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  • Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN.
  • Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN.

In recent years, a lot of the best and most interesting scholarship on law and religion has been on the theoretical side. A good deal of thought and ink has been spent, for example, asking whether religion is “special” for purposes of constitutional law, or whether there is not (or no longer) a sufficient or justifiable distinction between religious beliefs and other closely held beliefs. Certainly that question can have a powerful payoff in the law, but for the most part writers addressing that question have treated it at a higher level of abstraction, and acknowledged that the question might be viewed differently and answered more prosaically with the specific text, history, and jurisprudence of the United States Constitution in mind.

Now, it appears, we are back to doctrine—and, more specifically, free exercise doctrine, whether constitutional or, and perhaps especially, statutory. The two pieces discussed here—Frederick Mark Gedicks’s Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, and Michael A. Helfand’s Identifying Substantial Burdens—are fine examples of the phenomenon.

The period roughly from the 1980s through the last decade saw a good deal of discussion and development of Establishment Clause doctrine, with a focus on equality or neutrality as the central principle of that clause and reams of opinions and articles working out the doctrinal implications of that approach. It may seem odd to say that Free Exercise Clause doctrine received less attention, given the enormous importance of the Supreme Court’s 1991 decision in Employment Division v. Smith and the passage of the Religious Freedom Restoration Act of 1993. Nevertheless, Smith purported to shrink dramatically the opportunity to bring Free Exercise claims at all, and a good deal of the discussion of Smith and its implications was more theoretical than doctrinal.

But the Supreme Court’s closely divided decision in Burwell v. Hobby Lobby Stores, Inc. has led both courts and church-state scholars to refocus their energies on the doctrine of the Free Exercise Clause—or the doctrine of RFRA, which itself recapitulates (to a contested degree) the earlier doctrine of the Free Exercise Clause. As if that were not enough, the Court again faces a RFRA case—Zubik v. Burwell, dealing with accommodations for religious non-profit organizations—whose determination will require it to clarify RFRA, and Free Exercise, doctrine. Theory is again in the eclipse, and the mechanics of legal doctrine back under the microscope.

The two articles reviewed here are excellent examples of the genre of Free Exercise doctrinalism. Both focus on the same question or questions, the very questions that the Court’s decision in Zubik may turn on as well: What is the meaning of a “substantial burden” under RFRA, and what is the role of judges in answering that question? They provide a superb examination of these questions and propose sensible answers. They demonstrate the value of good doctrinal scholarship. They also, I think, underscore its limitations, and the theoretical and political questions—above all, the question of power and who gets to exercise it—that lurk behind every piece of doctrinal work.

To state the problem already puts us squarely in the realm of doctrinalism and the larger questions it poses. The Free Exercise Clause says that “Congress shall make no law . . . prohibiting the free exercise” of religion. Textually, it does not require a burden, let alone a substantial burden. But courts engaged in judicial review understandably desire to coordinate their actions with each other, provide clear and workable guidelines for citizens and governments, and offer stability and predictability in the law. As government officers and wielders of state power, they also want the governmental project to work, in some fashion. And as lawyers and judges, they are acculturated to think in legal (or legalistic) terms, employing the language and technology of law. Any search for what the Court has famously called “judicially manageable standards” takes us into the thickets of doctrine. As constitutional law teachers know, after a few steps one is surrounded by those thickets. The constitutional text itself, or overarching principles, can become barely a memory. But those questions remain, of course. Courts want judicially manageable standards—but “manageable” according to what metric? In service of what constitutional goal or value? And decided by whom?

RFRA takes us one important step away from those questions, to be sure: Unlike the Free Exercise Clause, it does impose the specific instruction that government must not “substantially burden[ ] a person’s religious exercise.” As both Gedicks and Helfand note, the Free Exercise cases whose purported “restoration” lies at the heart of RFRA do not provide much clear guidance about what constitutes a substantial burden. A common way to think about the substantial burden test, Gedicks observes, is to divide it into two questions: “(i) the suffering of ‘substantial religious costs’ if the claimant complies with the burdensome law, and (ii) the suffering of ‘substantial secular costs’ if the claimant violates it.” (Gedicks, P. 3.)

