06-Kazhdan (Do Not Delete) 7/29/2012 12:19:40 AM How Jewish Laws of Resistance Can Aid Religious Freedom Laws Daniel Kazhdan* This Comment synthesizes current United States religious freedom jurisprudence and argues that it is inadequate for protecting religious practice. As currently applied, the First Amendment, the Religious Freedom and Restoration Act, and the Religious Land Use and Institutionalized Persons Act do not sufficiently consider the perspective of the burdened religion. Religious freedom laws exist to navigate between the needs of society and the needs of religious participants. An evaluation of any prospective law should therefore consider both sides’ needs. This Comment presents a framework for considering the severity of the burden that a law places on a religion and argues that the severity of the burden should be a factor in determining whether a secular law should be upheld. Introduction................................................................................................... 1070 I. U.S. Religious Freedom Laws................................................................... 1071 A. First Amendment .......................................................................... 1071 1. Smith and Lukumi .................................................................. 1072 2. The Broad Reading of “General Applicability” .................... 1074 3. The Narrow Reading of “General Applicability”.................. 1075 4. What Is a Burden? ................................................................. 1076 B. Religious Freedom Restoration Act (RFRA) and Religious Land Use and Institutionalized Persons Act (RLUIPA) ..................... 1078 II. Problems with Current Religious Freedom Jurisprudence....................... 1080 A. Problems with Free Exercise Jurisprudence ................................. 1080 Copyright © 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * J.D., University of California, Berkeley, School of Law, 2012. I would like to thank Stephen Sugarman, Molly Shaffer van Houweling, Bea Gurwitz, Robert Yeh, Lauren Maisel, David Kazhdan, Cory Isaacson, Noah Greenfield, Kenneth Bamberger, and Ezi Soloveichik for their invaluable assistance. Additionally, I wish to thank Nicholas Fram, Anne Kim, Sean McCormick, and the California Law Review editors who went above and beyond in helping me improve this piece. Finally, I would like to thank the Berkeley Institute for Jewish Law for funding for research assistance. 1069 06-Kazhdan (Do Not Delete) 7/29/2012 12:19:40 AM 1070 CALIFORNIA LAW REVIEW [Vol. 100:1069 B. Problems with RFRA and RLUIPA Jurisprudence....................... 1083 III. Alternative Free Exercise Interpretations ............................................... 1085 A. The Potential for Religious Freedom Doctrines to Evolve........... 1085 B. Balancing Test .............................................................................. 1086 1. Considerations for Resistance Within Jewish Law ............... 1088 2. How Jewish Laws of Resistance Can Inform U.S. Law........ 1089 3. Analogous Considerations Within U.S. Law ........................ 1092 C. Ancillary Benefits of the New Framework................................... 1095 Conclusion .................................................................................................... 1099 INTRODUCTION Just over twenty years ago, in Employment Division, Department of Human Resources v. Smith, the Supreme Court held that, in evaluating whether a challenged law violates the First Amendment, the burden on the religion need not be considered.1 Instead, if a state law was neutral and generally applicable, then the law was per se immune to a Free Exercise challenge.2 Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), which restored the pre-Smith test when evaluating federal (but not most state) actions. 3 Under these statutes, the federal government (and, on occasion, state governments) cannot impose a “substantial burden” on a person’s exercise of religion, even if the burden results from a rule of “general applicability,” unless the law furthers a compelling governmental interest and is the least restrictive means of furthering that interest.4 Part I of this Comment summarizes the way various courts have understood the First Amendment, RFRA, and RLUIPA. It notes that federal courts disagree on whether neutral laws that are not generally applicable violate the First Amendment. It also describes a circuit split on whether laws must substantially burden religion before there is a violation of the First Amendment. In terms of RFRA and RLUIPA, this Comment notes that courts diverge on the meaning of “substantial burden.” Some courts look to whether the practice is mandated by religion, while others do not. Part II contends that the current judicial understanding of the First Amendment, RFRA, and RLUIPA is inadequate. The Free Exercise doctrine imprudently ignores the degree of burden to religion. RFRA and RLUIPA’s binary focus on whether there is a “substantial burden” is too coarse. 