Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 4-1-1996 Incidental Burdens on Fundamental Rights Michael C. Dorf Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the Constitutional Law Commons Recommended Citation Dorf, Michael C., "Incidental Burdens on Fundamental Rights" (1996). Cornell Law Faculty Publications. Paper 105. http://scholarship.law.cornell.edu/facpub/105 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. Content downloaded/printed from HeinOnline (http://heinonline.org) at Tue Nov 25 19:29:15 2008 Citation: 109 Harv. L. 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Except as specifically provided above, you are prohibited from downloading, storing, reproducing,transmitting, displaying, copying, distributing, or using any portion of the Database. Without limiting the preceding sentence, you shall not download or print an entire issue or issues of a publication or journal within the Database. You may contact HeinOnline by telephone or in writing in order to obtain a printed copy of one or more entire issues of such a publication or journal subject to payment of any applicable charge. Other terms apply to this subscription. See the complete license at heinonline.org. VOLUME 109 APRIL 1996 NUMBER 6 HARVARD LAW REVIEWI ARTICLES INCIDENTAL BURDENS ON FUNDAMENTAL RIGHTS Michael C. Dorf TABLE OF CONTENTS PAGE I. WHY INCIDENTAL BURDENS MATTER ..................................... 1182 A. Text ............................................................... 1185 B. History and Structure ................................................ i86 C. Normative Considerations ............................................ 1194 If. CURRENT DOCTRINE .................................................... 1199 A. Incidental Burdens on Speech ........................................ 1200 B. Incidental Burdens on Free Exercise of Religion ........................ 1210 C. Incidental Burdens on the Unenumerated Right to Privacy ............... 1219 I. IMPLICATIONS, APPLICATIONS, AND LIMITATIONS ................................ 1232 A. Application of the Substantiality Threshold to Targeted Burdens .......... 1233 B. Incidental Burdens and Facial Challenges .............................. 1240 C. The Substantiality Threshold .......................................... 1243 D. Nonprimary Conduct Rights .......................................... 1246 IV. CONCLUSION ........................................................... 1251 "175 1176 HARVARD LAW REVIEW [Vol. 109:1175 INCIDENTAL BURDENS ON FUNDAMENTAL RIGHTS Michael C. Dorf* Nearly every governmental action has the incidental effect of burdening some funda- mental constitutional right. In this Article, ProfessorDorf argues that constitutional text, history, and structure, as well as normative considerations,require that courts treat these burdens seriously. How, though, can government recognize these incidental burdens with- out rendering itself powerless to achieve its legitimate ends? Professor Dorf analyzes the Supreme Court's approach to incidental burdens on free speech, free exercise of religion, and privacy rights. In these areas, he discerns a ten- dency to apply close scrutiny to incidental burdens that are "substantial." He then ar- gues that the nature of the impinged right should also influence the Court's approach to an incidental burden. Finally, ProfessorDorf reexamines common understandings of the distinction between direct and incidental burdens. He contends that his proposed framework ought to be applied not only to incidental burdens, but also to direct burdens on conductfacilitating the exercise of a fundamental right. Burdens on equality norms, however, need not be substantial to elicit close scrutiny. F UNDAMENTAL constitutional rights1 are burdened in two prin- cipal ways. First, the government sometimes singles out protected activity for disadvantageous treatment. For example, a state statute might specifically prohibit flag-burning 2 or the use of contraceptives. 3 Second, the government sometimes enforces a law that does not, on its face, regulate protected conduct, but that has the incidental effect of burdening a right to engage in such conduct under some circum- stances. For example, a state might apply its law prohibiting drug use * Associate Professor, Columbia University School of Law. I am grateful for the comments and suggestions of Ashutosh Bhagwat, Vincent Blasi, Sherry Colb, Kent Greenawalt, Julie Hilden, John Manning, Molly McUsic, Henry Monaghan, Gerald Neuman, Allan Stein, and Laurence Tribe. I also benefited from my participation in the Internet discussion group Religionlaw and wish to thank the other participants, especially Eugene Volokh, organizer of the list. I received able research assistance from Lorenzo Bivans and Stacy Fols. 1 When I speak of rights in this Article, I generally mean rights to engage in primary con- duct, such as speech, assembly, religion, abortion, and so forth. I have elsewhere contrasted rights to engage in primary conduct with procedural rights, which can only be exercised in institutional fora created by the government. See Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 265-66 (x994) (characterizing the Fifth Amendment right against compelled self-incrimination and the right to vote in most government-run elections as procedural rights). However, there exist rights that do not neatly fit into either category, such as the right to own and possess private property and the right to equal protection of the laws. I briefly discuss the proper treatment of rights such as these in section MlI.D. 2 See Texas v. Johnson, 491 U.S. 397, 399 (x989) (invalidating a conviction for violation of Texas's flag desecration statute). 3 See Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (invalidating a Connecticut law prohibiting the use of contraceptives by married couples). 1996] INCIDENTAL BURDENS 1177 to Native Americans who ingest peyote as part of a religious ceremony.4 Let us call these two types of burdens direct and incidental, re- spectively.5 From the perspective of a rightholder, the severity of a law's impact has no necessary connection to whether the law directly or incidentally burdens the right's exercise. Direct burdens can be trivial - for example, a one-penny tax on newspapers that publish editorials critical of the government - whereas conversely, incidental burdens can be extremely harsh - for example, applying a prohibition 6 against wearing headgear in the military to an Orthodox Jew. Nevertheless, Supreme Court precedent sharply distinguishes be- tween direct and incidental burdens.7 A law imposing a direct burden will be permitted to override8 a fundamental right only if the law is 4 See Employment Div. v. Smith, 494 U.S. 872, 89o (iggo) (finding no infringement of the First Amendment's free exercise right when the state denied unemployment benefits to Native American workers who were dismissed from their jobs because of their sacramental use of peyote, on the ground that the state's generally applicable criminal narcotics law prohibited the use of peyote). S These two categories are closely related to the two "tracks" of free speech analysis identi- fied by Laurence Tribe, see LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-2, at 789-94 (2d ed. 1988), although the direct/incidental distinction applies to rights generally, not only to First Amendment rights. 6 See Goldman v. Weinberger, 475 U.S. So3, 5og-io (I986) (upholding the application, of military dress regulations to prohibit an Orthodox Jew from wearing his yarmulke indoors). 7 See infra Part II. Distinguishing between direct and incidental burdens can require careful parsing of the acts permitted and torbidden. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217, 2228-29 (1993) (examining coverage of and exceptions to a collection of local ordinances proscribing ritual animal sacrifice and finding that, in the aggregate, the ordinances impermissibly targeted the free exercise of religion by adherents of the Santeria faith). 8 Rights theorists use a convention under which a right is infringed when the government fails to perform its correlative duty, a right is violated