Combs v. Homer-Center School District

SCIRICA, Chief Judge,

concurring.

Section 1367(c) provides: “The district courts may decline to exercise supplemental jurisdiction over a claim ... if (1) the claim raises a novel or complex issue of State law ... [or] (3) the district court has dismissed all claims over which it has original jurisdiction.... ” 28 U.S.C. § 1367(c). The District Court here exercised supplemental jurisdiction over Parents’ state law Religious Freedom Protection Act claim. The claim was fully presented to and adjudicated by the District Court. I would decide the issue.

As noted, in order to obtain relief under RFPA, Parents must prove by clear and convincing evidence that their free exercise of religion has been substantially burdened or likely will be substantially burdened. Id. § 2404, 2405(f). If Parents satisfy this burden, the school districts are required to prove, by a preponderance of the evidence, that Act 169 furthers a compelling interest and is the least restrictive means of furthering the interest. 71 Pa. Stat. Ann. § 2404(a)-(b). Thus, as a threshold matter, Parents must prove, by clear and convincing evidence, that their free exercise of religion has or will likely be “substantially burdened.”

Parents have made conflicting claims as to what conduct or review by the school districts constitutes a substantial burden. In their complaint, Parents challenge all state review of their home education programs.34 But deposition testimony reveals *255some variance by Parents on the permissible level of state oversight.35 Nevertheless, in their District Court briefs, Parents again contended that “placing of authority in any state agency violates their sincerely held religious beliefs” and that “it is a specific tenet of their religious faith that the State lacks the jurisdiction over education and the family that Act 169 asserts.” Parents Br. Opp’n to Def.’s Mot. Summ. J. at 9-10, Apr. 14, 2006.36 At oral argument, however, Parents’ counsel again shifted the focus of their claims and appeared to concede that the objectionable portion of Act 169 was not the record keeping, testing, or third party evaluation, but the school districts’ independent, “discretionary” review of their children’s educational progress. But assuming a proper concession, this possible alteration of the claim was not made before the District Court.

I.

As noted, the construction and application of RFPA’s fourth definition of “substantially burden” is an issue of first impression. Because this is a matter of Pennsylvania law, “we must predict how the Pennsylvania Supreme Court, if faced with the identical issue, would construe the statute.” Prudential Prop. & Cas. Ins. Co. v. Pendleton, 858 F.2d 930, 934 (3d Cir.1988).37

*256In construing the meaning of “substantially burden,” the District Court relied on the plain language of the statute, the analysis of “substantially burden” in the “context of Free Exercise Clause and similar freedom of religion restoration acts,” and the intent of the General Assembly to restore the “traditional (pre-Smith) free exercise of religion standards.” Combs, 468 F.Supp.2d at 771. As noted, Parents contend the District Court either ignored or misapplied the plain language of the statute and improperly included legislative history and pr e-Smith decisions in its analysis.

II.

Parents rely exclusively upon the RFPA’s fourth definition of “substantially burden” — “an agency action which ... [c]ompels conduct or expression which violates a specific tenet of a person’s religious faith.” 71 Pa. Stat. Ann. § 2403. Parents contend they are compelled, under threat of truancy charges, to submit the portfolio of their children’s work product to the school districts for discretionary review. Parents describe the act of turning over the portfolio for discretionary review as “conduct or expression.” They point to the exercise of editorial judgment and creativity on the part of the home education supervisor as evidence of this expression.38 Moreover, Parents assert a “specific tenet” based upon certain religious beliefs.

First, Parents maintain their faith teaches that “education of their children, not merely the ‘religious education,’ is ‘religion.’ ” Parents Br. at 64. Parents cite, inter alia, Deuteronomy 6:5-7(NIV) (“Love the Lord your God with all your heart and with all your soul and with all your strength. These commandments that 1 give you today are to be upon your hearts. Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up.”), Psalms 145:4(NIV) (“One generation will commend your works to another; they will tell of your mighty acts.”), Ephesians 6:4(NIV) (“Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord.”), and Proverbs 22:6 (“Train up a child in the way he should go and when he is old, he will not depart from it.”), for the proposition that God has directly called upon them to home educate their children.

