Direct/Indirect Burden

The determination of whether government action under judicial review poses a “direct” or “indirect” burden upon a given right is important in both Free Speech and Free Exercise cases.

A direct burden involves an irreconcilable conflict between the individual’s religious tenets and obedience to the law, necessitating “either abandoning his religious practice or facing criminal prosecution.” For example, an order that a Catholic priest divulge information disclosed to him in a confession, on pain of being held in contempt of court, would be a direct burden on his religious practice.

On the other hand, an indirect burden is imposed by “legislation which does not make unlawful the religious practice itself,” but which does incidentally bring about a hardship, such as economic loss, upon individuals carrying on a particular religious activity. For example, a law that compelled unemployed workers to accept Saturday employment or lose the right to unemployment benefits, while valid with respect to the general population, would impose an indirect but substantial burden on a Jehovah’s Witness whose religion mandates that Saturday must be observed as the Sabbath, with work on that day thereby prohibited.

The value of the distinction lies in the basic approach of the courts to Free Exercise cases. The courts must balance the individual’s religious rights against the importance of accomplishing the secular goal and the manner in which that secular goal is pursued.