The Burden of Proof in Preliminary Injunctions, and Strict Scrutiny

Gonzales v. O Centro Espírita Beneficente União do Vegetal

The Religious Freedom Restoration Act (RFRA) prohibits the Government from “substantially burdening a person’s exercise of religion,” unless (1) the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of advancing that compelling governmental interest.” In considering a motion for a preliminary injunction, brought by an Indian tribe engaged in the importation of substances outlawed under Schedule 1 of the Controlled Substances Act (CSA), to be used for concededly genuine religious practice, the Court considers who bears the burden of proof in a motion for preliminary injunction, and whether the Government has demonstrated its compelling interest.

The Court holds that the Free Exercise clause, in cases such as this where it is attached to a ‘compelling interest’ test (strict scrutiny), (1) does require case-by-case assessment of the religious burdens imposed by facially constitutional laws, and (2) that even while it is well established that “the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits,” the burden placed on the Government to demonstrate ‘that application of the burden is in furtherance of a compelling interest,’ is not limited to a trial of the Government’s affirmative defense, but must be borne in a preliminary injunction. Citing Ashcroft v. ACLU, holding that “[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, [the movants] … must be deemed likely to prevail unless the Government has shown that [the movants] proposed less restrictive alternatives are less effective than [enforcing the Act],” the Court refuses to accept that this principle should be limited to “content-based restrictions on speech.” In this case, the arguments made by both sides are equally compelling, and therefore, by the previous rule, the Government must bear the burden.

In addressing the Government’s arguments regarding its compelling interest, the Court rejects the “slippery slope” argument that the CSA can allow for no exceptions whatsoever (see Cutter v. Wilkinson). While accepting that the Government may present evidence that such an exception would cause administrative harm, the Court does not accept that the Government’s argument that an exception would necessarily cause such a harm, or that the Government’s argument that its ability to fulfill its treaty obligations relating to the war on drugs would be hindered, meets the necessary burden. Finally, in opposition to the Government’s contention that the reasons for which Congress placed the substance in Schedule 1 are sufficient to meet such a burden, the Court argues that “Congress had a reason for enacting the RFRA, too,” and that Congress’ recognition that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” prompted the adoption of the “compelling interest test” to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”