When Religious Exercise and Private Rights Collide

Brent J. Nymeyer*

This Note proposes that the state action doctrine—where state statutory and common law, or the judicial finding of liability thereunder, is government burdening to the same extent that a criminal law or prosecution is government burdening—should extend to always allow religious exercise claims and defenses in disputes involving only private parties.  Part I lays out the development of religious exercise jurisprudence under the federal and state systems and the current landscape of jurisdictions’ treatment of religious exercise claims and defenses in private disputes.

Part II proceeds in two sections: Section A presents representative cases from criminal law and relevant areas of constitutional law (equal protection, free speech, and the free exercise doctrines of church autonomy and the ministerial exception) in which the Supreme Court has applied the state action doctrine.  It then presents examples of state and lower federal court cases that applied the state action doctrine to private statutory and common law tort disputes under the former free exercise regime. Section B argues that the state action doctrine should be applied in state courts to allow free exercise claims and defenses in private litigation and replies to objections.  Predictability and consistency across all areas of the law compel the application of the state action doctrine to all private disputes, whether in federal or state court.  Litigants are duly protected from frivolous and insincere free exercise claims under the current default free exercise regime, and, even in jurisdictions with higher protections for religious exercise, are protected by the state interest and substantial burden requirements.  Accordingly, in litigation where a party’s religious exercise is truly burdened by another party’s private right of action, religious exercise claims and defenses should at least be permitted to be raised and argued.

Continue reading in the print edition . . .

*J.D. Candidate, Notre Dame Law School, 2025; B.S. in Law and Policy: Pre-Law, Liberty University, 2020.  Thank you to Professor Bruce Huber for his encouragement and advice on this project.  His Property class will always be my favorite law school class and was where I was first introduced to the state action doctrine.  Thank you as well to Professors Richard W. Garnett and Stephanie Barclay for helping me refine my topic and illuminating my understanding in this area of the law.  Further thanks to my family, friends, and fellow editors of the Notre Dame Law Review for their unwavering support.  All errors are my own.  All glory belongs to the Lord Jesus Christ, my Savior.