Currently before the United States District Court for the District of Columbia is a case (Mennonite Church USA et al v. U.S. Dep’t of Homeland Sec.) challenging federal immigration enforcement action under the Religious Freedom Restoration Act (RFRA). RFRA proscribes the Government from acting in a way that “substantially burden[s] a person’s exercise of religion,” unless the Government passes strict scrutiny. The Plaintiffs’ claim focuses on the rescission of the sensitive locations policy, also known as the “sanctuary policy,” which prevented the Department of Homeland Security (DHS) from conducting immigration enforcement activities near places of worship. The Plaintiffs allege that, by rescinding the policy, DHS has substantially burdened their free exercise as the threat of immigration enforcement has driven immigrant congregants to abandon worship services. RFRA was passed in the same year (1993) that the sensitive locations policy was developed, and every President since has left the policy largely untouched. As a result, no comprehensive analysis has considered whether rescission of the policy is in violation of RFRA or the Free Exercise Clause.

This paper examines whether the recission of the sensitive locations policy creates a substantial burden on free exercise and whether the Plaintiffs are likely to prevail. This paper will begin by analyzing the history of the Court’s jurisprudence on what constitutes a “substantial burden” and clarifying where the doctrine stands today. Next, this paper will consider whether the Plaintiffs can show a substantial burden to their sincerely held religious beliefs, as is required to prevail under RFRA. Finally, this paper will consider whether the Government can successfully invoke the “internal affairs” doctrine set out in Lyng v. Nw. Indian Cemetery Protective Ass’n. to sidestep the strict scrutiny analysis that comes with a substantial burden. Since this is a difficult case of first impression before the court, as partially indicated by the 80- page complaint, it is impractical to consider every issue in a paper of this length. This paper will not consider the Plaintiff’s First Amendment Freedom of Association claim. Nor will this paper analyze whether the Government is likely to survive strict scrutiny upon a showing of a substantial burden.