Every Good Friday, thousands of people climb a rocky trail in Sunland Park, New Mexico, toward a limestone statue of Christ the King that has watched over the border since 1940. About 40,000 pilgrims make the climb each year. Now the federal government wants to build a border wall along the base of the mountain, and the Catholic Church is fighting it. The case raises a question the Supreme Court has never squarely answered: when the government takes a religious community's sacred land, does that burden its religion? I think the answer has to be yes.
The fight over Mount Cristo Rey
In May 2026, the Department of Justice filed an eminent domain action against the Roman Catholic Diocese of Las Cruces, which owns the mountain. The government wants about 14 acres along the southern base for a 1.3 mile stretch of wall, plus roads, lighting, and cameras. The diocese responded that the taking would substantially burden the religious exercise of the church and the pilgrims who pray there, in violation of the First Amendment and the Religious Freedom Restoration Act (Source NM).
Judge Kenneth Gonzales allowed the government to deposit payment for the land but ruled that the diocese can keep challenging the taking. The government does not doubt the site is sacred or that the church is sincere, but it says construction will sit more than 1,000 feet from the statue and pilgrims can still reach the top. The diocese says access misses the point. As its chancellor put it, a pilgrim at the summit who turns slightly away from Christ the King would find himself staring at a giant "Keep Out" sign. The church also notes that Homeland Security has made room for secular landscapes like Big Bend National Park but not for Mount Cristo Rey. The court has not yet ruled on whether the taking is lawful.
Why this is a hard case
Under the Free Exercise Clause alone, the diocese would struggle. In Employment Division v. Smith (1990), the Court held that a neutral law that applies to everyone is constitutional even if it burdens someone's faith. A border wall is aimed at a gap in the fence, not at Catholics.
But Congress passed RFRA in 1993 to undo Smith, and RFRA still binds the federal government. If a believer shows a "substantial burden," the government must prove it is pursuing a compelling interest by the least restrictive means. Everything turns on that first step.
That step is where sacred land cases go to die. In Lyng v. Northwest Indian Cemetery Protective Association (1988), the Supreme Court let the Forest Service build a road through land sacred to several tribes, even while admitting it could devastate their worship. The Court reasoned that no one was coerced; the government was simply using its own land. In Apache Stronghold v. United States, the Ninth Circuit relied on Lyng to let Oak Flat, an Apache holy site in Arizona, go to a copper mine, and in 2025 the Supreme Court refused to hear the case over a dissent from Justices Gorsuch and Thomas.
Why the diocese should still win
The diocese can win without overturning Lyng, because this case is missing the fact Lyng depended on: government ownership. Here the church owns the land. The government is not managing its property; it is seizing a church's holy site. If that is not a substantial burden, the phrase means almost nothing.
The government's best reply is that worship can continue. But in Holt v. Hobbs (2015), the Court rejected the idea that a burden is insubstantial just because a believer has other ways to practice, and courts may not decide which parts of a faith really matter. For a pilgrim, the climb and the view are part of the prayer.
The strongest worry on the other side is practical. Lyng warned that if every sacred claim could stop a public project, government would grind to a halt, since so much land is sacred to someone. RFRA already answers that. A substantial burden does not end the case; it only forces the government to justify itself. Border security is a compelling interest, but Gonzales v. O Centro (2006) requires the government to justify burdening this particular claimant. That is hard to do on terrain rough enough to watch with cameras and patrols, and harder still when the government has spared Big Bend. Under Tandon v. Newsom (2021) and Fulton v. City of Philadelphia (2021), granting secular interests exemptions it denies to religious ones also suggests the policy is not truly "generally applicable," which could revive the constitutional claim too.
What the case reveals
Even if the diocese wins, the reason should make us uneasy. A victory based on the deed means sacred land is protected when a church holds the title and unprotected when a tribe lost it generations ago, often to the very government now taking land. That is a rule about property, not religious liberty.
The better rule would treat taking or destroying sacred ground as a substantial burden no matter whose name is on the title, and then make the government prove it had no other choice. Mount Cristo Rey is a chance for the courts to start there. The pilgrims climbing this Good Friday deserve that kind of answer, and so did the Apache at Oak Flat.
Sources
Source NM, May 2026
KOB 4, June 2026, and KOB 4, July 2026
Border Report, July 2026
Maryknoll Magazine, July 2026
Cases: Lyng (1988), Smith (1990), O Centro (2006), Holt v. Hobbs (2015), Tandon (2021), Fulton (2021), Apache Stronghold (9th Cir. 2024)
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