Incidental Burdens on First Amendment Freedoms

Abstract

The Supreme Court is currently reconsidering 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 exemptions under the Free Exercise Clause. 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 exemptions under the Free Exercise Clause. This Essay argues that, together with O’Brien, these lines of cases support a regime in which incidental burdens on religious exercise trigger intermediate scrutiny, unless they take the form of (1) government allocations of doctrinal authority or spiritual responsibilities in religious institutions (the “ministerial exception”) or (2) pressures on a person to violate her religious conscience (the “conscience exception”), in which case they trigger strict scrutiny.