Substantial burden test under RFRAs as requiring religious *compulsion* vs. religious *motivation*

Samuel Ventola sventola at
Wed Mar 1 05:44:06 PST 2006

Federal RFRA, at least after the RLUIPA amendments, does not require
that the practice be "compelled."  Kikumura v. Hurley, 242 F.3d 950,
960 (10th Cir. 2001):

"Since the district court's ruling, Congress has passed the Religious
Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), Pub. L.
No. 106_274, 114 Stat. 803 (codified at 42 U.S.C. § 2000cc).  In
RLUIPA, Congress amended certain provisions of RFRA, including the
definition of "exercise of religion."  See id. §§ 7(a)(3), 8(7)(a). 
The term "exercise of religion" was previously defined in RFRA as "the
exercise of religion under the First Amendment to the Constitution." 
See 42 U.S.C. § 2000bb_2(4) (1999).  RLUIPA amended RFRA, however, so
that "exercise of religion" now means "religious exercise, as defined
in [42 U.S.C. §] 2000cc_5."  Id.  § 2000bb_2(4).  "[R]eligious
exercise" is defined in 42 U.S.C. § 2000cc_5(7)(A) to include "any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief.

     Plaintiff does not claim the requested pastoral visits were
required by his religious beliefs.  Under the definition of "religious
exercise" in 42 U.S.C. § 2000cc_5(7)(A), however, a religious exercise
need not be mandatory for it to be protected under RFRA.  Plaintiff
maintains that his desire to study Christianity and practice Christian
prayer necessitated visits by Christian pastors, and that Reverend
Rickard was particularly appropriate because of his experience as a
Christian missionary in Japan, Plaintiff's native country.  Pastoral
visits of this nature are protected activities under RFRA,
particularly in light of the new definition of "exercise of religion"
adopted in RLUIPA.  See id. § 2000cc_5(7)(A)."

On 2/28/06, Volokh, Eugene <VOLOKH at> wrote:
>        Could anyone please pass along a cite to a discussion of whether
> the substantial burden test under state RFRAs (and the federal RFRA) has
> generally been interpreted as requiring that the burdened practice be
> religiously *compelled*, or as requiring that it be religiously
> *motivated*?  Thanks,
>        Eugene
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