Free Exercise and Substantial Burdens Under Federal Law

Publication year2021

94 Nebraska L. Rev. 633. Free Exercise and Substantial Burdens Under Federal Law

Free Exercise and Substantial Burdens Under Federal Law

Mark Strasser(fn*)


I. Introduction .......................................... 633

II. The Ever-Changing Free Exercise Jurisprudence ...... 634
A. Reynolds .......................................... 635
B. Modern Jurisprudence Suggesting No Exemptions Are Required ...................................... 636
C. The Jurisprudence Does an About-Face ............ 641
D. An Implicit Modification of the Jurisprudence? ..... 652
E. Back to Robust Protection? ........................ 655
F. Tepid Protection? .................................. 656

III. The Congressional Response to the Court's Free Exercise Jurisprudence ................................ 672
A. RLUIPA .......................................... 673
B. RFRA ............................................. 674
C. The Circuits' Quandary ............................ 679

IV. Conclusion ............................................ 683


While the First Amendment protects religious freedom, the contours of the right to practice one's religion are not spelled out in the Constitution. A series of cases decided by the United States Supreme Court provides guidance with respect to the conditions under which laws burdening religious practices will not violate federal constitutional guarantees. Those guarantees are rather forgiving for neutral and general laws that incidentally burden religious practices, but statutes that target religious practices are unconstitutional unless narrowly tailored to promote compelling state interests.

Believing that the First Amendment as construed by the Court affords insufficient protection to free exercise, Congress passed two statutes to increase protections for religious practices-the Religious


Freedom Restoration Act (RFRA)(fn1) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).(fn2) The protections provided by these statutes are triggered only when substantial burdens are imposed on religious practice,(fn3) and there is much disagreement about what qualifies as a substantial burden. The United States Supreme Court has sent mixed signals regarding how to define "substantial" under federal statutory and constitutional law, and the circuits have adopted different and conflicting tests with respect to which actions are sufficiently burdensome to trigger the relevant protections. Unless the Court acts soon to clarify the relevant tests, the circuits are likely to diverge even more, increasing the likelihood that the same religious practices will be protected in one circuit but not in another.

Part II of this Article discusses the developing free exercise jurisprudence with a special focus on what constitutes a substantial burden on religious practice. Part III examines which burdens on free exercise qualify as substantial under federal statutory law, and discusses some of the different tests used by circuits to determine whether a burden on free exercise triggers the statutory protections. The Article concludes by urging the Court to offer a clear standard that might be applied consistently, although noting that the Court's inconsistent application of free exercise guarantees does not inspire confidence that the Court will provide much useful guidance in this area anytime soon.


Free exercise jurisprudence has been developing for more than a century, with one of the earlier cases-Reynolds v. United States(fn4)- setting the stage in a number of respects. The issues addressed in that case included the differing constitutional treatment of statutes adversely affecting religious belief versus statutes adversely affecting religious action, as well as the differing constitutional considerations implicated by statutes targeting religion for adverse treatment rather than merely incidentally burdening religious practice. Those issues have remained important in contemporary free exercise jurisprudence.


A. Reynolds

One of the earliest cases setting the tone for free exercise analysis was Reynolds v. United States, in which the Court examined the constitutionality of a federal polygamy prohibition containing no exemption for religiously motivated plural marriages.(fn5) The Reynolds Court acknowledged that "Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion,"(fn6) and the question at hand was "whether the law now under consideration comes within this prohibition."(fn7) To answer that question, the Reynolds Court attempted to ascertain "what is the religious freedom which has been guaranteed."(fn8)

While not explicitly announcing that it was using a Framers' Intent test, the Reynolds Court talked about the views of some Framers(fn9) and also considered the practices that had been prevalent at the time the First Amendment was adopted. At that time, all states prohibited polygamy,(fn10) which presumably meant that those framing and adopting the First Amendment saw no contradiction in guaranteeing free exercise while at the same time criminalizing plural marriage: "[I]t is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life."(fn11)

One issue raised in Reynolds (which continues to be important in the contemporary jurisprudence) was whether the statute at issue was targeting religion rather than incidentally affecting it.(fn12) The Court suggested the federal prohibition of polygamy did not target the


Church but was instead a statute of general applicability.(fn13) This meant that the issue presented was whether the Federal Constitution required that the practices of the Latter Day Saints be granted an exemption.(fn14) The Court offered a few reasons for why such an exemption was not required, noting that recognizing an exemption would allow religious and non-religious people to be treated differently for commission of the same act: "[T]hose who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free."(fn15) The Court feared that exempting those with sincere religious beliefs from the law "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,"(fn16) suggesting that the law should not impose burdens on the non-religious that the religious do not also have to bear.(fn17)

B. Modern Jurisprudence Suggesting No Exemptions Are Required

Reynolds suggests that while the First Amendment precludes the legal regulation of religious belief, lawmaking bodies have been "left free to reach actions which [a]re in violation of social duties or subversive of good order."(fn18) That attitude is also reflected in more modern jurisprudence. For example, in Prince v. Massachusetts,(fn19) the Court examined whether child labor laws(fn20) could be applied to children who were distributing religious tracts(fn21) pursuant to a religious calling.(fn22)


Sarah Prince, the plaintiff, had permitted Betty Simmons to hand out "Watchtower" and "Consolation" in exchange for donations.(fn23)

Prince argued that she had the constitutional right to permit her ward "to preach the gospel"(fn24) both because of her rights as a parent(fn25)-Prince had legal custody of Betty(fn26)-and by virtue of the constitutional protections for religious exercise.(fn27) The Prince Court recognized that the Constitution protects the "rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it."(fn28) But that did not mean that Sarah Prince could expose her child to the dangers that might be associated with handing out unpopular literature upon the streets.(fn29) That an adult could not be precluded from preaching in this way did not establish that children were also free to do so.(fn30) The Court held that no exception was required in this case for children who sought to distribute literature for religious reasons in exchange for donations.(fn31)

The Court continued the "No Exemption Required" approach in Braunfeld v. Brown,(fn32) which involved a challenge to a Pennsylvania Sunday closing law.(fn33) The appellants were Orthodox Jews who already closed their retail establishments from sundown Friday to sun-


down Saturday because of their religious beliefs.(fn34) Closing their stores on Sunday in addition would put them at an economic disadvantage.(fn35) One owner testified that the Sunday closing law might cause him to go out of business.(fn36) The Braunfeld Court acknowledged that "appellants and all other persons who wish to work on Sunday will be burdened economically by the State's day of rest mandate."(fn37)

In attempting to determine whether an exemption from the Sunday closing law was required for those whose religious observance required a day of rest on a different day of the week,(fn38) the Court reiterated a position that it had offered in Reynolds: "The freedom to hold religious beliefs and opinions is absolute."(fn39) However, that same...

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