Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, October 2, 2020

Incidental Burdens on First Amendment Freedoms

Very interesting essay by Charles Capps in Notre Dame Law Review here.


This term, the Supreme Court will revisit the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of free-exercise exemptions. But no one has discussed the implications of two lines of cases in which the Court has applied strict scrutiny to incidental burdens on speech—NAACP v. Alabama ex rel. Patterson and its progeny, and Roberts v. U.S. Jaycees and its progeny—for the problem of free-exercise exemptions. This Essay argues that, together with O’Brien, these two lines of cases support a regime in which incidental burdens on religious exercise trigger intermediate scrutiny, unless they take the form of interference with a religious institution’s selection of its ministers (the “ministerial exception”) or pressures on a person to violate her religious conscience (the “conscience exception”), in which case they trigger strict scrutiny.


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