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What Is a Compelling Governmental Interest?

Robert T. Miller

Abstract


The Supreme Court has never attempted to state in general terms what makes a governmental interest (that is, an end) compelling. Progress can be made by asking for which ends the government has a significant cost advantage relative to other institutions. This is a necessary (but not sufficient) condition of that ends being a compelling governmental interest. I consider the relationship between this account and the as-applied standard that developed prior to RFRA and RLUIPA and that was embodied in those statutes. Applying the necessary condition advocated here would affect the outcome of some important religious freedom cases. Finally, I discuss whether the condition here identified as necessary is also sufficient and conclude that it is not.

Robert T. Miller, "What Is a Compelling Government Interest?" Journal of Markets & Morality 21, no. 1 (Spring 2018): 71-93


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