Second, Parents contend God has assigned religious matters to the exclusive jurisdiction of the family, citing, inter alia, Luke 20:25 (“Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.”), Psalms 127:3(NIV) (“Sons are a heritage from the Lord, children a reward from him.”), Matthew 7:6 (“Don’t give what is holy to unholy people.”), 1 Corinthians 10:31 (“Whatever you do, do it all for the glory of God.”), 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), 1 Thessalonians 2:4 (“We are not trying to please men but God, who tests our hearts.”), and Acts 5:29 (“We must obey God rather than men.”). Parents contend Act 169 replaces the headship of Christ over the family, and their headship over their children, with the headship of the state over the family, citing, inter alia, 1 Corinthians 11:3(NIV) (“Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.”), Ephesians 5:23(NIV) (“For the husband is the head of the wife as Christ is *257the head of the church, his body, of which he is the Savior.”), and Ephesians 6:1(NIV) (“Children, obey your parents in the Lord, for this is right.”).39 As a result of this “specific tenet,” Parents assert a sincerely held religious belief that the school districts have no authority to compel reporting or to engage in discretionary review of their home education program.

The term “specific tenet” is not defined in the Religious Freedom Protection Act or 1 Pa. Cons.Stat. § 1991.40 The Oxford English Dictionary defines “specific” as “precise or exact in respect of fulfilment, conditions, or terms; definite, explicit” and “exactly named or indicated, or capable of being so; precise, particular.” 2 Oxford English Dictionary 2949 (Compact ed.1971); see also Merriam-Webster’s Dictionary 1132 (9th ed.1990) (defining “specific” as “sharing or being those properties of something that allow it to be referred to a particular category” or as “free from ambiguity”). “Tenet” is defined as “[a] doctrine, dogma, principle, or opinion, in religion, philosophy, politics or the like, held by a school, sect, party, or person.” 2 Oxford English Dictionary 3260 (Compact ed.1971); see also Merriam-Webster’s Dictionary 1215 (9th ed.1990) (defining “tenet” as “a principle, belief, or doctrine generally held to be true; especially: one held in common by members of an organization, group, movement, or profession”).

In the religious context, the term “specific tenet” is difficult to define.41 Even though a religious concept may be stated generally, it may, in the believer’s mind, be a specific religious tenet. At one end of the spectrum, specificity may be relatively straightforward and easy to identify because the “specific tenet” is observed as an outward manifestation of a particular religious belief. For example, in Fraternal Order of Police Newark Lodge No. 12 v. Newark, 170 F.3d 359 (3d Cir.1999), two Sunni Muslim officers successfully challenged an internal order requiring all police officers to shave their beards. Plain*258tiffs articulated a religious commandment to grow and wear a beard. Id. at 360-61; see also Deveaux v. Philadelphia, No. 3103 Feb. Term 2005, 2005 WL 1869666, at *1-2 (Pa.Com.Pl. July 14, 2005) (granting a preliminary injunction preventing the city from suspending a practicing Muslim firefighter without pay for refusing to shave his beard). In Sherbert v. Venter, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), a member of the Seventh-day Adventist Church challenged state unemployment compensation rules that conditioned the availability of benefits upon her willingness to work under conditions forbidden by her religion. The Court acknowledged that “the prohibition against Saturday labor is a basic tenet of the Seventh-day Adventist creed, based upon that religion’s interpretation of the Holy Bible.” Id. at 399 n. 1, 83 S.Ct. 1790.

