Insubstantial Burdens

In order to win a claim under the Religious Freedom Restoration Act (or “RFRA”), you have to show that your religious beliefs have been “substantially burdened” by a governmental law or practice. In her dissent to Hobby Lobby, Justice Ginsburg accused the majority of taking an approach to defining “substantial burden” that abdicated the judicial role in determining what a substantial burden was. In her dissent to the denial of cert in the Wheaton case, Sotomayor advanced the same line. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.” Whether or not the position Ginsburg and Sotomayor attacked was really the Court’s isn’t my main concern, because I think it is a position worth taking seriously. That position — which I will call the “fully subjectivist view” — holds that the definition of substantial burden (and so whether there is a substantial burden) should be entirely up to the plaintiff. There are familiar reasons to take the fully subjectivist view seriously. Courts are ill-equipped to decode what people’s religious beliefs really are, and this extends to decoding when those beliefs are substantially burdened. More strongly, there is a tradition that says decoding people’s religious beliefs and when those beliefs are burdened is really none of the court’s business. The fully subjectivist view is a natural extension of these principles. I feel the pull of these principles, too, and I want to resist them only slightly. Accordingly, I defend in this essay what I will call the partially subjectivist view. On this view, the courts should largely defer to plaintiffs as to what is a burden on their religious belief. There is only a minor requirement that the plaintiffs show to make that burden substantial — and that is that the government is actually doing something to the plaintiffs. Not all bad things that the government does or that have effects on one’s practice of religion are really burdens on you. But if the plaintiffs do show this — that the government is actually pressuring them — then I think they have done all we really should require of them