Fragility, Not Superiority:

Abstract. Under two federal and many state statutes—and a line of Free Exercise Clause cases that the Supreme Court rejected in 1990 but might revive this Term—courts ask if a law has “substantially burdened” a person’s religion. If so, courts will grant that person an exemption from the law unless doing so would harm a compelling state interest. Consider two issues: First, how should courts test for a substantial burden—i.e., when should the presumption of protection kick in, triggering heightened scrutiny of a law? Second, is it fair to give religion this protection if religion is no more valuable than other deep commitments in our secular age? On defining “substantial burden,” the legal texts and history are silent, and cases are few and conflicted. So this Article models a “substantial burden” test on our law’s criterion for heightened scrutiny under other liberties. That is its basis for exploring the substantial burden test and the fairness debate: Part I traces a common thread in how, when, and why our system enforces other civil liberties. Part II uses the “how” to define substantial burdens on religious liberty. Part III uses the “when” and “why” to shed light on the fairness of the resulting scheme. As Part I shows, the doctrine of many civil liberties (speech, abortion, travel, etc.) imposes heightened scrutiny on laws that incidentally deny a person some means of exercising the liberty without leaving adequate alternative means. To determine what makes an alternative “adequate,” Part I extends the case law in light of rights theory. Ultimately, the adequate alternatives principle ensures that neutral laws curbing a civil liberty will leave other ways to pursue (a) the interests served by that liberty (b) to the same degree and (c) at no greater cost. From this, the Article derives an analytic framework for gauging when an interest will need an adequate alternatives principle. First, an interest will have more need of protection, the more that laws burdening some means to the interest will leave no adequate alternatives—or the more “fragile” the interest is. Second, even an interest that is fragile—because burdens on it are likely to be too heavy—won’t need protection if it rarely faces regulatory burdens, heavy or not. Call this second feature—how often an interest is burdened at all, absent a civil liberty to prevent that—“exposure.” As doctrinally rooted criteria for an interest’s overall need for protection, these concepts create a framework for assessing all civil liberties, as Part I shows. Part II uses the framework to limit “substantial burden” findings to cases where the interests served by religion are fragile and exposed and hence need protection. The resulting test would resolve many issues that have vexed courts. It would urge deference to believers on religious questions but not on what “substantial” means, thus limiting this liberty. And it would show that just having religious motivation to do something illegal won’t justify an exemption—so, e.g., religious speech warrants no more protection than nonreligious. Yet the test would expand protection for religious minorities harmed by doctrines biased toward the mainstream. Finally, Part III deploys the framework to reorient the debate over whether it’s fair to have a civil liberty for religion but not other deep commitments that now go unprotected. For decades, both sides have assumed that this is unfair if religion is no more important than other interests. In fact, though, even if religion is no more worthy of protection, it would be fair to single out if is more needful of protection—more fragile and exposed (at least if the costs of protection force us to set priorities about what to protect). Yet critics haven’t shown that crucial nonreligious interests do need this specific protection—a civil liberty against incidental burdens. Part III considers why religious interests are fragile (and thus need protection), to guide inquiry into whether other interests are, too. As this part shows, based on widely shared premises about the possible interests served by religion, those interests are fragile because their pursuit has to be funneled into the narrow range of behaviors dictated by a believer’s particular creed. And her creed is what it is. She can’t change it just to get around the law. So if a law makes it hard for her to live as a Muslim, she can’t make up for that by living as a Mennonite. (Nor can she make up for breaking one religious duty by redoubling her fidelity to another, assuming her religion does treat them as separate duties.) Thus religion’s fragility: removing options often leaves no adequate alternatives. Is the same true of the nonreligious interests in, say, finding professional wellbeing? Will a law that blocks one job often leave people no adequate alternatives? Such questions set an agenda crucial for resolving the fairness debate. Besides this inductive approach, Part III explores a more systematic way to compare interests’ need for protection. It asks whether the thing that makes an interest important for constitutional purposes, might also tend to make the interest less fragile. Drawing on the value-pluralist theories that have long undergirded the liberal tradition, this section suggests that important interests might well be less fragile as a rule, making religion and any other important-and-fragile interests the outliers. But here, too, Part III gives only a sketch—enough to show that both sides of the fairness debate have been too quick to assume that only greater importance could justify special religious protections. Part III seeks not to settle the fairness debate but to steer it onto overlooked questions crucial to resolving it.