Definition of Less Restrictive Means

[Fred Gedicks]

When it is engaging in strict or genuinely heightened scrutiny, the Supreme Court understands "less restrictive means" to involve a balance at the margin--i.e., a less burdensome altternative that is not as effective as the government action at issue, but is nearly as effective, would count as a less restrictive means.  Without balancing at the margin, exemptions can never count as less restrictive alternatives, since they always undermine the law to the extent of the exemptions, and thus are never equally as effective as the law under attack.

In pre Smith religion clause jurisprudence, Yoder is significant for establishing that exemption is a less restrictive means so long as it does not substantially undermine the law at issue--i.e., so long as the class of potential beneficiaries of the exemption is relatively small:  Exempting the Amish from the mandatory school attendance law could not possibly have been as effective in implementing the state's goal of educating its citizenry, since this purpose was undermined by excusing the Amish children from school after the 8th grade.  The Court makes it clear, however, that the marginal drag on the state's goal caused by the exemption of a small number of Amish children is substantially outweighed by the increase in religious liberty resulting from the exemption.

I assume that this is what Eugene means by "pretty much as effective"--an less burdensome alternative that is, say, 95% as effective as the law under attack, is probably a less restrictive alternative even though not as effective.  It's also clear that the preSMith/post Yoder9th Cir language quoted by Alex Dusku adopts a balancing at the margin understanding of less restrictive alternative.

Whether any of this survived Smith is an interesting question.  Rational basis review does not involve balancing at the margin; under deferential scrutiny such as that implemented by Smith, a less restrive alternative is one that is equally as effective in implementing the state's purpose, but less burdensome--because the less burdensome alternative is equally as effective, the state's failure to choose the less burdensome alternative is irrational (or rational only in terms of a constitutionally illegitimate purpose).  Thus, exemptions are never a less restrictive alternative under Smith--this portion of Yoder seems to have been overruled.

On the other hand, balancing at the margin might be another way of understanding the implications of underinclusion:  Given that the state has already conceded the relative lack of importance of its goal by exempting some secular activities burdened by the law, what is the justification for refusing to exempt religious activities so burdened?  Since the state has already balanced in favor of exemption the marginal benefit of exempting the secular activities against the consequent undermining of its legislative goal, perhaps a judge is justified in engaging in the same analysis with respect to burdens imposed by the law on a fundamental right like free exercise.

Fred Gedicks
BYU Law School
gedicksf at lawgate.byu.edu