The Substantial Burden Puzzle

10 Pages Posted: 8 Jun 2016

See all articles by Michael A. Helfand

Michael A. Helfand

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2016


This is an abridged version of Michael A. Helfand’s article, “Identifying Substantial Burdens” (forthcoming in the Illinois Law Review), where he argues that courts, in applying RFRA’s substantial burden category, should examine not the theological or religious substantiality burdens, but instead 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 are not.

Keywords: Religious Freedom Restoration Act, RFRA, substantial burden, exercise of religion, Burwell v. Hobby Lobby, Zubik v. Burwell

Suggested Citation

Helfand, Michael A., The Substantial Burden Puzzle (2016). 2016 U. Ill. L. Rev. Online 1, Pepperdine University Legal Studies Research Paper No. 20, Available at SSRN:

Michael A. Helfand (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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