'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA

59 Pages Posted: 9 Sep 2015 Last revised: 22 Feb 2017

See all articles by Frederick Mark Gedicks

Frederick Mark Gedicks

Brigham Young University - J. Reuben Clark Law School

Date Written: January 24, 2017


The Religious Freedom Restoration Act (RFRA) excuses believers from any federal law which “substantially burdens” their religious exercise, unless the government shows that the law furthers a compelling interest in the least restrictive manner. Who decides if a burden is “substantial”? RFRA claimants argue that they do.

Whether a burden is “substantial” is typically disaggregated into two subquestions: Would the claimant suffer substantial religious penalties from complying with a law, and substantial secular penalties from violating it? Courts may decide the second question, but not the first, because the “religious-question” doctrine bars them from adjudicating theological issues. Courts may determine whether claimants are “sincere” in alleging substantial religious penalties, but not whether those penalties are truly “substantial.” Review of only claimant sincerity and secular penalties, however, leaves the crucial judgment of substantiality almost entirely within the control of RFRA claimants.

One need not question the sincerity of RFRA claimants to question this arrangement. It makes no legal sense to entrust the question of substantial burden to persons so self-interested in the answer, however sincere their belief. A bedrock principle of Anglo-American due process holds that no one may judge her own case. Exemption boundaries must be tended by courts, not exemption beneficiaries, lest the rule of law be swallowed by a sea of self-interested yet functionally unreviewable exemption claims.

The Supreme Court’s disposition of the religious nonprofit challenges to the contraception mandate in Zubik v. Burwell left undecided whether courts may adjudicate the substantiality of burdens on religion in light of the religious-question doctrine. This Essay explains that courts may adjudicate this issue by relying on neutral principles of secular law, and that they must do so to implement RFRA’s purpose and uphold the rule of law.

Keywords: complicity, contraception mandate, Hobby Lobby, religious exemptions, RFRA, religious liberty, religious-question doctrine, substantial religious burdens, rule of law

Suggested Citation

Gedicks, Frederick Mark, 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA (January 24, 2017). 85 George Washington Law Review 94-151 (2017), BYU Law Research Paper No. 15‐18, Available at SSRN: https://ssrn.com/abstract=2657733 or http://dx.doi.org/10.2139/ssrn.2657733

Frederick Mark Gedicks (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

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