Least Restrictive Means

[A.E. Brownstein]

I think Marci overstates the case in a couple of respects.

        1. As is true of the rational basis test and intermediate level scrutiny,
the least restrictive means/compelling interest standard has always
described a range of review. Sometime this standard has been fatal in fact
(when it is applied to laws that discriminate against and materially
disadvantage racial minorities, for example). Other times it seems only
slightly more rigorous than the most severe applications of intermediate
level scrutiny (see, e.g. Burson v. Freeman). A lot depends on context.
This has been and will be true in religious liberty cases just as it is
true in other fundamental rights and equal protection cases.

        2. The idea of a least restrictive means test has always been a bit
misleading. Even if we really meant "least" as in absolutely the least
burdensome means to accomplish the state's compelling state interest, that
still leaves open the question of how we should deal with a law that
increases the burden on a right far more than the suggested less
restrictive alternative but which isn't quite as effective in furthering
the state's goal as the less restrictive alternative. Thus, in the example
Marci gives relating to faith healing families, notification may be less
burdensome than criminal sanction, but if we save a few more children's
lives with criminal sanction, a court might reasonably conclude that
criminal sanction is the least restrictive means of maximizing child safety.

        3. Least restrictive means probably doesn't mean "least" restrictive means
very often. Does a law punishing incitement to commit imminent violence in
a situation where violence is highly likely to occur pass strict scrutiny?
I think so. Could we further the state's interest without burdening speech
so much by allowing civil suits against the speaker by those victimized by
the violence or better yet ringing the group hearing the speech with armed
police. Maybe? But I do not recall a Court feeling compelled to resolve
these questions in upholding such a law.

        4. A substantial number of these issues will not be fact specific; they
are susceptible to general rules. Thus, in the faith healing example, once
the highest court in the jurisdiction determines that criminal sanction is
the least restrictive alternative, as the California Supreme Court did in a
free exercise faith healing case, the issue is effectively resolved for
state officials and lower courts.

        5. In some circumstances, a least restrictive means analysis is
essentially precluded by the nature of a religious liberty defense. In the
child protection context, for example, if a parent is accused of seriously
injuring a child (allegedly through the administration of "discipline"), I
can think of a variety of common responses by the accused. They might argue
that the child was injured by accident (they fell down the stairs), that
someone else was responsible, or that the parent was the responsible party
but they will never do it again (they were drunk or under a lot of stress,
a condition that will not reoccur.) In all of these circumstances it seems
that a range of state interventions might be appropriate, and determining
which intervention was less intrusive to the quasi-right of parental
autonomy would be a tough question.

        But now consider a religious liberty defense. For such a defense to be
meaningful, the parent must allege that 1. they were indeed responsible for
the child's injuries, 2. that they engaged in the conduct that injured the
child for religious reasons, i.e. they were compelled by G-d to do so, and
3. they will repeat this behavior because it is religiously mandated. You
don't send people to counseling to cure their religious beliefs, you accept
them or you override them to further compelling state interests. Indeed, I
think most of the factual predicates for considering less restrictive
alternatives do not exist when a religious liberty defense is asserted. In
this circumstance, I think the state is given very few choices. If it
concludes that the religious practice is, indeed, unacceptably dangerous to
the child's health and safety, it will have to intervene aggressively.

        6. As I indicated in a prior post, it is not clear to me that the least
restrictive alternative test is applicable to penalties in most cases. If
the state is justified in preventing the religious person from engaging in
a religious practice for compelling reasons, all penalties of whatever
severity that accomplish that goal are equally burdensome to the exercise
of the right. The idea isn't to identify laws and penalties that are less
burdensome to the person who wants to exercise the right in other respects,
it is to identify laws that are less burdensome to the exercise of the
right. If the exercise of the right has to be prohibited in some
circumstance, all that the least restrictive means test requires is that
the law at issue must carefully target only those religious practices that
the state has a compelling interest in preventing. But that has nothing to
do with the severity of the penalty imposed. If exposure to civil penalties
is sufficient to deter the exercise of a religious practice, I don't see
how the use of a criminal penalty as an alternative sanction burdens the
exercise of that practice to any greater degree.

        (I'm sorry to write this when you are going out of town, Marci. Feel free
to respond on or off list when you get back.)

                                                                                        Alan Brownstein
                                                                                        UC Davis
At 02:57 PM 8/15/98 EDT, Marci Hamilton wrote:
>The least restrictive means test is not redundant on the compelling interest
>test by any means.  For example, in a large number of scenarios, governments
>would have no problems proving their compelling interest for generally
>applicable regulations: child neglect arising from failure to provide medical
>treatment, spousal  and child abuse, school safety rules prohibiting the
>carrying of knives, etc.  The number of scenarios is limited only by your
>imagination.  The real fight happens when the least restrictive means test is
>added to the compelling interest test.  The best example is the one Michael
>McConnell referred to rather briefly in his Senate testimony on RLPA: how to
>deal with faith-healing families when the sick children are near death or
near
>permanent disability.  You have three choices (at least) if the child dies or
>is permanently disabled.  Which is the least restrictive?  (1) criminal
>charges against the parents; (2) wrongful death actions against the parents;
>(3) a requirement  that the family notify authorities if the child falls into
>a life-threatening situation.  The argument by the faith healers is that
>notification is the least restrictive and therefore criminal and civil
charges
>are inappropriate.
>
>Another good example is Cheema where the compelling interest test by itself
>would have prevented the Sikh children from bringing knives, period.  It was
>the least restrictive means test that led the Court to the ridiculous idea of
>having the children baste the knives into their scabards.
>
>The least restrictive means test permits those challenging a generally
>applicable, neutral law to envision an ever-better scenario for them.  As I
>said in my Christian Century piece, it provides no upward limit on the
cost to
>the government of accommodating the religious claim.
>
>I wish I were able to read the ensuing the conversation.  We leave for
>vacation today.  Good-bye for two weeks.  I will catch up in September.
>
>Marci Hamilton
>Benjamin N. Cardozo School of Law
>55 Fifth Avenue
>New York, NY   10003
>(212) 790-0215
>(212) 790-0205 (fax)
>hamilton02 at aol.com
>
>