Furthermore, religious dietary laws would appear to qualify as specific tenets. In Williams v. Bitner, 455 F.3d 186 (3d Cir.2006), a Muslim inmate assigned to kitchen duty was disciplined for refusing to aid others in the consumption of pork. Citing the Koran (“He has forbidden you ... the flesh of swine”) and Chapter Eleven of Leviticus in the Old Testament, Williams averred that handling and serving pork would violate his religious faith. Id. at 187. Our court held that “prison officials must respect and accommodate, when practicable, a Muslim inmate’s religious beliefs regarding prohibitions on the handling of pork” and affirmed the denial of qualified immunity. Id. at 194. See also DeHart v. Horn, 390 F.3d 262, 272-75 (3d Cir.2004) (discussing a Buddhist prisoner’s Religious Land Use and Institutionalized Persons Act claim based upon his request for a special diet).

At the other end of the spectrum are claims similar to Parents’. These claims cite more general and less obviously manifested concepts. This is not to undervalue these tenets which, as revelations, may be fundamental to one’s religious beliefs. In these situations, however, it may be difficult to determine whether a litigant’s citations to scripture or to general religious concepts articulate a “specific tenet.” Also problematic in this analysis are religious tenets that may be viewed as both general and specific. See, e.g., Exodus 20:7 (“Thou shalt not take the name of the LORD thy God in vain, for the LORD will not hold him guiltless that taketh his name in vain.”); Exodus 20:12 (“Honor thy father and thy mother that thy days may be long upon the land which the LORD thy God giveth thee.”).

Furthermore, the RFPA definition of “substantially burden” appears to create some tension between state and federal law. The United States Supreme Court has cautioned against making religious interpretations in the First Amendment context. See, e.g., Smith, 494 U.S. at 887, 110 S.Ct. 1595 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.”); id. at 886-87, 110 S.Ct. 1595 (“It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”); Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 715, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“Courts should not undertake to dissect religious beliefs ... because [the believer’s] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.”); id. at 716, 101 S.Ct. 1425 (“Courts are not arbiters of scriptural interpretation.”). Additionally, the Religious *259Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, “does not permit a court to determine whether the belief or practice in question is ‘compelled by, or central to, a system of religious belief.’ ” Washington v. Klem, 497 F.3d 272, 277 (3d Cir.2007) (quoting 42 U.S.C. § 2000cc-5(7)(A)).

Nevertheless, the Pennsylvania General Assembly’s statutory definition of “substantially burden” appears to require courts to inquire into, inter alia, whether an activity is fundamental to a person’s religion or whether a person is compelled to violate a specific tenet of their religious faith. See 71 Pa. Stat. Ann. § 2403 (defining substantially burden as “an agency action which ... [djenies a person a reasonable opportunity to engage in activities which are fundamental to the person’s religion [or ejompels conduct or expression which violates a specific tenet of a person’s religious faith.”).42 Arguably, a violation of a general tenet might substantially burden one’s religious faith. But that was not what the Pennsylvania General Assembly proscribed. The statutory language shifts the burden of establishing a compelling interest and least restrictive means to the state actor only after the violation of a specific tenet, which must mean something different from a general tenet. As noted, the dilemma is especially striking because, in the view of the believer, the violation of a general tenet may very well substantially burden one’s religious faith.

Nevertheless, given the normal usage of the term, it is difficult to see that Parents have cited a specific tenet that would prohibit reporting requirements and discretionary school district review of their children’s educational progress. Instead, they reference general, but nonetheless important, religious tenets, see, e.g., Luke 20:25 (“Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.”); 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), to assert that local school districts have no authority to conduct a limited review of their children’s educational progress. In addition, under RFPA’s fourth definition of “substantially burden,” a party must establish a nexus between the specific tenet and the compelled violation, a nexus that Parents have not established here.

Furthermore, the inconsistencies in Parents’ complaints, depositions, briefs and appellate oral argument suggest the difficulty in identifying a specific tenet (as opposed to a general tenet) and its attendant consequences. In their complaints, briefs to the district court, and some deposition testimony, Parents asserted a “specific tenet” that the state “lacks the jurisdiction” over their children’s education, i.e., that no level of state review would be permissible.43 See Parents Br. Opp’n to Def.’s Mot. Summ. J. at 9-10, Apr. 14, 2006. But at oral argument, Parents implied that their asserted “tenet” might allow non-discretionary review of their home education programs. See also Parents Re*260ply Br. at 8 (“Parents do not contend that the government may not establish any standards to govern home education. Rather, the Parents’ core objection ... is that their religious beliefs forbid them from submitting their religious education of their children to the discretionary review of a governmental official.”). Yet it is problematic whether this interpretation of “non-discretionary” review would amount to any review at all.

Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot sustain their cause of action under the Pennsylvania RFPA.

III.

Even finding the term “specific tenet” in the RFPA to be ambiguous, the decision would be the same. As noted, the purpose of statutory interpretation “is to ascertain and effectuate the intention of the General Assembly.” 1 Pa. Cons.Stat. § 1921(a). Under section 1921(c), when a statute’s words are ambiguous, the intention of the General Assembly “may be ascertained” by considering an array of factors.44

The historical background and legislative history of Pennsylvania’s RFPA places it in context and assists in interpreting the statute. Much of this depends on the development of federal First Amendment jurisprudence and its influence on Pennsylvania law. Prior to 1990, legislation and government regulation burdening the free exercise of religion was subject to the Sherbert test. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Under this rule, if the government substantially burdened a person’s constitutional free exercise rights, then it was required to justify the burden with a compelling state interest and with proof that the least restrictive means was employed. Id. at 402-04, 83 S.Ct. 1790. See also Jimmy Swaggart Ministries v. Bd. of Equalization of California., 493 U.S. 378, 384-85, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990) (“Our cases have established that ‘the free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.’ ” (quoting Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989))).

In 1990, the Supreme Court held that the Free Exercise Clause did not prohibit enforcement of a neutral law of general applicability supported by a rational basis. Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 890, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The Court concluded that the state could deny unemployment benefits due to work-related misconduct based upon an employee’s religiously motivated ingestion and use of a drug; specifically, in that ease, the ceremonial use of peyote. Id. Declining to apply the Sherbert balancing test, the Court noted that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or pro*261scribes).’” Id. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)). Thus, Smith and its progeny “establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citing Smith).

The Smith Court noted that religious exemptions, while not constitutionally required, could be created through the political process. Smith, 494 U.S. at 890, 110 S.Ct. 1595 (citing several state statutes making “an exception to their drug laws for sacramental peyote use”). In 1993, Congress accepted the Court’s invitation by enacting the Religious Freedom Restoration Act (“RFRA”), 107 Stat. 1488, 42 U.S.C. §§ 2000bb to 2000bb-4 (amended 2000). Congress sought to restore the compelling interest test articulated in Sherbert and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), “and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb. Applicable to “all Federal and State law,” Pub.L. No. 103-141, § 6, 107 Stat. 1488, 1489 (1993), RFRA prohibited both the federal and state governments45 from “substantially burden[ing] a person’s exercise of religion” except through the least restrictive means of furthering a compelling interest. 42 U.S.C. § 2000bb-1. In 1997, the Supreme Court struck down RFRA as applied to the states46 because RFRA exceeded the scope of Congress’ enforcement power under section 5 of the Fourteenth Amendment. Boerne v. P.F. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). RFRA lacked a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 520, 529-36, 117 S.Ct. 2157.

In part a reaction to City of Boerne, Congress enacted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5, which addresses only land use regulations and the religious rights of institutionalized persons. Id. §§ 2000cc, 2000cc-1. RLUIPA prohibits both state and federal governments from imposing a “substantial burden” on the religious exercise of an institutionalized person unless it is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc-1. Also, several states in addition to Pennsylvania passed their own religious freedom restoration or protection legislation.47

Although there are differences among the various federal and state religious pro*262tection statutes, most contain, at their core, the same fundamental structure and purpose. They recognize that neutral laws of general applicability may burden religious exercise as significantly as laws intended to interfere with religious exercise. The federal statutes, Pennsylvania’s RFPA, and a majority of the state statutes also acknowledge the government need not justify every action having some effect on religious exercise. Under those statutes, only substantial burdens trigger heightened scrutiny.48 RFPA’s four definitions of “substantially burden” emphasize the importance of this threshold. See 71 Pa. Stat. Ann. § 2403 (“significantly constrains or inhibits”; “significantly curtails”; “denies ... a reasonable opportunity to engage in activities ... fundamental to the person’s religion”; “violates a specific tenet of a person’s religious faith.”) (emphasis added).

