Constitutional Law Commons^™

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

Scholarly Works

This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

Insubstantial Burdens, Chad Flanders

All Faculty Scholarship

In order to win a claim under the Religious Freedom Restoration Act (or “RFRA”), you have to show that your religious beliefs have been “substantially burdened” by a governmental law or practice. In her dissent to Hobby Lobby, Justice Ginsburg accused the majority of taking an approach to defining “substantial burden” that abdicated the judicial role in determining what a substantial burden was. In her dissent to the denial of cert in the Wheaton case, Sotomayor advanced the same line. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she …