Abstract
This Note proposes that the state action doctrine—where state statutory and common law, or the judicial finding of liability thereunder, is government burdening to the same extent that a criminal law or prosecution is government burdening—should extend to always allow religious exercise claims and defenses in disputes involving only private parties. Part I lays out the development of religious exercise jurisprudence under the federal and state systems and the current landscape of jurisdictions’ treatment of religious exercise claims and defenses in private disputes.
Part II proceeds in two sections: Section A presents representative cases from criminal law and relevant areas of constitutional law (equal protection, free speech, and the free exercise doctrines of church autonomy and the ministerial exception) in which the Supreme Court has applied the state action doctrine. It then presents examples of state and lower federal court cases that applied the state action doctrine to private statutory and common law tort disputes under the former free exercise regime. Section B argues that the state action doctrine should be applied in state courts to allow free exercise claims and defenses in private litigation and replies to objections. Predictability and consistency across all areas of the law compel the application of the state action doctrine to all private disputes, whether in federal or state court. Litigants are duly protected from frivolous and insincere free exercise claims under the current default free exercise regime, and, even in jurisdictions with higher protections for religious exercise, are protected by the state interest and substantial burden requirements. Accordingly, in litigation where a party’s religious exercise is truly burdened by another party’s private right of action, religious exercise claims and defenses should at least be permitted to be raised and argued.
Recommended Citation
Brent J. Nymeyer,
When Religious Exercise and Private Rights Collide,
100
Notre Dame L. Rev.
871
().
Available at:
https://scholarship.law.nd.edu/ndlr/vol100/iss2/7