The problem with this—if it is a problem—is that, as Helfand puts it, “the Establishment Clause is typically understood to prohibit courts from investigating matters of religion and theology. And so evaluating the theological substantiality of a person’s religious exercise would seem to be off limits. On the other hand, RFRA requires courts to determine not only whether a burden exists, but whether that burden is substantial. And, therefore, courts, in enforcing the statute, cannot simply defer to the assertions of a litigant” that a substantial burden exists. (Helfland, P. 3.)

Gedicks asserts that this is indeed a problem, and a big one. If courts must defer to a religious claimant’s theological assertion that a substantial burden exists, those claimants are given a free pass over the first major hurdle of the test. Courts could scrutinize the claimants to make sure they are sincere and not acting fraudulently, but neither the government nor courts have much appetite for that inquiry. In Gedicks’s view, the secular burden test is not much more difficult in practice: “It is the rare law whose violation triggers only trivial sanctions.” (Gedicks, P. 5.) Thus, “If judicial review is confined to claimant sincerity and secular costs, the substantiality of a claimed religious burden under RFRA is effectively established by the claimant’s mere say-so.”(Gedicks, P. 5.) That still leaves the balancing portion of the RFRA test. But strict scrutiny is supposed to be, well, strict, and so one either waters down the balancing test, or hands religious claimants nearly wholesale victory and incentivizes more claims.

Neatly mustering a variety of sources and arguments, Gedicks asserts that “[t]he Court’s own precedents, RFRA’s text and legislative history, and the need for independent substantive assessment of substantiality to preserve the rule of law, together provide compelling authority for judicial review of the substantiality of religious burdens alleged by RFRA claimants.” (Gedicks, P. 17.) Judges and scholars have read the rule against answering “religious questions” too broadly. The proper rule is that courts cannot “decide a case involving a theological question by answering that question; they are fully empowered, however, to decide such cases by reliance on principles of secular law.”(Gedicks, P. 18.) The key here is to find the “right” secular-law principles that ought to govern in RFRA cases. Here, he turns to “traditional legal principles governing responsibility for private wrongs—namely, factual causation in tort and products liability.” (Gedicks, P. 24.)

Using the set of cases consolidated in Zubik as an example, Gedicks identifies several doctrines that he thinks best correspond to the different questions raised by those cases. Some of the lower courts in these “nonprofit contraception” cases went too far in dismissing the RFRA claims, “reject[ing] the claimants’ apparently theological conclusions about complicity and scandal for not making rational sense from the panel’s secular perspective.”(Gedicks, P. 27.) They should instead have “enlist[ed] common law tort principles as secular sources for measuring the substantiality of burdens on religion in the religious nonprofit cases.”(Gedicks, P. 28.) Claims involving a health plan purchased from a third-party insurer ought to be evaluated using principles of causation in fact; cases involving plans that are self-insured and administered by a third-party administrator should be analogized to the law of distributor liability for defective drugs; and cases involving “church plans” exempt under ERISA should be decided with reference to intervening cause doctrine. Gedicks shows skillfully that employing these analogies can help impose some reasonable legal boundaries on what constitutes a “substantial” burden under RFRA, and thus help implement Congress’s desire to limit RFRA claims to those cases meeting a standard of “objective substantiality of alleged burdens on religious exercise.” (Gedicks, P. 22.)

Helfand agrees that “courts must differentiate between substantial and insubstantial burdens if RFRA is to serve its filtering function of only protecting against the more egregious impositions on religious exercise.”(Helfland, P. 17.) But he is not convinced that Gedicks’s analogy-mining exercise avoids the problem of courts deciding theological questions: “A court cannot reject the religionist’s experience of a substantial burden simply because that experience would be insubstantial if evaluating against prevailing legal standards. To do so, notwithstanding the attempt to employ secular legal standards, would be to take the court’s understanding of religious obligations as relevant over and above the claimant’s understanding. And it is precisely that type of analysis that violates the strictures of the Establishment Clause.” (Helfland, P. 20.)

