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

[marty.lederman at comcast.net]

That's right -- under RLUIPA and RFRA, centrality or compelled conduct is not necessary to establish an exercise of religion.  And presumably, those things are not necessary to show a substantial burden on such exercise, either.  Nevertheless, the bedeviling question remains:  How are courts to determine whether a burden is "substantial," if not by making at least some inquiry along the compelled/motivated or central/peripheral lines?

Does anyone know of any worthwhile analysis in post-RLUIPA caselaw (or the literature)?  (Once again, I recommend Chip Lupu's 1989 article for analysis of the same question under the old Sherbert test for the FEC.)

-------------- Original message -------------- 
From: "Samuel Ventola" <sventola at ventolastaggs.com> 

> 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)." 
> 
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=991284 
> 
> On 2/28/06, Volokh, Eugene 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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