Substantial Confusion about 'Substantial Burdens'
8 Pages Posted: 12 Oct 2019 Last revised: 26 Jan 2020
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: '·substantial 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.
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