Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion

In a number of recent cases in which government policies have been attacked as violations of the free exercise clause, courts have rejected the claims for failure to meet a threshold requirement that the challenged policy constitute a burden on religious activity. Professor Lupu criticizes the prevailing judicial definitions of burden for leading to inappropriate coverage and for creating intolerable risks of discrimination against non-mainstream religions. He proposes instead that courts adopt a common law test: a government policy is burdensome if an analogous act committed by a private individual would violate generally accepted common law norms. Professor Lupu defends this approach on historical, methodological, and structural grounds, and demonstrates its application. He then supplements the common law test by incorporating principles of entitlement and equal protection. Thus embellished, the common law test yields significant advantages over current judicial approaches to defining a free exercise burden.