Public Law and Courts

Sacred Ground: African American Slaves, Incidental Burdens, and the US Religious Freedom Paradigm


  • Brady Earley Brigham Young University & University of Chicago Law School


The religious freedom narrative in the United States tells a story that often relies heavily on U.S. civil religion to color the perspectives of religious freedom. Even when taking account for the experience of minority groups, such as African American slaves, these experiences are often framed within a lens the minority group did not choose. This article contributes an account of religious freedom for African American slaves based on a shared crucial component of West African indigenous religion: burial rituals. This analysis highlights the ways that minority groups need not be persecuted or reviled to have their religious freedom removed. Simply failing to understand and accommodate their beliefs ultimately had the same effect. The article then traces this tendency through modern religious freedom case law making the case for proactive protection of religious freedom through focusing on responsibilities before making reactive repairs to rights violations.


Thumbnail image of Sacred_Ground.pdf


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