Necessity in Free Exercise
The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. This Comment offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. This Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to laws in Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, this Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and showcase the possibilities of a data-driven method to address necessity in free exercise.