Emory Law Journal


Eric H. Wang


In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people—including Justice Alito in his concurrence in Fulton v. City of Philadelphia—are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion.

Yet, both before and after Smith, what exactly has constituted a “substantial burden” on religion has been far from clear. While some courts indicate that burdens on religion can only exist when the state threatens penal consequences or the withholding of benefits to coercively pressure religious adherents to forgo their faith, other courts indicate that burdens can also exist when the state—without coercion or pressure—directly prevents or hinders persons from exercising their faith. While some courts have suggested that the substantiality of a burden on religion hinges on the weight of the penalties or losses that the state attaches to a claimant’s exercise of religion, other courts have also measured substantiality by examining whether the religious exercise affected is central, obligatory, or mandated.

Not only have existing conceptions of burden conflicted with one another, but some definitions of “substantial burden” also leave room for the state to effectively prevent religious activity without being subject to heightened scrutiny. Other definitions have failed to clarify when burdens cross the threshold of substantiality. Some definitions prompt courts to engage in ill-equipped decision-making that risks violating the Establishment Clause. And still other definitions run afoul of the Free Exercise Clause itself.

In the wake of these problems, this Comment proposes a definition of “substantial burden” by starting from the operative verb of the Free Exercise Clause—to prohibit. This Comment argues that the state imposes a substantial burden on religion when it creates a de jure or de facto ban on any form of religious exercise—i.e., when the state legally forbids or effectively prevents the exercise of one’s religion. Whenever neutral, generally applicable laws create such a burden, they should be subject to strict scrutiny. The definitional framework proposed by this Comment can exist alongside the existing doctrine that laws (including facially neutral ones) that discriminate against religion, and thus fall outside of Smith, should be subject to strict scrutiny.

As this Comment argues, defining substantial burdens (in the context of neutral laws of general applicability) to include de jure and de facto bans on any religious exercise not only better comports with the text of the Free Exercise Clause itself, but also mitigates many of the problems raised by definitions of “substantial burden” used by courts in the past few decades. While this Comment’s de jure and de facto framework does not purport to solve all of these problems, it provides a structured way for judges and legislators alike to think more rigorously about constitutionally faithful standards that might replace Smith should it be overturned.