A Few Thoughts on the Nature of Substantial Burdens on Religious Exercise

I’ve put them down over at the Liberty Law blog. A bit:

Making any sense of the inquiry would require adopting some definitions. A burden on religious exercise is a weight on it—or, less, metaphorically, it is simply an interference with religious exercise. “Interfere” is the term used by the Religious Freedom Restoration Act in its “Congressional Findings and Declaration of Purpose”: “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Interference may be intentional or unintentional, but it is interference in either case. Interference might be compulsion to do or not do certain things, but it also includes any governmental act that would frustrate the claimant’s capacity to exercise his or her religion. A governmental act that interferes with the ability of a claimant to believe or practice his or her faith burdens it.

What about “substantiality”? Here, the text of another religious accommodation statute, the Religious Land Use and Institutionalized Persons Act of 2000, suggests an answer: The substantiality of the burden is to be measured against the “system of religious belief” of which the religious exercise at issue forms a part. A system is a group of interdependent items—in this case religious beliefs and practices—that together constitute a unified whole.

This is a small fragment of what will be two longer reflections on the subject: one in an on-line symposium of the Illinois Law Review and another in a player to be named later. More soon.

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