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By Root 1718 0

v. United States. Assuring the claimant that Reynolds is still good law, the court rejected his claim that he should not be fired as a police officer for practicing polygamy, a practice that the court conceded was motivated by sincere religious convictions. Admitting that neither the Utah State Legislature nor the state defendants in the case had presented any empirical or sociological evidence that polygamy is harmful or that monogamy is superior, the court relied on the mere fact that the state prohibited it and that a number of civil laws in Utah assume a monogamous marriage. The court held that “beyond the declaration of policy and public interest implicit in the prohibition of polygamy under criminal sanction,” the State of Utah had “established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.” Needless to say, the court did not inquire whether forbidding an exemption to this particular claimant was crucial or even necessary to accomplishing the state's interest.78

Again the article mentions cases, but focuses just on what is necessary to support the article's claim, and then ties it directly to the claim. That's important: The cases aren't mentioned for their own sake, or with an eye towards having readers draw their own conclusions from the cases. Rather, the cases are the evidence that supports the article's assertions.

Here the main assertion is the article's broader claim about how courts behave. In many other articles, the assertion is something about the scope of a background legal principle that the article will go on to critique, defend, explain, or otherwise use. But both kinds of articles need to be explicit about how the cases support the article's assertion.

2. Unbearable Burdens

[¶ 28] Before a claimant could have her free exercise claim examined under a “compelling interest” test, she had to demonstrate that her religious beliefs or practices had been burdened. As several cases illustrate, this was no easy task. Courts often required claimants, as did Justice O'Connor in Lyng, to prove that the state law or policy threatened to coerce them into abandoning their beliefs. Laws or policies that made religion more expensive, or more inconvenient,83 under this approach, simply did not constitute burdens. Similarly, laws or policies that did not force the claimant to forego an “important” benefit in order to follow her religious dictates, were also not often considered burdens.

[¶ 29] In some cases, namely those involving Native American claims to particular religious sites, courts added an additional element to the burden inquiry: the claimants had to prove that the particular site was “central” or “indispensable” to their religious practices. Thus in Wilson v. Block, the court rejected an attempt by Navajo and Hopi tribes to halt the private development (into a ski resort) of government owned land. The court held that the tribes had failed to “demonstrate that the government land at issue is indispensable to some religious practice,” and thus it did not even inquire into whether the government had a compelling interest in allowing the land to be developed privately. The court reached this conclusion despite the testimony of the thenchairman of the Hopi tribe, who stated that the contemplated development would “destroy our present way of life and culture,” and that it would render “the basis of our existence as a society ... a mere fairy tale to our people.”

[¶ 30] Regardless of one's opinion about how cases such as Block should ultimately be decided, the court's manipulation of the burden concept to reach its desired result is unmistakable. It suggests, as do the cases discussed in the previous section, that the apparent protection afforded by the free exercise clause was often only apparent. Again, the Catch-22 is clear. When faced with a meritorious claim in which the government's interest was not very compelling, courts often