In Alsyrawan v. Department of Human Services, (PA Sup. Ct., Oct. 5, 2026), the Pennsylvania Supreme Court held that to show a 1st Amendment free exercise violation, litigants only need to show a "burden", rather than a "substantial burden", on their religious exercise. At issue in the case was the denial of a Muslim family's application for a waiver of a rule (the 40/60 Rule) that limited the number of hours each week that a state program would compensate relatives for acting as caregivers, here for a Down Syndrome adult male. According to the court:
Alsyrawan adheres to Islamic law, as established in the Quran, which forbids unrelated males and females from being alone together and prohibits unrelated males from offering personal care concerning nudity or uncovered private parts to other males.... As articulated by Mother, due to Alsyrawan’s religious obligations, only immediate relatives (such as sisters, brothers, father, mother, and grandparents) are permitted to administer private personal care to him.... Mother testified further that even if an unrelated male aide did not provide Alsyrawan with private personal care — thus, not breaching Alsyrawan’s religious obligations — her religious beliefs prohibit her from being alone with an unrelated male, even if this unrelated male is taking care of Alsyrawan.
The majority reviewed a number of recent U.S. Supreme Court free-exercise opinions and found that the Supreme Court has been referring only to a "burden" and not to a "substantial burden" in those opinions. The majority concluded:
... [A] litigant satisfies the threshold showing of a burden on their religious practice by demonstrating that they must choose between receiving a government benefit or abiding by their religious beliefs. In other words, they must make a “forced choice” – the state actor does not provide a benefit option where the litigant can have both.
RFPA [Pennsylvania’s Religious Freedom Protection Act ] and the Free Exercise Clause are different legal routes for litigants to allege violations of their right to freely exercise their religion. The Supreme Court’s recent decisions indicate that a violation of the Free Exercise Clause may occur only when an individual’s religious exercise is simply burdened, as opposed to substantially burdened as required prior to Smith. Therefore, analysis of constitutional claims under the U.S. Constitution and statutory claims under RFPA cannot be conflated. Evidence of a substantial burden is required for claims under RFPA, but only a burden is required for such claims under the Free Exercise Clause. The appropriate standard of review — strict scrutiny or rational basis — is determined by assessing whether the burden is imposed by government policy or conduct that is not neutral or generally applicable....
Justice Mundy filed a dissenting opinion, saying in part:
I would hold that because the 40/60 Rule is neutral and generally applicable, and survives rational basis scrutiny, Appellant lacks a valid First Amendment claim. I would also conclude the 40/60 Rule does not impose a substantial burden on Appellant’s religious exercise, meaning he also lacks a valid RFPA Claim. Therefore, I would affirm the order of the Commonwealth Court.
Justice Wecht filed an opinion concurring in the majority's analysis, but contending that the court should have vacated and remanded the lower court's decision, rather than reversing and remanding it so the lower court could more fully consider whether the 40/60 Rule was generally applicable.
