Jess Zalph * | 25.4 | Comment | Citation: Jess Zalph, Comment, A Weighty Question: Substantial Burden and Free Exercise, 25 U. Pa. J. Const. L. 953 (2023).

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In the 1970s, the British Parliament passed a public safety law that required motorcycle operators to wear helmets. They ultimately provided an exemption for members of the Sikh community, because it was not possible to wear a turban and a motorcycle helmet at the same time. Lord Chief Justice John Widgery, who had opposed this accommodation, argued that because a barrier to riding a motorcycle did not itself impede any religious practice, the law as originally written did not interfere with religion at all: it interfered only with the freedom to ride a motorcycle.

This type of debate plays out regularly in the United States. The Free Exercise Clause of the First Amendment says the government shall “make no law” that “prohibit[s]” the “free exercise” of religion. Many laws place incidental burdens on religious practice, however, and when religious individuals bring successful free exercise challenges, the outcome is often an exemption from the law. This has the benefit of allowing the law to remain basically intact while safeguarding religious liberty from undue intrusion. At the same time, exemptions from laws, particularly frequent exemptions, can undermine the laws’ public purpose and implicate the rights of others.

In part for this reason, not just any burden is sufficient to trigger the highest level of constitutional protection. In situations where courts apply strict scrutiny to a law burdening religion, courts examine as an initial threshold whether the burden on religion is “substantial.” However, courts have struggled with structuring that analysis. It is not always clear how significant (or “large”) the burden must be, and not even all unequal burdens are legally significant. Laws always burden citizens unequally; someone who wishes to ride a motorcycle is significantly more “burdened” by motorcycle helmet laws than someone who does not. At times, therefore, a law may burden members of a particular faith more than members of a different religion or more than people who do not practice religion at all, without the burden necessarily being “substantial.” Further, as will be discussed, courts tend to agree that the substantial burden test should be an objective, secular one that they can apply independent of a claimant’s subjectively perceived religious burden—but what this test should be, and how it should address subjective experience, has not been firmly established.

A comprehensive test must specify both how a burden is to be defined and how its substantiality is to be evaluated. In the motorcycle example above, should courts consider the helmet law a burden on religious exercise? Does the availability of other modes of transportation matter? Should the court or the individual be the arbiter of whether helmet laws present a legally significant obstacle to religious practice? Judicial interpretations of “substantial burden” have been varied, but historically, with Hobby Lobby v. Burwell (2014) as a notable exception, the test for it has been a rigorous one. Some cases have gone so far as to require a law to render religious exercise “impracticable” before strict scrutiny is triggered.

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* J.D. 2023, University of Pennsylvania Law School; M.A. History, 2017, Brown University; B.A. Government, 2016, Wesleyan University.