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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).
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