What is a Compelling Governmental Interest?
Journal of Morality and Markets, (Forthcoming)
16 Pages Posted: 26 Mar 2018 Last revised: 9 Nov 2018
Date Written: March 9, 2018
In American constitutional law, governmental actions that infringe fundamental rights must survive strict judicial scrutiny. That is, reviewing courts will require the government to prove that the infringing action serves a compelling governmental interest by narrowly tailored means. A contribution to a conference on “The Role of Religion in a Free Society” at the Classical Liberal Institute at New York University Law School, this brief paper begins from the observation that the Supreme Court, in applying strict scrutiny, has used the notion of a “compelling governmental interest” for decades but has nevertheless never offered a general definition of that phrase. Moreover, the Court often avoids deciding whether a proffered governmental interest is in fact compelling by deciding the case at hand on other grounds. This paper investigates what, in general, ought to count as a compelling governmental interest, particularly in the context of religious freedom cases arising under the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.
The problem of what should count as a compelling governmental interest may seem intractable because the phrase tends to imply that government has many interests, some of which are of greater normative value than others. Thus, any account of which governmental interests are compelling would seem to presuppose a robust normative theory of government — that is, a whole political theory and maybe even a whole moral theory as well. Obviously, courts are not in a position to articulate such theories, and, even they were, any such theory would be highly controversial.
This paper suggests that progress can be made by shifting our attention from the word “compelling” to the word “governmental.” The key contention is that, in pursuing various interests or ends, different institutions in society face different cost structures, with some having a significant advantage over others in relation to given ends. For an interest to count as a compelling governmental interest, the interest must be one such that no other institution in society has a significant advantage over government in pursuing that interest. If another institution has such an advantage, although it may be perfectly legitimate for government to pursue the interest alongside the other institution, government’s pursuit of the interest cannot reasonably be said to be compelling, for the interest is already being served (and more efficiently served) by other institutions in society. The converse, however, does not hold. That is, if government has a cost advantage over other institutions in society in pursuing a given end, that fact does not, without more, make that end a compelling governmental interest. In other words, government’s having a significant cost advantage in pursuing an end is a necessary, but not a sufficient, condition of that end’s being a compelling governmental interest. The paper briefly explores these ideas in relation to some important religious freedom cases.
Keywords: compelling governmental interest, strict scrutiny, fundamental rights, religious freedom, free exercise
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