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The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion." That doctrine soon was overruled, and a series of cases from the 1960s through the '80s, known as the Sherbert line, or the Sherbert-Yoder line, established that even generally applicable health, welfare, and safety regulations could be struck down if their burden on religious practice, however accidental, did not meet certain constitutional requirements. The Sherbert line of cases boldly asserted that for a law of general applicability to bind religious objectors, the state must demonstrate a "compelling state interest." Yet, the rhetoric of the Sherbert line notwithstanding, rather than employing a "compelling state interest" test or "strict scrutiny"- both names for the most demanding standard of judicial review-the Court in fact was applying an intermediate and more refined level of scrutiny. The Court balanced the state's regulatory interest against the burden imposed on the religious adherent's practices, accounting for (albeit subconsciously or implicitly) the availability of alternative means for both parties. As a result, later cases in the Sherbert line declined even to employ the language of "compelling state interest" or "strict scrutiny." As ...

Supreme Court currents are no less treacherous to navigators than are river currents-and, as Michael Paulsen himself has previously pointed out, RFRA shares more than a linguistic resonance with a river.1 Unfortunately, this time Paulsen has let himself be fooled by the prevailing political winds into believing that there will be smooth sailing for his favorite statute despite the swirling eddies ahead. He is altogether too confident of a favorable result. Although I have no wagers, public or private (and I am shocked-shocked!-to find gambling in this establishment) on the outcome of Boeme v. Flores, I want to use my editorial prerogative to take issue with my colleague's predictions. Indeed, he seems to have things exactly backward.

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's protection. The analysis in these cases is turning largely on whether courts find that the HHS mandate imposes a "substantial burden" under RFRA. RFRA prohibits the government from imposing a "substantial burden" on a person's religious exercise unless the government proves that imposing the burden is the least restrictive means of advancing a compelling government interest. To date, every court to find a substantial burden has entered a preliminary injunction. Thus, determining whether or not the mandate imposes a "substantial burden" is crucial to the outcome of these cases. Why have six courts denied relief while most other judges have granted it? One part of the answer is that these courts have wrongly concluded that religious liberty rights disappear when an organization earns profits—an error I have discussed at length elsewhere. This essay will explore a second error made by these outlier courts in applying RFRA's "substantial burden" test. Properly understood, RFRA's "substantial burden" analysis examines whether the government is coercing a believer to abandon a religious exercise (i.e., religiously-motivated conduct or abstention from conduct). Once sincerity of the religious motivation is established—an issue the government has not been contesting in the mandate cases—the underlying religious reasons for the religious exercise should be entirely irrelevant.