustration depicting the relative size of a two-mile-wide canyon. Silhouettes of the Eiffel Tower (1,083 ft), Washington Monument (555 ft), and Statue of Liberty (305 ft) are placed within the canyon to illustrate its depth.
The crater left behind at Oak Flat would be two miles wide and 1,000 ft deep. The Eiffel Tower (1,083 ft), Washington Monument (555 ft), and Statue of Liberty (305 ft) would fit into that crater.

Religious liberty, a fundamental human right

Informed by its Catholic character, Notre Dame has always supported and promoted religious liberty as a fundamental human right. And in 2020, Notre Dame Law School launched the Religious Liberty Clinic, now one of the world’s leading academic institutions on the subject of religious freedom.

The clinic serves as a teaching law practice that not only contributes scholarship and research in this field, but also actively defends and counsels those needing help in the field of religious liberty.

Marcus Cole, the Joseph A. Matson Dean and Professor of Law at Notre Dame Law School, is careful to note that religious liberty encompasses all faiths, and those without faith.

Marcus Cole walks across the steps of the Supreme Court in Washington DC.
Notre Dame Law School Dean Marcus Cole at the Supreme Court in Washington, DC.

“The Religious Liberty Clinic was created because our freedom of conscience, our freedom to believe, and then live according to our beliefs, is the most important and fundamental freedom that we have. Not just as Americans, but as humans,” he said.

“All other rights are founded upon freedom of conscience. Freedom of speech means nothing, freedom of the press means nothing if you can’t believe what you have to say or what you have to print. And so my hope for the Religious Liberty Clinic is that it’ll be a living testament to Notre Dame’s commitment to freedom of conscience for all people. And it will be a testament to Notre Dame’s commitment to human flourishing.”

The clinic’s case roster is vast and includes work in a variety of contexts representing individuals and organizations from a diversity of faith traditions.

Two individuals shake hands amidst tall, ornamental grasses on a sunny day. One person wears a black bandana, shirt, and pants, while the other wears a suit with a yellow bow tie.
Wendsler Nosie Sr., leader of Apache Stronghold, and Marcus Cole, dean of Notre Dame Law School, meet in Washington, DC, before Nosie delivered his group's appeal to the US Supreme Court.

“Religious freedom is universal. It doesn’t apply only if you believe certain things or belong to a certain tradition,” said John Meiser, associate clinical professor and director of the Religious Liberty Clinic. “The work of our clinic reflects that. With our students, we serve all who are in need and offer aid to anyone who might be suffering from the denial of this most foundational right.”

Most recently, the clinic successfully led the federal appeal of a volunteer prison minister who had been excluded from visiting a jail in Georgia because of his religious beliefs. The clinic currently represents a group of Catholic educators hoping to expand educational opportunities in Oklahoma in an appeal to the US Supreme Court. Outside the courtroom, the clinic advises religious organizations in transactional matters and has represented several individuals seeking refuge from religious persecution in their home countries—including helping win asylum for a young Uyghur Muslim earlier this year.

The clinic has also filed dozens of amicus curiae (or “friend of the court”) briefs to advocate for religious freedom in an array of contexts. The clinic’s briefs have represented Christian, Jewish, Muslim, Native American, and Sikh groups to advocate for religious exercise in prison, the freedom to operate a religious food ministry to feed the hungry, the preservation of Native sacred rituals, and much more.

2 dimensional map of Arizona showing relative locations of Phoenix, Tucson, and Oak Flat within the state boundaries.

Map Legend

  • Circle with red colored, solid line Land swap boundary
  • Circle with yellow, solid line Area formerly protected
  • Circle with black colored, dashed line Subsidence zone
Oak Flats topology map

Figure 1: In 2014, a parcel of land, including Oak Flat, was released by the federal government to Resolution Copper, a mining company, in exchange for other land the company owned elsewhere in Arizona. The Oak Flat site is a federally protected area listed on the National Register of Historic Places, and its destruction may also be in violation of the Religious Freedom Restoration Act.

Since its earliest days, the clinic has filed a series of amicus briefs—first in the district of Arizona, then the Ninth Circuit Court of Appeals, and now the United States Supreme Court—in support of protection for Oak Flat along with other Indigenous sacred sites around the country.

Olivia Lyons, a law student and one of the first recipients of the Murphy Fellowship for students exploring law and religion, said, “Religious liberty law hasn’t developed to accommodate land-based religions the same way it’s developed to accommodate other religions.”