1. 494 U.S. 872, 882 (1990). 2. See id. at 879. 3. See 42 U.S.C. §§ 2000bb to bb-4 (2006); id. §§ 2000cc to cc–5. 4. Id. § 2000bb-1(a)–(b) (using the phrase “[g]overnment shall not substantially burden”); § 2000cc-1(a)(1)–(2) (stating that government shall not impose a “substantial burden”). 06-Kazhdan (Do Not Delete) 7/29/2012 12:19:40 AM 2012] JEWISH LAWS OF RESISTANCE AND RELIGIOUS FREEDOM 1071 Part III argues that considering the degree to which secular law burdens a religious practice requires a finer approach. A nuanced understanding of the degree of religious burden should be balanced against the government’s interest. To help establish such a framework, this Comment looks to Jewish laws of resistance to secular laws to evaluate the degree of burden from a Jewish perspective. Jewish jurisprudence lays out a combination of factors that determine whether Jews should acquiesce to a burdening law or whether they must resist—even to the point of martyrdom. These factors include whether the religious practice is central, whether the practice requires an act (versus an omission), and whether the practiced act is performed publicly. These factors can be applied by secular governments in considering how much a potential law burdens a religion. By understanding the burden that a law places on religion, the government will be in a better position to balance this burden against the state’s interest in the potential law. I. U.S. RELIGIOUS FREEDOM LAWS This Part will explain the three main sources of U.S. religious freedom laws: the First Amendment’s Free Exercise Clause,5 the Religious Freedom Restoration Act (RFRA),6 and the Religious Land Use and Institutionalized Persons Act (RLUIPA).7 A. First Amendment The First Amendment forbids Congress from making laws that prohibit the “free exercise” of religion,8 but the Supreme Court’s definition of what constitutes an impermissible prohibition has not been static. Until 1990, the doctrine the Supreme Court applied when determining whether congressional action violated the Free Exercise Clause was a test set out in Sherbert v. Verner.9 Sherbert held that a burden on religious freedom was impermissible unless there existed a “compelling state interest” for imposing it.10 This test was rephrased in Wisconsin v. Yoder, where the Court held that the government’s interest had to be balanced against the burden on religious freedom.11 Beginning in the 1980s, the Supreme Court retreated from its broad review of laws that burdened religion. By 1989, the Court recast Sherbert and Yoder as limited to cases where laws “substantially burdened” religion—even 5. U.S. CONST. amend. I. 6. 42 U.S.C. §§ 2000bb to bb-4. 7. Id. §§ 2000cc to cc-5. 8. U.S. CONST. amend. I. 9. 374 U.S. 398 (1963). 10. Id. at 403. 11. 406 U.S. 205, 214 (1972). 06-Kazhdan (Do Not Delete) 7/29/2012 12:19:40 AM 1072 CALIFORNIA LAW REVIEW [Vol. 100:1069 though Sherbert and Yoder never stated such a requirement.12 This retreat from review of laws that burdened religion foreshadowed the Court’s decision in Smith,13 where the Court almost completely abandoned review of Free Exercise challenges. 1. Smith and Lukumi In 1990, the Court decided Smith, holding that any law that was neutral and generally applicable was per se permissible—even without a compelling government interest.14 While the majority used the expressions “neutral” and “general applicability” at least a half dozen times each in Smith, the Court did little to explain what these expressions meant. In a subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court elaborated on the meaning of “neutral law of general applicability.”15 The Church of the Lukumi Babalu Aye was a congregation of the Santeria religion whose members wished to practice animal sacrifice in Hialeah, Florida.16 The city passed ordinances forbidding killing animals if the primary purpose was not for food, and members of the church challenged the law as violating the First Amendment.17 The Supreme Court held that while the ordinances were facially neutral, their object was to target religion, and they were, therefore, not neutral.18 The Court stated that the ordinances created a “religious gerrymander” whereby only Santeria conduct was forbidden.19 In addition