Substantial Burden

When deciding when and whether to accommodate religious practices under the Religious Freedom Restoration Act, plaintiffs first have to demonstrate that their religion has been “substantially burdened.” In some views, the “substantiality” of a burden refers only to the amount of pressure put on religious believers to give up or to alter their religious practice—and not on how much or what they have to change in that practice. In other words, it is mostly up to plaintiffs to say whether or not their religion is affected by the law in a substantial way.

Put simply, a court’s analysis of a substantial burden requires it to ask two questions: (1) What type of religious exercise does the law burden? And (2) what type of impact does the law have on that exercise? Burdens are deemed substantial on the basis of the answers to these two questions.