WHAT IS A "SUBSTANTIAL BURDEN" ON RELIGION UNDER RFRA AND THE FIRST AMENDMENT?

• Author: Girgis, Gabrielle M.
• Position: Religious Freedom Restoration Act of 1993 - Taking Stock of the Religion Clauses

ABSTRACT

What is the meaning of a "substantial burden" on religion under the federal Religious Freedom Restoration Act (and its state-level equivalents)? This question is timelier than ever, as several pending cert petitions before the Supreme Court ask it to overturn the landmark decision that spurred RFRA's enactment: Employment Division v. Smith, which held that exemptions for burdens on religion are not required from neutral and generally applicable laws. Whether or not the Court grants any of these cert petitions, judges will continue to need a clear and reliable method for identifying substantial burdens on religion. This Article considers several existing tests and proposes a new framework designed to remedy their shortcomings.

Put simply, a court's analysis of a substantial burden requires it to ask two questions: (1) What type of religious exercise does the law burden? And (2) what type of impact does the law have on that exercise? The Article develops answers to both questions, by specifying the kind of religious exercise that can be substantially burdened in the first place (what I'll call obligation and substantial religious autonomy), and by sketching several types of substantial impact laws might have on religion (what I'll call simply punitive, indirectly punitive, non-punitive, or preventive burdens). Only burdens that meet these two criteria together can properly be considered substantial. Taken together, these two prongs of the framework help us generate a taxonomy of at least eight different kinds of substantial burdens on religion.

But a challenge remains: Would judicial application of this framework--particularly, would asking what type of religious exercise the law burdens--violate the Establishment Clause? In response, the Article clarifies the kinds of Establishment Clause concerns one might have about any judicial effort to interpret the substantiality of a burden on religion. Ultimately, it finds, the proposed framework can withstand all those concerns. Finally, the Article shows more precisely how the framework would help the Supreme Court decide a number of recent and potentially forthcoming cases involving substantial-burden claims.

INTRODUCTION I. THREE TESTS FOR IDENTIFYING SUBSTANTIAL BURDENS ON RELIGION A. Religious Substantiality Tests B. The Severe Penalty Test C. The Pressure Test II. A NEW FRAMEWORK, FOR IDENTIFYING SUBSTANTIAL BURDENS A. What Type of Exercise Does the Law Burden? B. What Type of Impact Does the Law Have on Religion? III. WHEN DOES IDENTIFYING SUBSTANTIAL BURDENS ON RELIGION VIOLATE THE ESTABLISHMENT CLAUSE? IV. THE FUTURE OF SUBSTANTIAL BURDEN ANALYSIS UNDER RFRA AND THE FIRST AMENDMENT CONCLUSION INTRODUCTION

Consider this case from the Supreme Court's last term: Patrick Murphy, a prisoner on death row, approaches his execution day. In prison he has converted to Pure Land Buddhism, and he has requested that his spiritual advisor, Rev. Hui-Yong Shih, be at his side in the execution chamber--not just in the viewing room--to help him preserve focus on his rebirth in the Pure Land as he passes into the next life. The prison says no, because Rev. Shih is not one of the many state-and-prison-approved ministers who can be present in the chamber. So when the day for his execution arrives, Murphy is to die in the chamber alone. (1)

How should the Court have understood the religious liberty issues at stake here? At the eleventh hour, it granted a stay of his execution, requiring the prison to permit Murphy's advisor to be at his side in the chamber. The Justices offered two grounds for this outcome. Justices Kagan and Kavanaugh supported the stay by appeal to the Establishment Clause, as a remedy for the religious discrimination inherent in the prison's permitting advisors of other religious denominations in the execution chamber: "What the State may not do," Justice Kavanaugh wrote, "is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room." (2) But Justice Alito, in his dissent from the stay (on procedural grounds), suggested that Murphy might have a case against the prison's protocol, if he could show that "excluding Rev. Shih would impose a substantial burden on his exercise of religion." (3) The complexities of Murphy's case--and this judicial conversation about it--drive home a question that has vexed courts and scholars from the time of the American founding: When should courts grant exemptions from laws that burden religious exercise?

