It’s astounding, especially after the Supreme Court’s ruling two years ago in Hobby Lobby, that so many judges and commentators persist in conflating the exercise of religion and substantial burden components of the Religious Freedom Restoration Act. As the five dissenters from the Tenth Circuit’s refusal to rehear the Little Sisters’ case en banc explained:
When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?
Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief.… But it is not the job of the judiciary to tell people what their religious beliefs are.…
To illustrate the conflation: Let’s say that the federal government determined that pork was so nutritious that all public-school students should be required to eat pork once a week. A Jewish student protests, and the federal government accommodates him by telling him, as the persecutors told Eleazar, that he could just pretend to eat pork but that he would face the standard severe penalty if he refused to play along.
Would that accommodation, because it supposedly requires so little from the student, be determined not to impose a substantial burden? Ridiculous. If the student refuses, for religious reasons, to pretend to eat pork, he is engaged in an exercise of religion within the meaning of RFRA, and the penalty for his refusal is indisputably a substantial burden on his exercise of religion. [Addendum: Mike Paulsen wrote a great essay four years ago on Eleazar and the “pork precedent” for the HHS accommodation. His essay is probably why the example came to my mind.]
That wouldn’t mean that the student would win under RFRA—the government could still try to show that the requirement was the least restrictive means of advancing a compelling governmental interest—but it would mean that the student’s claim wouldn’t be wrongly disposed of at the threshold RFRA inquiry.