Instead, Helfand proposes that courts “consider whether, by engaging in religious exercise, persons will be subject to some civil penalty.” (Helfland, P. 22.) Sometimes, the civil penalty will involve “an additional cost or tax for engaging in governmentally regulated conduct.” (Helfland, P. 22.) In other cases, the penalty will “be framed as a sanction for non-compliance with a governmental rule.” (Helfland, P. 22.) In either case, the court’s primary role should be to “evaluate how substantial those [civil] penalties are.”(Helfland, P. 22.) This approach, Helfand contents, best comports with the broad goals and limits of RFRA without introducing inequalities between different religious claimants or practices: “To focus exclusively on the substantiality of a civil penalty would provide protection to all forms of religious practice, regardless of their internal religious significance, but would only do so where the costs imposed by the law for engaging in those practices was too high.” (Helfland, P. 24.)

That test would not leave courts without tools for cabining RFRA claims. One such tool, of course, is the possibility of balancing: of showing that a substantial burden is “the least restrictive means [of] achieving a compelling government interest.” Another is the sincerity inquiry. While courts should not generally impose their own views of what constitutes a reasonable or a ridiculous religious belief, accommodation claims that “assume facts that are increasingly outlandish[,] veering further and further away from commonly-held scientific truths,” might allow courts reasonably to question whether such claims are “truly sincere.”(Helfland, P. 32.) In short, courts “should respond to substantial burden claims not with substantial burden skepticism, but increased sincerity skepticism.” (Helfland, P. 32.)

These are both excellent papers: clean, clear, and focused. They exemplify the increased interest in Free Exercise and/or RFRA doctrine, as opposed to larger theoretical questions about the necessity or unsustainability of religious accommodations. And they are exemplars of skillful doctrinal treatments of the issue. Both articles make good use of both the text and history of RFRA and the body of cases under both RFRA and the Free Exercise Clause. The fact that both authors, despite coming out in different places, share some sense of the basic problems involved in the substantial burden test, and agree that lower courts have not always gotten it right and in particular have sometimes strayed improperly into theological questions, suggests that there are some core doctrinal problems here, that there is a need for more guidance from the Supreme Court—and that there are resources available to help craft a clearer test and provide more guidance.

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here.

This is particularly evident in Gedicks’s piece. Gedicks’s use of analogies to tort law is skillful and may be useful. Unless I am mistaken, however, Gedicks does not provide any thorough justification for choosing these analogies, or for shifting analogies for different categories of contraceptive accommodation claims. His ultimate justification for his proposals is that “[j]udicial maintenance of [the] boundary” between “substantial” and “insubstantial burdens is “necessary and proper to prevent RFRA from spawning a regime of exceptions that swallow the rule.” (Gedicks, P. 23.) He certainly shows that these doctrines can help maintain such a boundary. But, I think, Gedicks is more successful at showing that his proposed analogies can provide some limits in RFRA cases than at showing that they provide the right limits in each category of claim.

At a minimum, making that showing would not just require him to propose a reasonable, administrable analogy. It would also require him to canvass other possible analogies and show that they offer a poorer fit. More than that, it requires one to justify, as well as stating, the reasons why a particular analogy is useful or not. Appeals to “common sense” will not do it. Nor will appeals to the rule of law, which in any event is a contested value. A tort-law analogy would indeed allow judges to decide more and leave less in the hands of RFRA claimants themselves. On the other hand, an analogy to the Chevron doctrine of administrative law would leave the interpretation of “substantial burden” more substantially in the hands of the claimants than the courts. Which analogy is better? That depends, among other things, on a justification for Chevron itself, and on a sense of the allocation of authority and responsibility between church and state.

Appeals to policy or practicality similarly are not self-justifying. Gedicks resists a stronger focus on sincerity because “lawyers and judges have little appetite” for such an inquiry. So what? It matters if there is good reason to have little appetite for such an inquiry, and if we hold that that reason outweighs other reasons to insist on such an inquiry whether “lawyers and judges” like it or not. Lawyers and judges were reluctant to constitutionalize an Equal Protection right to legislative reapportionment. Their concerns were reasonable—but we have decided to force judges to administer this area of the law just the same.

One could certainly ask similar questions about Helfand’s proposal, which would limit courts to asking about the existence of substantial civil penalties and provide some limits through more active “sincerity skepticism” and through the compelling interest test. Whether this better serves the purpose of RFRA depends not just on the statute’s text and history, but on a broader sense of what the “religious freedom” that RFRA purports to “restore” demands.

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

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Cite as: Paul Horwitz, The Value and Limits of Free Exercise Doctrinalism, JOTWELL (April 5, 2016) (reviewing Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN, and Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN),