A Proxy for Piety: A Closer Look at Religious Cost in the Substantial Burden Inquiry

Authors

Philip Andrew B. Wines, Fordham University School of Law

First Page

29

Keywords

substantial burden; Religious Freedom Restoration Act; RFRA; Religious Land Use and Institutionalized Persons Act; RLUIPA; religious cost; theological cost; secular cost; Free Exercise Clause; religious question doctrine; Establishment Clause

Abstract

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law with politically fraught religious exemptions. This Comment discusses the work of leading scholars and evaluates their positions using formal logic to determine how courts might best resolve this conflict. Ultimately, this Comment concludes that judicial evaluation of claimants’ religious cost by a secular “proxy concept” permits the courts to rule on the merits of free exercise claims without jeopardizing constitutional adherence.

Recommended Citation

Philip Andrew B. Wines, A Proxy for Piety: A Closer Look at Religious Cost in the Substantial Burden Inquiry, 93 Fordham L. Rev. 29 (2024).
Available at: https://ir.lawnet.fordham.edu/flro/vol93/iss1/3