compelling interest test : RLUIPA v. Turner

[Mark Sabel]

I think this has been the topic of list discussion before, but I am trying
unsuccessfully to figure out exactly what a compelling interest is for
purposes of distinguishing between the RFRA/RLUIPA standard and the
Turner/O'Lone First Amendment standard.

 

It's been said that cost and administrative convenience are not compelling
interests, a holding which has been attributed to Memorial Hospital v.
Maricopa County, 415 U.S. 250 (1974), which sort of says the first and
doesn't quite say the second.  There are a number of cases at this point -
under RFRA/RLUIPA and otherwise - that find cost or administrative issues to
be compelling, or acknowledge that they could be.  Most of the cases that
I've seen so far that reject or question the government's case under a
compelling interest standard actually go off on whether the compelling
interest was actually at risk, or whether there was a less restrictive
alternative that might do less damage to it.

 

So does anyone have citations that actually zero in on what is and isn't
compelling for these purposes?  At this point, with respect to cost, the
strongest thing I have found is the language of RLUIPA itself, which says
generally that government can be required to spend money, which is at least
more favorable than the Turner/O'Lone "de minimis cost" catchphrase.

 

There are a few law review articles on this subject, but they apparently
tend to emphasize theory and method.

 

 

Thank you,

 

 

Mark Sabel  

 

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