Lyng v. Northwest Indian Cemetery Protection Association

The minority, in an opinion written by Justice Brennan, took a more expansive view of the Free Exercise Clause, declaring that it "is directed against any form of governmental action that frustrates or inhibits religious practice," a claim the majority had flatly rejected by saying, "The Constitution, however, says no such thing," and quoting the First Amendment: "Congress shall make no law . . prohibiting the free exercise [of religion]." Brennan noted, however, that one definition of the word prohibit is "to prevent from doing something."

A good portion of the dissent focused on the nature of Native American religious beliefs, finding a centrality of land and reverence for nature in contrast to Western views. For many Native Americans, the land is a "sacred, living being," not a "fungible" asset to be managed. The construction of a road through the area would "completely frustrate the practice of their religion" and in effect will destroy it.

The minority did not accept the majority's distinction between government action that required conduct contrary to one's religious belief and action that prevented conduct according to that religious belief: "The harm to the practitioners is the same" in either case. The majority reading of Bowen v. Roy as applicable to the case at hand was "altogether remarkable," since the finding in that case emphasized the "internal" nature of the government action at question, whereas government "land-use decisions are like to have substantial external effects . . . " In this case the government action would "virtually destroy" the respondents' religion. Such a substantial harm did raise a constitutional question, and leaving the issue to the legislature was an "abdication" that would result in the government having "the unilateral authority to resolve all conflicts in its favor, " a result that does nothing to balance the interest of the government with that of Native Americans.