Substantial Confusion about 'Substantial Burdens'

8 Pages Posted: 12 Oct 2019 Last revised: 26 Jan 2020

See all articles by Chad Flanders

Chad Flanders

Saint Louis University - School of Law

Date Written: Spring 2016


As the Supreme Court rev1s1ts the clash between religious belief and the Affordable Care Act (ACA) in the Zubik case, it is worth mulling over a key phrase in the law that governs that clash: '┬Ěsubstantial burden." According to the Religious Freedom Restoration Act (RFRA), the government must-provided it does not meet certain other conditions, such as showing a compelling interest-make an accommodation if it places a ''substantial burden'' on a person's religious exercise. If the question in the Hobby Lobby case was whether a for-profit corporation could be a ''person" that ''exercised religion," the question the Court now faces is whether the government has in fact ''substantially burdened" some religious non-profits in trying to accommodate their objection to the contraceptive mandate.

But what is a ''substantial burden"? Or to put it another way, what makes a burden substantial? What follows is my best effort to provide clarity-in the form of a primer-as to the meaning of "substantial burden" under RFRA.

Suggested Citation

Flanders, Chad, Substantial Confusion about 'Substantial Burdens' (Spring 2016). University of Illinois Law Review, Spring, 2016; Saint Louis U. Legal Studies Research Paper, no. 2016-20. Available at SSRN:

Chad Flanders (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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