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2016 U. Ill. L. Rev. Online 1 (2016)

handle is hein.journals/uilro2016 and id is 1 raw text is: THE SUBSTANTIAL BURDEN PUZZLE Michael A. Helfand* I. INTRODUCTION When is a burden substantial?** This question stands at the cen- ter of recent clashes between law and religion, testing the scope and ap- plication of the Religious Freedom Restoration Act (RFRA).' RFRA prohibits federal law from substantially burden[ing] a person's exercise of religion, unless doing so is the least restrictive means of furthering [a] compelling governmental interest.2 Unfortunately, the text and legis- lative history of RFRA provide limited guidance for evaluating substan- tiality. As RFRA affords protection only against substantial burdens on religious exercise, articulating a methodology for evaluating substan- tiality has become the central question in many of the most important court battles over religious liberty. Indeed, arguments over what constitutes a substantial burden have emerged as a recurring issue in the ongoing litigation over the Afforda- ble Care Act's so-called contraception mandate, which would have oth- erwise required companies to include certain forms of contraception in their employee's insurance coverage.4 The substantial burden question stood as maybe the central issue in the Supreme Court's 2014 landmark decision, Burwell v. Hobby Lobby, where the Court concluded that, pur- suant to RFRA, a requirement to provide such contraception coverage constituted a substantial burden. This substantial burden question emerged once again in Zubik v. Burwell,6 yet another challenge to the contraception mandate, which the Court decided earlier this month. In Zubik, religiously motivated non- * Associate Professor, Pepperdine University School of Law; Associate Director, Diane and Guilford Glazer Institute for Jewish Studies. ** This question is also discussed in the full version of this article, which is forthcoming in Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. (forthcoming Aug. 2016), available at http://ssrn.com/abstract=2728952. 1. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 2. 42 U.S.C. § 2000bb-1(b) (2012). 3. See, e.g., Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1213 (1996). 4. Hobby Lobby Stores, Inc., 134 S. Ct. at 2775-83. 5. Id. 6. See Transcript of Oral Argument at 10-11, 14-15, Zubik v. Burwell, 136 S. Ct. 891 (2016) (No. 14-1418). I