Home » News » Neb. appeals court: No First Amendment right for man to take son to sweat lodge

By David L. Hudson Jr., published on January 17, 2024

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Photo courtesy iStock: nathaphat

A Nebraska man did not have a First Amendment right to take his son to a sweat lodge, a Nebraska appeals court has ruled.  


Joseph Evans had filed a petition to modify custody so that he could have joint physical and legal custody of his son. The child’s mother, Susan Ewing, contested the petition, arguing that the existing child-custody arrangement should control. 


Evans argued that the custody arrangement should be modified because there were material changes in circumstances, including the fact that Evans was no longer traveling for long periods as a member of the National Guard. 


During the litigation, meanwhile, Ewing petitioned the court to order Evans to discontinue taking their son to sweat lodges. The trial court granted that motion. 


A sweat lodge has been defined as “a hut, typically dome-shaped, used by North American Indians for ritual steam baths as a means of purification.”


On appeal, Evans – among other issues – challenged the trial court’s order enjoining him from taking his son to sweat lodges. Evans contends that he lives an “indigenous life” that is imbued with spirituality and that the trips to the sweat lodge are an important part of this life. Evans also contended that the trips to the sweat lodge were important to help his son with behavioral problems.


“Although there was testimony regarding prayer and spirituality related to the sweat lodge, based upon the record before us, we cannot determine that Evans’ participation in the sweat lodge constitutes a religious practice,” the Nebraska Court of Appeals ruled in Evans v. Ewing. “Evans is not an enrolled member of any tribe.”


The appeals court found that using a sweat lodge was not a religious practice per se. As such, it reviewed the issue under an abuse-of-discretion standard — not a de novo (or fresh) standard of review often used for issues involving constitutional law. 


The appeals court determined that the trial court did not abuse its discretion in finding that the son’s trips to the sweat lodge could be more harmful than helpful.  


The appeals court concluded: “Because the district court found Ewing’s testimony persuasive that the sweat lodges posed a threat to the child’s well-being, it determined it was in the child’s best interests to restrict his ability to enter the sweat lodge. We find no abuse of discretion in that decision.” 


David L. Hudson Jr. teaches First Amendment law and constitutional law classes at Belmont University College of Law. He is the author, co-author, or co-editor of more than 50 books, including The Constitution Explained: A Guide for Every American (Visible Ink Press, 2022) and The First Amendment: Freedom of Speech (Thomson Reuters, 2012). 


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