Religious Freedom: Why States Are Unconstitutionally Burdening Their Own Citizens as They “Lower” the Burden

Jason Goldman, Cardozo Law Review

Student Note

Abstract

Part I of this Note traces the development of the Supreme Court’s First Amendment precedent, including a discussion of Congress’s enactment of Federal RFRA. Part II introduces the states’ legislative efforts with regard to free exercise statutes, culminating with the problematic “burden” RFRA movement. Part III outlines a brief history of both the Establishment Clause and Separation of Powers doctrine, and analyzes how “burden” RFRAs are unconstitutional in light of each, respectively. Part IV discusses the implications of this progressive trend, specifically focusing on the boundless government litigation, civil rights concerns, and the health and safety issues that have resulted. Part V then proposes that the more effective and prudent approach is to return the religious free exercise discussion to the judicial arena by adopting pointed RFRA statutes with distinct levels of scrutiny that can guide the courts in making sensible and fact-specific exemptions to certain government regulations.