What Makes a Burden Substantial?

Under the terms of the Religious Freedom Restoration Act, courts engage in a kind of burden shifting framework.  The burden is initially on the religious claimant to make out a prima facie case that whatever the government has done has imposed a “substantial burden” on its religious beliefs and/or practices.  If it can do this, the burden shifts to the government to show that the substantial burden is justified by a compelling interest and that it has used the least restrictive means to achieve its compelling interest.

There has been some discussion about what it is that would make a “burden” qualify as “substantial” under RFRA.  It seems to me that the gravity of a burden is frequently intimately connected with the centrality, or importance, of the belief that is felt to be burdened: the more central, or important, the religious tenet or view, the greater the obligation that the claimant will feel in adhering to it, and the more substantial will be the burden felt by the claimant in having to endure not adhering to it.  Yet RFRA eliminated the inquiry into centrality.  That decision was, I think, intended to prevent courts from making judgments about (a) how important a belief was, in order to determine (b) how severe or substantial the burden was.  One reason for eliminating the centrality inquiry was an establishmentarian concern; another was a concern about competence.  

The difficulty is that the standard continues to be a “substantial” burden.  That cannot only mean a burden as to which a claimant sincerely objects on religious grounds.  But how would one determine a burden’s substantiality without being permitted to inquire at all about a belief or practice’s centrality, or importance?  I’m not even sure what the inquiry would look like.  And that may be why, in the RFRA case law, one tends to see a great deal of deference to the claimant about what constitutes a “substantial” burden in the first place (and cases often get resolved under the compelling interest leg) — exactly because of the danger that an inquiry into the burden’s gravity, or substantiality, can easily bleed over into an inquiry about the belief or practice’s centrality, or importance, within the religious system.  Sometimes one sees the statement that a substantial burden is one where the state puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”  Thomas v. Rev. Bd.  But that only seems to restate a kind of subjective test — how much pressure is “substantial pressure” will depend upon an inquiry about the nature of the coercion felt by the claimant in light of the religious belief’s importance to the claimant.  Pressure only matters if the belief is religious (not generally a question) and about something important…or central.  That is, a claimant is sensitive to pressure if government is squeezing a pressure point.  But because centrality is no longer a cognizable concern, we are necessarily left with a healthy measure of deference to the claimant’s feelings about the quality of the burden.

God’s Candidate

In December, we posted about the Russian Orthodox Church’s expressions of support for protests against the results of parliamentary elections, widely seen as fraudulent, that returned Vladimir Putin’s United Russia party to power. At the time, we noted, some observers said the Church’s support was actually strategic, a political device meant to help Putin by co-opting the protests before they went too far. Some evidence for that analysis: this week, Putin traveled to the Danilov Monastery, headquarters of the Russian Orthodox Church, to receive the endorsement of Orthodox Patriarch Kirill. According to reports, the Patriarch told Putin that his time in charge of Russia had been a “miracle” for the Church and the country. In return, Putin told the Patriarch that the Church deserved more time on Russian television. Other religious leaders also gave their endorsement at the meeting, including Russia’s chief rabbi and the head of  Russia’s council of muftis. “Muslims know you,” the latter told Putin. “Muslims trust you. Muslims are wishing you success.” Nice when religious leaders can find common ground like this.