Federal law answers that question with the Religious Freedom Restoration Act (RFRA, which many states have adopted their own versions of), as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA). These statutes provide that exemptions are required whenever the law "substantially burdens" someone's religion, unless (1) that law serves a compelling state interest and (2) burdening someone's religion is the least restrictive way to achieve that interest. (4) But this test, known as the test of strict scrutiny, raises a further question that is surprisingly underexplored both among U.S. judges and justices and in the fields of constitutional and political theory--a question that will be the focus of this Article: How do we determine what counts as a substantial burden on religion?

Getting clearer about substantial burdens on religion is a key intermediary step toward solving the much bigger problem of exemptions. We need a good answer to this question not only as a matter of public policy--to understand the meaning of RFRA's (and RLUIPA's) "substantial burden" language in an age where religious liberty claims are ever more fraught and contested--but also, we're quite likely to see, as a matter of constitutional law. RFRA introduced the substantial burden test in response to a landmark religious liberty decision by the Court in 1990, Employment Division v. Smith. (5) There, the Court decided that neither courts nor state legislatures were required to exempt Native Americans from a law prohibiting the use of peyote, because that law was neutral in its aim (it didn't target religion) and generally applicable to everyone. (6) Prior to Smith, the Court's precedent was just the opposite: any neutral and generally applicable law that imposed on someone's exercise of religion was constitutionally suspect. Courts were expected to grant people exemptions from laws that burdened their religion, unless that burden satisfied strict scrutiny (as the least restrictive way to serve a compelling state interest). (7)

Why does this reversal in legal history matter? Because recent murmurings from the Court suggest it might be going back the other way. Quite recently, in a joint opinion authored by Justice Alito and joined by Justices Thomas, Gorsuch, and Kavanaugh, Justice Alito noted the "drastic[]" reduction in free exercise protection under U.S. constitutional law since Smith, and implicitly invited future petitioners to ask the Court to reconsider that decision. (8) Now, some petitions for a writ of certiorari do challenge Smith, with others likely to follow. (9) If the Court were to reverse Smith, then it would need a clear and reliable method for identifying substantial burdens not just under RFRA, which is part of statutory law, but also under the First Amendment of the Constitution: burdens from laws that are otherwise neutral and generally applicable would most likely be subjected to a substantial burden test, and where they were deemed substantial, the Court would then have to apply strict scrutiny.

Of course, the Court might choose to do something less than fully overturn Smith. But there's at least a meaningful chance that the Court will fully reverse it, and that makes it important for us to ask what the future of free exercise jurisprudence would look like. (10)

The goal of this Article, then, is to build a conceptual framework that courts could use to identify substantial burdens on religion, which would in turn help them decide when to apply strict scrutiny under RFRA or the Free Exercise Clause.

Part I presents three kinds of tests that legal scholars and federal U.S. courts have proposed to help identify substantial burdens. Each test fails when taken on its own, I argue, but together they help us articulate two key questions courts need to consider to determine whether a law imposes a substantial burden. First, about the kind of religious exercise that can experience a substantial burden in the first place; and second, about what the impact of a law on religious exercise must be to count as a burden at all. Only by considering these two questions together could we give courts a useful framework--or mode of analysis--for identifying substantial burdens.

Part II answers these questions, and so begins to fill out the framework. First, I offer an account of two types of religious exercise--obligation and what I will call substantial religious autonomy--that are susceptible to a substantial burden from law if they are burdened at all; and second, I sketch four categories of impact the law can have on these types of religious exercise that would create substantial burdens on them. This yields a taxonomy, so to speak, of eight different kinds of substantial burdens on religion that we are likely to see under conditions of liberal democracy and pluralism.

Some scholars, however, including those whose work I build on here, might contend that this way of evaluating substantial burdens violates the Establishment Clause. Forjudges to ask what kind of religious exercise the law burdens might seem a step too far. As Michael Helfand has argued, judicial line-drawing between burdens that are substantial and those that are not according to their theological significance for the claimant "runs afoul of core Establishment Clause prohibitions." (11) Ira Lupu and Robert Tuttle share these concerns. (12) And some scholars driven by this concern...