Substantial Burdens as Civil Penalties

29 Pages Posted: 19 Sep 2022

See all articles by Michael A. Helfand

Michael A. Helfand

Pepperdine University - Rick J. Caruso School of Law

Date Written: September 16, 2022


What is a substantial burden on religious exercise? This question continues to stand at the very center of religious liberty debates, animating both present interpretation of the Religious Freedom Restoration Act as well as the trajectory of future free exercise doctrine. In this article, I defend the view that courts should interpret the substantiality of burdens by examining the extent of government-imposed civil penalties for non-compliance. Doing so ensures courts avoid assessing the theological substantiality of burdens—inquiries that are prohibited by the Establishment Clause’s prohibition on resolving religious question. At the same time, a civil penalties approach to substantial burdens provides courts with a method for limiting religious liberty claims—that is, claimants would still have to demonstrate that the imposition of civil penalties constitutes a substantial burden and judges would have the opportunity to evaluate whether claimants had satisfied that burden. Critics have contended that the civil penalties approach to substantial burdens fails for a variety of reasons. But carefully following the underlying logic behind the approach demonstrates its ability to meet these challenges and provide courts with a meaningful and principled opportunity to evaluate claims for religious accommodations.

Keywords: Substantial Burden, Civil Penalty, religious exercise, religious liberty, Religious Freedom Restoration Act, Religious Freedom, free exercise, Establishment Clause, religious accommodation

Suggested Citation

Helfand, Michael A., Substantial Burdens as Civil Penalties (September 16, 2022). Iowa Law Review, Forthcoming, Pepperdine University Legal Studies Research Paper No. 2022/14, 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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