Inviting an Impermissible Inquiry? RFRA’s Substantial-Burden Requirement and “Centrality”

Abstract

The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substantially burdening a person’s religious exercise unless the government can satisfy strict scrutiny. The statute also defines religious exercise to prohibit courts from inquiring into how central a particular religious exercise is to a person’s religion. “The term ‘religious exercise,’” reads the relevant provision, “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

Despite this prohibition on centrality inquiries, some scholars argue that RFRA’s substantial-burden element requires courts to consider the religious costs a law imposes on a religious adherent who chooses to comply with the law. This Note argues that approach is wrong. Considering the religious costs a law imposes in turn requires courts to consider the place or importance of a particular religious exercise in a person’s religion—i.e., whether it is compelled by, or central to, the person’s religion. But since 2000, RFRA has defined religious exercise to preclude such inquiries.

So how should a court conduct a substantial-burden analysis? By focusing on the secular costs (e.g., the magnitude of civil penalties) a law imposes on a religious adherent who refuses to comply with the law for religious reasons. This Note surveys four categories of substantial secular burdens under RFRA. It also restates RFRA’s substantial-burden requirement. But the main purpose of the Note is to stress what should be clear from RFRA’s text: that considering how central a religious exercise is to a person’s religion is impermissible.