Because the Mandate substantially burdens Plaintiffs’ religious exercise, the government must justify the Mandate under strict scrutiny, the “most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997); see also 42 U.S.C. § 2000bb-1(b). It cannot do so here.

See 42 U.S.C. § 2000bb(b)(1). A determination of Padilla’s RFRA claims in this setting would require the Court to balance the Executive Branch’s authority to conduct war, protect national security, and formulate foreign policy, with the interests set forth in RFRA – the burden imposed upon a particular exercise of religion, the compelling governmental interest that justifies the burden, and the restrictiveness of the means used to further that interest, see 42 U.S.C. § 2000bb-1(b)(1)-(2). The most recent and closely analogous cases in which courts have attempted to define the balance between the constitutional rights of an American citizen designated as an enemy combatant and the authority of the Executive Branch in the conduct of war, national security, and foreign policy, make clear that any constitutional claims related to Padilla’s designation, detention, and interrogation as an enemy combatant were not clearly established at the time of the Defendant Yoo’s actions.

See 42 U.S.C. § 2000bb(b)(1). A determination of Padilla’s RFRA claims in this setting would require the Court to balance the Executive Branch’s authority to conduct war, protect national security, and formulate foreign policy, with the interests set forth in RFRA – the burden imposed upon a particular exercise of religion, the compelling governmental interest that justifies the burden, and the restrictiveness of the means used to further that interest, see 42 U.S.C. § 2000bb-1(b)(1)-(2). The most recent and closely analogous cases in which courts have attempted to define the balance between the constitutional rights of an American citizen designated to be an enemy combatant and the authority of the Executive Branch in the conduct of war, national security, and foreign policy, make clear that any constitutional claims related to Padilla’s designation, detention, and interrogation as an enemy combatant were not clearly established at the time of the Defendants’ actions.

It provides that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). RFRA claims proceed in two steps.

C. RFRA Standard The Religious Freedom Restoration Act (“RFRA”) prohibits the government from substantially burdening the exercise of religion unless the government demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb–1(a), (b). The standard for analyzing a RFRA claim is a two-step process: First, the plaintiff must make out a prima facie case by establishing Article III standing and showing that the law in question would (1) substantially burden (2) a sincere (3) religious exercise.

At this pleading stage, the Third-Party Defendants have not demonstrated a compelling governmental interest in forcing Davis to violate her religious freedom. This inquiry “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religions is being substantially burdened,” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (emphasis added) (quoting 42 U.S.C. § 2000bb-1(b)), and further requires courts “to ‘loo[k] beyond broadly formulated interests’ and to ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’—in other words, to look to the marginal interest in enforcing” the SSM Mandate in this case. See Hobby Lobby, 134 S.Ct. at 2779 (emphasis added) (quoting O Centro, 546 U.S. at 431).

Under RFRA, the government must also show that the regulation “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). “The least- restrictive-means standard is exceptionally demanding.”

Under RFRA, a “rule of general applicability” that “substantially burden[s] a person’s exercise of religion” may be upheld only if it is the least restrictive means of advancing a compelling government interest. See 42 U.S.C. § 2000bb-1. A plaintiff must meet two elements to establish a prima facie claim under RFRA: “First, the activities the plaintiff claims are burdened by the government action must be an ‘exercise of religion.’

RFRA protects religious individuals not just from discrimination, and not just from non-neutral laws, but also from “substantial burdens” on religious exercise. 42 U.S.C. 2000bb-1. RFRA protects individuals from those burdens “even if the burden results from a rule of general applicability.”

But it Case 7:16-cv-00108-O Document 57 Filed 12/02/16 Page 24 of 35 PageID 1692 17 is also true for a RFRA-specific reason—namely, as a statutory matter, the govern- ment bears the burden of making its own case, something it has entirely failed to do here. 42 U.S.C. § 2000bb-1(b) (“Government may substantially burden a person’s ex- ercise of religion only if it demonstrates” that strict scrutiny is satisfied) (emphasis added); see also Hobby Lobby, 134 S. Ct. at 2776 (refusing to consider RFRA argu- ments raised by amici because HHS “has never made this argument” and “we do not even know what the Government’s position might be”). Nevertheless, a brief review of amici’s RFRA arguments demonstrates why they weren’t worth a try.