Interpreting the Free Exercise of Religion: The Constitution and American Pluralism

By Bette Novit Evans | Go to book overview

7
BURDENS ON RELIGIOUS EXERCISE

TO PROHIBIT AND TO BURDEN

The opening words of the First Amendment are a clear admonition against searching for legal understanding in the literal meaning of the individual words. The religion clauses read: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." To "prohibit" a religious exercise is indeed a very serious infringement on religious liberty, but it is only one of the ways in which liberty may be trammeled. At least since Sherbert v Verner, 1 the Court has considered First Amendment issues invoked when religious exercise is burdened. But what constitutes a burden, and how serious must it be to present a constitutionally cognizable problem? How confident can we be in distinguishing a major impediment to religious worship from a de minimis annoyance?

The notion of a burden serves as another threshold to the Free Exercise Clause -- or in Ira Lupu's words, a "gatekeeper." Lupu argues that recent court decisions have raised the threshold, allowing judges to avoid constitutional issues by determining that harms to religion are insufficiently serious to trigger constitutional protection. 2 Any full account of religious freedom must include an account of what harms religion, and that involves thinking about the ways religion is vulnerable. In keeping with our nonessentialist approach to religion in general, in this chapter I will argue that burdens to religious freedom cannot be reduced to any single element.

Harms to religious freedom are experienced in a variety of ways. This chapter begins by surveying and analyzing the ways that government acts may adversely affect religious exercise. The remainder of the chapter is de-

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Interpreting the Free Exercise of Religion: The Constitution and American Pluralism
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Acknowledgments ix
  • Introduction 1
  • 1- The Search for Principles 11
  • 2- Definitions of Religion Under The Free Exercise Clause 46
  • 3- Burdens to Religious Beliefs 76
  • 4- The Nature of Religious Exercises 98
  • CONCLUSIONS 119
  • 5- The Autonomy of Religious Institutions 121
  • 6- Threats to Religious Identity 168
  • 7- Burdens on Religious Exercise 182
  • 8- Accommodating, Exempting, and Balancing: Religious Freedom and the Political Process 204
  • 9- The Pluralist Theory of Free Exercise 228
  • Conclusion 246
  • Notes 247
  • CHAPTER 9 285
  • Index 289
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