Pursuant to the Religious Freedom Restoration Act (“RFRA”), government cannot “substantially burden” religious excercise—unless, of course, the substantial burden is the least restrictive means to achieve a compelling government interest. But what constitutes a substantial burden? The importance of this inquiry has been front and center in both litigation over the application of RFRA to the contraception mandate as well as in application of anti-discrimination laws to same-sex couples seeking services from public accommodations. Many courts and scholars have argued that claiming RFRA protections for complicity in the conduct of others—whether it be triggering contraception insurance coverage or providing professional services at a same-sex wedding—must fail because such complicity claims cannot satisfy RFRA’s requirement that the burden in question be substantial. Indeed, to claim otherwise would, on this view, be tantamount to writing the word “substantial” out of the statute. Others, by contrast, have argued that assessing the substantiality of a burden would constitute an impermissible inquiry into theology and thereby violate the requirements of the Establishment Clause. Such a view, however, would seem to raise significant challenges for applying RFRA’s “substantial burden” requirement, rendering a core provision of RFRA toothless. In this Article, I argue that courts, in applying the substantial burden category, should examine not the theological or religious substantiality of the burden. Instead, courts should assess the substantiality of the civil penalties triggered by religious exercise. Doing so ensures that courts can apply RFRA’s statutory standard without running afoul of Establishment Clause concerns. In turn, courts can adequately address the next wave of RFRA cases that raise important questions about the substantiality of burdens, providing a workable method for distinguishing between those claims deserving of RFRA’s protections and those that do not.
The full text of this Symposium is available to download as a PDF.