Lyons explained: “Religious liberty law initially developed mostly with regards to religions that have churches. So you think about Christianity typically, at least in the United States, we own the land that our churches are on, but that’s not the case for Native Americans. A lot of them don’t own the land that houses their most sacred spaces, which creates a lot of legal issues for them. And religious liberty law doesn’t really accommodate those issues, but it needs to in order to vindicate their rights.”

Lyons has hands-on experience in this field. As a law student, she worked on two different cases advocating for two different Native American tribes, as well as cases representing Jewish students and a Catholic organization. She said that variety and that openness to all cases is a hallmark of how the Religious Liberty Clinic functions.

A white woman smiles at the camera in a common area inside a University of Notre Dame building. She is wearing a white sweater with a red and blue heart pattern across the chest and shoulders. The background is slightly blurred, showing other students and seating.
Olivia Lyons is a third-year law student and Murphy Fellow at Notre Dame Law School.

“I think that the Constitution is a constitution for all peoples, and here at the Law School, we believe that. And if we were only taking cases that particularly aligned with our faith tradition, I don’t think that that would reflect the spirit of religious freedom. And I think it’s important for people to recognize that this fight isn’t just for Christians or for Jews or for Muslims or whatever faith. It’s for people of all faith, including people of Native American faiths who are often left unrecognized.”

After graduation, Lyons intends to clerk in Columbia, South Carolina, for the Fourth Circuit Court of Appeals, and then for the Western District of Kentucky in Louisville.

An appeal to the US Supreme Court

As it pertains to Oak Flat, Notre Dame’s Religious Liberty Clinic does not represent Nosie or Apache Stronghold. They are represented by Becket Law, a national law firm that specializes in defense of religious liberty. But Notre Dame's clinic has filed five amicus curiae briefs at varying levels in support of the case. The latest amicus brief was filed on October 15 to the US Supreme Court.

Amicus briefs provide a court with valuable context on the wider impact or history of an existing case. Meiser, the clinic’s director, explained that in this case, the clinic filed briefs on behalf of a coalition of individuals and organizations who support tribal rights and who work to preserve Indigenous spiritual practices and cultural heritage. The clinic’s briefs highlighted the potentially devastating impact beyond the parties in the case, including the grave consequences the threatened destruction would have for all Native Americans. They also urged the court to ensure federal law is interpreted to provide Indigenous religious and spiritual practices with the same robust protections afforded to more mainstream religious practices and to situate the case within the long history of the government’s abuse of Native Americans.

The Law School’s involvement is powerful, Nosie said. “When I think about the work, even just the name Notre Dame, it carries a really big impact that tells everybody else that if Notre Dame can listen, why can’t we listen?”

A Native American man wearing a black bandana and dark shirt smiles while looking off to the side. The U.S. Capitol Building is visible in the background, slightly blurred by the focus on the person in the foreground. Lush green trees line the bottom of the frame.
Nosie is the leader of Apache Stronghold and the former chairman of the San Carlos Apache Tribe.

And listening has been Nosie’s goal for some time. This summer, he and a caravan of other Apache Stronghold members undertook a cross-country prayer journey en route to file their case with the Supreme Court. They started in Seattle with the Lummi Nation before making their way southwest to speak with other peoples including the Hopi, Diné, and Cherokee. The group spoke with crowds in Los Angeles, Phoenix, Raleigh, Philadelphia, and Montgomery, Alabama, where they visited the sites of Dr. Martin Luther King Jr.’s home and the church where he was a full-time pastor.

In a written statement, Nosie said, “We need to come together on this court case, our spirituality and the survival of the earth are at stake, the suffering of the people is what we are bringing to the Supreme Court.”

Now the US Supreme Court will consider whether to review the case. That decision could impact a multitude of other sacred Indigenous sites.

Nosie is skeptical. It’s not the first time Native land has been a place of contention. He tells tales of his family’s connection to Geronimo, a famous historical Apache leader; of being imprisoned on the San Carlos reservation; of shifting narratives between Native Americans and the federal government; of the runover of other sacred places like those belonging to the East Coast tribes, the Midwest tribes, the Northern tribes. He speaks of the wake of devastation each one leaves and of the future of his tribe—how his people want to defend the Southwest, the Earth, their way of being.

“It’s not only about fighting for Oak Flat, but it’s fighting about sustainability for the future,” Nosie said. “In our religious way, we’re here to protect God’s greatest gift.”

And Notre Dame’s Religious Liberty Clinic is here to support them in that fight. Dean Cole said, “Our clinic took on this case because we think it’s important to stand up for all people who are people of belief or no belief at all—and to demonstrate that they have the right to live according to their beliefs.”

Credits

Writer: Tara Hunt McMullen
Photographer: Matt Cashore