Insubstantial Burdens

This chapter articulates and defends a “partially subjectivist” way of defining burdens on religious belief under the Religious Freedom Restoration Act (RFRA). On this view, 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 have to satisfy, which is to show that the government is doing something that pressures them to act in a way contrary to their beliefs—a relatively easy hurdle to clear. In general, courts are ill-equipped to determine what people’s religious beliefs really are, and this extends to determining when those beliefs are substantially burdened. More strongly, there is a tradition that says evaluating when people’s religious beliefs are burdened is really none of the court’s business. The partially subjectivist view honors these principles.