Free Exercise plaintiffs no longer have to prove a substantial burden on their religious rights

The Court of Appeals has adjusted the plaintiff's burden of proof in religious discrimination, holding for the first time that the plaintiff does not have to show the government caused a substantial burden on the plaintiff's religious practices. Instead, any burden on religious exercise will violate the Free Exercise Cause.

The case is Kravitz v. Purcell, issued on November 27.The plaintiff is a Jewish inmate at a state correctional facility. Correction officers prevented him from observing the Jewish holiday of Shavuot on two consecutive evenings, when other Jewish inmates pray and eat together. The officers denied plaintiff this opportunity in some crude and offensive ways, telling him at one point, "fuck you, shut up." They said other similar things. The statement of facts depicts correction officers whose callousness was such that they never thought any of the inmates would sue them. But plaintiff did. The district court dismissed the case, holding that, even if plaintiff's account was true, there was no substantial burden on his religious exercise, in part because plaintiff was able to celebrate the holiday even if the CO's shortened the celebration without any good reason. 

The "substantial burden" test originated in Sherbert v Verner (1963), a free exercise of religion case. Subsequent cases interpreted Sherbert to require a substantial burden showing for the plaintiff to win. In Employment Division v. Smith (1990), the Supreme Court appeared to reject the substantial burden test in holding that governmental practices that apply to everyone are legal under the Free Exercise Clause even if they impact your religion. The reasoning in Smith, the Second Circuit (Menashi, Jacobs and Kearse) says, appears to reject the substantial burden test, yet courts have still applied that test for the last 33 years, perhaps because the Court in Smith did not come right and say that the substantial burden test has been retired and that the real test is whether the plaintiff sustained any burden at all, substantial or not. 

The problem with the substantial burden test, the Court of Appeals says, is that it requires judges to use their own judgment in determining whether the violation of someone's religious rights is worthy of a lawsuit. Judges are not in a position to exercise that judgment, and "It is not appropriate for judges to determine the centrality of religious beliefs, and indeed the Court has warned that courts must not presume to determine the place of a particular belief in a religion."

On this revised interpretation of the First Amendment, Kravitz survives summary judgment, as a jury may find that he sustained a burden on his religious rights when CO's interfered with his religious observance. Other Circuits have already issued rulings like this, including the Third Circuit, Fifth Circuit and Ninth Circuits. However, since the Fourth, Eighth, Tenth and D.C. Circuits still hold firm on the substantial burden test, this case is ripe for Supreme Court review. Prediction: the Supreme Court will find that the substantial burden test is no longer good law, and it will adopt the reasoning in this case.