The First Amendment to the United States Constitution contains two clauses addressing religion: the Free Exercise Clause and the Establishment Clause. These religion clauses generally protect the people from government infringing on their right to freely exercise their religion and from adopting a state religion. Recent decisions by the United States Supreme Court reaffirmed the vigor of these protections. Despite the increased protections, the Court may have farther yet to go.
Over the past thirty years the lodestar of Free Exercise jurisprudence was Employment Division v. Smith, 494 U.S. 872 (1990). Under the rule from Smith only laws which discriminated against religion were subject to strict scrutiny. That is, the law must further a compelling government interest and be narrowly tailored to advance said interest. While neutral laws of general applicability were only subject to rational basis review, meaning the law is upheld if it rationally related to an important government interest. This obviously is a much lower bar, and as a result, many laws exist which severely restrict religious exercise.
The Court has sought to rectify this over the past few years. In Fulton v. City of Philadelphia, 539 U.S. 532 (2021), the Court held a law is not generally applicable if it contains a formal mechanism for granting exceptions. Simply put if the law allows individuals to petition for exemptions from its application it is not generally applicable. Similarly, the Court in Tandon v. Newsom, 593 U.S. 61 (2021), found a law not generally applicable when it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Tandon, 593 U.S. at 62. Both decisions significantly curtailed the application of Smith, in favor of protecting religious exercise.
However, the effect of these opinions is only felt if a plaintiff can demonstrate a “substantial burden” on their religious exercise. The term “substantial burden” is highly nebulous, lacking a clearly applicable standard. Some courts require a plaintiff to show the challenged law forces the individual to forgo religious precepts or prevents them from expressing their religious beliefs. See Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007). Often courts view the inquiry as deciding whether a law is “an inconvenience to religious exercise [or] a substantial burden on religious exercise.” City Walk-Urb. Mission Inc. v. Wakulla Cnty., Fla., 471 F. Supp. 3d 1268, 1284 (N.D. Fla. 2020).
The substantial burden inquiry, as presently applied in Free Exercise and RLUIPA cases, stands squarely at odds with a basic tenet of First Amendment religious jurisprudence: “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). In making decisions on what is a substantial burden versus an inconvenience, a court will inherently make value judgments about the relative importance of a religion’s tenants. How can a court not. To decide if a burden is substantial a court must logically consider the importance of the burdened conduct to some extent. It seems inappropriate for courts to be making value judgments about what parts of religious exercise it is acceptable to burden, and which isn’t.
Is it a burden to prohibit a church from operating in the only available property in a city? The Seventh Circuit has said it is not. Civil Liberties for urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). Or is it a substantial burden to deny a shul the ability to locate within walking distance of its members forcing the members, mostly elderly, to walk significantly farther in the Florida summer? The Eleventh Circuit says no. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004).
The Court’s work to reign in a rigid application of Smith is much needed and commendable. But the Court must start similarly reshaping the substantial burden inquiry or else lower courts will have no need to grapple with the neutrality or general applicability of a law.
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