3A2 [extra]. A Brief Note on the “Substantial Burden” Requirement

I’ve argued below that, if someone believes that it’s religiously wrong for him to be complicit in certain behavior, requiring him to act in such a way is a “substantial burden” on his religious practice under RFRA. This is true even if you and I might define complicity differently, and might view the particular actions involved in the case as too indirect to constitute complicity. Some readers have asked: What then does the qualifier “substantial” do?

Here’s a general summary of how the Court has defined “substantial burden”:

1. Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice. See, e.g., United States v. Lee (1982); Hernandez v. Commissioner (1989). So does requiring people not to do something that is required by their faith. Indeed, even requirements that people do something forbidden by their faith in order to get important benefits (such as unemployment compensation) are generally a substantial burden. Thomas v. Review Bd. (1981). Requirements that people do something forbidden by their faith to avoid punishment, including fines, are at least as clearly substantial burdens.

2. “While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas. And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court. Id.. “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.” Id.

3. What, then, is not a substantial burden? To give one example, “to the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is not constitutionally significant.” Jimmy Swaggart Ministries v. Board of Equalization (1990); Hernandez v. Commissioner (1989). Requiring someone to pay a tax that he thinks it sinful to pay is thus a substantial burden, Lee, though one that passes strict scrutiny. But in the absence of such a religious belief in the impropriety of paying the tax, there is no substantial burden.

4. To give another example, the interference with religious practices caused by the government’s diminishing the privacy offered to American Indian religious sites on government land doesn’t count as a substantial burden. Lyng v. Northwest Indian Cemetery Protective Ass’n (1988). Likewise, the interference caused by the government’s referring to a person using a social security number, which the person or her parents believe will “‘rob the spirit’ of [the person] and prevent her from attaining greater spiritual power,” doesn’t count as a substantial burden. Bowen v. Roy (1986). Even if the government action “interfere[s] significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” Lyng, it is not a substantial burden, so long as it doesn’t “affirmatively compel appellees, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons,” Bowen (see item 1).

So the requirement of a “substantial” burden does have force. But, under the Court’s precedents, it focuses on the nature of the government restraint. It doesn’t distinguish claims of sinful complicity in sin (even when the complicity seems to secular observers to be attenuated) from claims of supposedly more direct sinful action. Some may think that’s not a sound definition of “substantial” — but it is the definition that the Court adopted, and that RFRA apparently seeks to “restor[e].”

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