Varieties of Burden in Religious Accommodations
35 Pages Posted: 2 Nov 2017 Last revised: 12 May 2018
Date Written: October 27, 2017
Religious accommodation analysis often takes the form of a tripartite test. One of the factors in such a test is the presence of burden, the current judicial understandings of which have been inadequate to capture a wide range of impact that government regulations have on the individual or community practice of religion. This paper considers and compares the jurisprudence of the high courts of the United States and Canada and the European Court of Human Rights and argues for an expansive understanding of the burden requirement in the evaluation of religious accommodation claims, namely to consider burden as (1) coercion, (2) impact and (3) ratification. I argue that it is imperative to acknowledge different kinds of burden before proceeding to determine its gravity. This approach takes religion more seriously than prevailing approaches and, provides for a more equitable distribution of the burden of proof in religious accommodation claims.
Keywords: Substantial Burden, Infringement, Interference, Law and Religion
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