The Meaning of Substantial Burden for Religious Accommodation

The Religious Freedom Restoration Act established three tests for religious accommodation.

  1. Is the government imposing a Substantial Burden on the exercise of religion?
  2. Is it doing so to achieve a Compelling Government Interest?
  3. Is is using the Least Restrictive Means of furthering the Compelling Government Interest?

If the answer to #1 is yes but the answer to #2 or #3 is no, the government is wrong to deny requests for religious accommodation.

In 2020, Department of Defense Instruction 1300.17 applied these standards to religious accommodation in the armed forces.

The exact definition of “substantial burden" is still being litigated. Among the factors that courts have said could create a substantial burden are:

  • Religious Importance. How important is the religious principle or practice to the individual? 
  • Penalty. How big is the penalty for violating government policy? 
  • Pressure. How much pressure is the government on an individual to violate their religious principles? 

Two legal scholars who have published articles on this are Chad Flanders and Gabrielle Gorges. 

Flanders argues that pressure is the only relevant factor, and that any government pressure is substantial. Apart from evidence of insincerity, courts should take the applicants at their word and look solely at the compelling government interest and least restrictive means test. 

Girgis, on the other hand, doesn’t believe that the government can avoid looking at the religious significance of the requested exemption or accommodation. She identifies religious obligations and exercises of religious autonomy as central to the substantial burden standard. The government substantially burdens these exercises of religion through direct or indirect penalties, denying access to public benefits, or preventing the exercise of religion through government action. 

This a part 2 of a series on Religious Accommodation in military services.

  1. The Evolution of Army Policy on Religious Accommodation
  2. The Meaning of Substantial Burden for Religious Accommodation
  3. The Elements of Religious Accommodation Requests
  4. The Chaplain’s Role in Requests for Religious Accommodation

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