substantially motivated by religious belief

[Steffen Johnson]

i receive all of the day's posts at once, so perhaps my comments on this
thread will be covered ground.  but i think there are two elements to the
"substantially motivated" language, one of which is problematic, the other
of which avoids far greater problems.  i'll discuss them in the opposite
order.

the first element of the s/m language is its recognition that limiting free
exercise protection to cases in which the law at issue conflicts with
practices "central to" or "compelled by" religious belief is both
practically and constitutionally problematic.  it causes practical problems
because it leaves unprotected many religious practices that do not involve
traditional Western conceptions of divine law, as well as certain Protestant
traditions that hold that grace supersedes the moral law of God.  it causes
legal problems because it puts the courts in the position of having to make
theological calls about what's "central to" or "compelled by" a certain
religion, which invariably leads to a comparison of the claimant's beliefs
with those of the broader religious tradition he claims to be a part of.
the courts are ill equipped for such a role.  see thomas, 750 u.s. at 716;
frazee, 489 u.s. at 833; mack v. o'leary, 80 f.3d at 1179 (posner, c.j.).
but they sometimes forget.  see, e.g., grove v. mead, 753 f.2d 1528 (canby,
j. concurring) (explaining how secular humanism is consistent with various
threads of Christianity, including those espoused by paul tillich and
others).  the supreme court has formulated the burden requirement in various
ways, but fortunately has never quite held that it is only satisfied in such
limited circumstances.

the second element is the choice of the word "substantially," which raises
questions about how one carries that burden of proof.  in my own view, it
would be better to have it say "primarily" motivated, as one could do
something principally for economic reasons, but secondarily for spiritual
reasons (say a 60-40 split) and receive RFRA's protections.  that could have
the unfortunate side effect of watering down RFRA's protections in cases
where religion is the principal motivating factor in the conduct.  (of
course, people could make the same argument for limiting RFRA protection to
acts "compelled by" or "central to" one's beliefs, but that's a bad idea for
the reasons already discussed.)

the religious landlord cases often raise these issues.  in the cal. smith
case, for example, the court held that putting evelyn to a choice between
violating her faith and leaving the property rental business did not burden
her faith.  whatever the merits of the outcome, this holding misconceives
the nature of much religious devotion.  for many, perhaps most, religious
persons, faith is not simply a list of "do's" and "don'ts," but a way of
thinking that permeates all of life.  cf. yoder, 406 u.s. at 220 (noting
that "belief and action cannot be neatly confined in logic-tight
compartments").  for such persons, life is not neatly divisible into
"secular" and "religious" components; rather, life as a whole -- from the
most mundane tasks, to the most noble acts of service, to the most
ceremonial acts of worship -- is an expression of praise and thanksgiving to
God.  to characterize a claimant's role as landlord -- or, in gene's hypo,
as someone building an addition to their home (although there are other
differences) -- as "secular activity" without due regard for her
understanding of life's activities as a whole tragically slights their
exercise of religion by declaring -- if unintentionally -- that certain acts
are not properly a part of religious exercise.  the california rfra avoids
that error.

steffen johnson
sjohnson at mayerbrown.com

p.s.  if anyone responds, perhaps they could cc me so i get it in a timely
fashion.