To Prohibit Free Exercise: a Proposal for Judging Substantial Burdens on Religion

• Publication year: 2023

To Prohibit Free Exercise: A Proposal for Judging Substantial Burdens on Religion

Eric H. Wang

TO PROHIBIT FREE EXERCISE: A PROPOSAL FOR JUDGING SUBSTANTIAL BURDENS ON RELIGION Abstract

In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people—including Justice Alito in his concurrence in Fulton v. City of Philadelphia—are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion.

Yet, both before and after Smith, what exactly has constituted a "substantial burden " on religion has been far from clear. While some courts indicate that burdens on religion can only exist when the state threatens penal consequences or the withholding of benefits to coercively pressure religious adherents to forgo their faith, other courts indicate that burdens can also exist when the state—without coercion or pressure—directly prevents or hinders persons from exercising their faith. While some courts have suggested that the substantiality of a burden on religion hinges on the weight of the penalties or losses that the state attaches to a claimant's exercise of religion, other courts have also measured substantiality by examining whether the religious exercise affected is central, obligatory, or mandated.

Not only have existing conceptions of burden conflicted with one another, but some definitions of "substantial burden" also leave room for the state to effectively prevent religious activity without being subject to heightened scrutiny. Other definitions have failed to clarify when burdens cross the threshold of substantiality. Some definitions prompt courts to engage in ill-equipped decision-making that risks violating the Establishment Clause. And still other definitions run afoul of the Free Exercise Clause itself.

In the wake of these problems, this Comment proposes a definition of "substantial burden" by starting from the operative verb of the Free Exercise Clause—to prohibit. This Comment argues that the state imposes a substantial burden on religion when it creates a de jure or de facto ban on any form of religious exercise—i.e., when the state legally forbids or effectively prevents the exercise of one's religion. Whenever neutral, generally applicable laws create

[Page 724]

such a burden, they should be subject to strict scrutiny. The definitional framework proposed by this Comment can exist alongside the existing doctrine that laws (including facially neutral ones) that discriminate against religion, and thus fall outside of Smith, should be subject to strict scrutiny.

As this Comment argues, defining substantial burdens (in the context of neutral laws of general applicability) to include de jure and de facto bans on any religious exercise not only better comports with the text of the Free Exercise Clause itself, but also mitigates many of the problems raised by definitions of "substantial burden" used by courts in the past few decades. While this Comment's de jure and de facto framework does not purport to solve all of these problems, it provides a structured way for judges and legislators alike to think more rigorously about constitutionally faithful standards that might replace Smith should it be overturned.

Table of Contents

Introduction..........................................................................................725

I. A Brief History of "Substantial Burdens".............................729

A. Pre-Smith Jurisprudence ........................................................ 729
B. Smith, RFRA(s), and RLUIPA................................................. 736
C. Post-Smith Jurisprudence....................................................... 737

1. Definitions from the Court ................................................ 738
2. Circuit Splits..................................................................... 744

II. Mapping the Substantial Burden Terrain..............................746

A. Burdens .................................................................................. 746
B. Substantiality.......................................................................... 748
C. A Visual Taxonomy................................................................. 749

III. The Problems with Existing Definitions..................................752

A. The Shape of a Burden on Religious Exercise.......................... 752
B. Judging Substantiality............................................................. 753

1. Substantiality Focused on Religious Exercise.................... 753
2. Substantiality Focused on Consequence ............................ 755

IV. A Definitional Framework Starting from "To Prohibit".....756

A. The Normal and Ordinary Meaning of the Word "Prohibit" ... 757
B. The Constitutional History Surrounding the Text..................... 758
C. De Jure Prohibitions............................................................... 760

1. Forbidding Exercise Required by Claimant's Religion ...... 762
2. Forbidding Permissible Exercise of Claimant's Religion ............................................................................ 762
3. Requiring Acts Prohibited by Claimant's Religion............. 763

[Page 725]

4. Requiring Acts When the Choice to Not Act is an Exercise of the Claimant's Religion .......................................................... 764

D. De Facto Prohibitions............................................................. 766

1. Wlien the State Destroys Religiously Significant Objects ... 767
2. When the State Effectively Penalizes Religious Activity...... 767

V. Merits and Objections...............................................................768

A. Adherence to the Constitutional Text....................................... 769
B. Jurisprudential Merits ............................................................ 770
C. A Few Objections.................................................................... 770

1. Becoming a Law unto Himself........................................... 770
2. Objections to De Jure and De Facto Thresholds................ 772
3. The Intentionality Behind Prohibitions .............................. 774

Conclusion.............................................................................................775

Introduction

Where some concurrences are flashes of lightning, others are rolls of thunder. Justice Alito opted for the latter in Fulton v. City of Philadelphia.¹ There, in a lengthy and mighty concurrence,² Justice Alito called for an end to the free exercise standard set forth in Employment Division, Department of Human Resources of Oregon v. Smith.³ Under Smith, neutral laws of general applicability that incidentally burden religion are not violations of the First Amendment Free Exercise Clause, and religious claimants have no constitutional right to be exempt from such laws so long as they are reasonable.⁴ As Justice Alito argued, Smith deviated not only from decades of free exercise precedent, but also from the Free Exercise Clause text itself,⁵ which mandates: "Congress shall make no law . . . prohibiting the free exercise [of religion] . . . ."⁶ Thus, Justice Alito stated, it was time to "reconsider Smith without further delay."⁷

But not so fast, other Justices seemed to proclaim. After all, "what should replace Smith?" Justice Barrett asked in her concurrence.⁸ One answer was to

[Page 726]

replace Smith with the pre-Smith standard that the Court had set out in Sherbert v. Vemer.⁹ That case, and the case law that relied upon it, mandated that courts apply strict scrutiny to a government law or policy whenever the government imposed a substantial burden on a claimant's religious exercise, even if the law was neutral and generally applicable.¹⁰ To pass strict scrutiny, the government had to demonstrate that its challenged law was narrowly tailored to serve a compelling state interest; otherwise, claimants whose religion was substantially burdened by the law could be granted an exemption from it.¹¹

While Justice Barrett acknowledged the "serious arguments" made for overturning Smith, she was hesitant to do so, writing that there were "a number of issues to work through if Smith were overruled."¹² One issue concerned the content of a substantial burden: as Justice Barrett asked, "[s]hould there be a distinction between indirect and direct burdens on religious exercise?"¹³

Indeed, what constitutes a "substantial burden" on religious exercise has been far from clear, both in pre-Smith and post-Smith free exercise jurisprudence. For some courts, such a burden only exists when the government forces a religious practitioner to choose between forgoing a religious obligation and facing a direct or indirect consequence.¹⁴ For other courts, a burden can also be found even outside these dilemmas—for example, when the government takes action rendering it "effectively impracticable" for claimants to continue practicing their faith.¹⁵ For some courts, the "substantiality" of a burden derives from the weight of the penal or economic consequences that claimants will face if they choose to practice their religion.¹⁶ For other courts, "substantiality" can

[Page 727]

also derive from the importance of the burdened religious exercise to the claimant's faith.¹⁷

Uncertainty is not the only problem. For one, definitions of burden that focus solely on coercion fail to acknowledge that noncoercive government action can still effectively prohibit religious adherents from practicing their faith.¹⁸ Moreover, definitions of substantiality that require courts to assess the weight or centrality of the affected religious exercise may force courts to make determinations that they lack the expertise, if not authority, to make, and determinations whose...