In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual’s activity. Recognizing this, legislatures have sought a balance between protecting free exercise of religion and preserving an effective police power. The federal government, Pennsylvania, and several other states have identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.49 Furthermore, by requiring proof of a “substantial burden” by clear and convincing evidence, Pennsylvania appears to have set a higher threshold than other religious restoration statutes. Compare 71 Pa. Stat. Ann. §§ 2404, 2405 (requiring “clear and convincing evidence” of substantial burden), with 42 U.S.C. § 2000ec-2(b) (“plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice ... substantially burdens the plaintiffs exercise of religion”), Warner, 887 So.2d at 1034 (“[T]he plaintiff bears the initial bur*263den of showing that a regulation constitutes a substantial burden.... ”), Diggs v. Snyder, 333 Ill.App.3d 189, 266 Ill.Dec. 478, 775 N.E.2d 40, 45 (2002) (requiring, under the Illinois Religious Freedom Restoration Act, plaintiff “to make a threshold showing” of substantial burden).

As noted, Parents have not cited a specific tenet that would prevent adherence to the reporting requirements or prohibit discretionary School District review of their children’s educational progress. Instead, they reference general, but important, religious tenets to support their claim that local school districts have no authority to conduct limited review of their home education programs. Such a broad interpretation of the term “specific tenet” would appear to read “specific” out of the statute.

The occasion, necessity, and purpose of the RFPA do not support a finding, by clear and convincing evidence, that Parents are compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot prevail on their cause of action under the Pennsylvania RFPA.

. See, e.g., Combs Compl. ¶ 12 ("Mr. and Mrs. Combs' religious beliefs acknowledge that the civil government may require them to educate their children, but, according to their religious belief, the civil government lacks jurisdiction to approve or administratively supervise the education they provide.”); Combs Compl. ¶ 14 ("It is a specific tenet of Mr. and Mrs. Combs' religious faith, rooted in their understanding of the Bible, that it would be sinful for them to engage in conduct or expression that would grant control over their *255children's education to the civil government.”); Hankin Compl. ¶ 20 ("It is a specific tent of Mr. and Mrs. Hankin's religious faith, rooted in their understanding of the Bible, that it would be sinful for them to have any association with the public school system.”).

. See, e.g., Maryalice Newborn Dep. at 49, Aug. 30, 2005 ("Q: What level of state review would be acceptable to you? A: None.”); Thomas Hankin Dep. at 55, Sept. 6, 2005, ("I personally believe that if the discretion of the school district were removed, there would be a lot less trouble religiously with my beliefs; that is, if I submitted to the school district a statement that said ... I am educating my children and this is what I’m teaching them this year.”).

. See also Parents Br. Opp'n to Def.’s Mot. Summ. J. at 10, Apr. 14, 2006 ("Because Plaintiffs believe that all education is inherently religious, Caesar has no jurisdiction over it at all.”); id. at 11 (citing Herbert W. Titus, founding dean of Regent University School of Law, for the proposition that "[bjoth the Establishment and the Free Exercise clauses preclude the civil government from exercising jurisdiction over the education of the people.”).

. The Commonwealth’s rules of statutoiy construction, codified at 1 Pa. Cons.Stat. §§ 1901-1978, “shall be observed, unless the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly.” Id. § 1901. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” Id. § 1921(a).

Words and phrases are construed "according to their common and approved usage,” whereas technical words which are defined will be construed according to their peculiar definitions. Id. § 1903. "When the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). The Pennsylvania Supreme Court "has repeatedly recognized that rules of construction, such as consideration of a statute’s perceived ‘object’ or ‘purpose,’ are to be resorted to only when there is an ambiguity.” Commonwealth v. Taylor, 576 Pa. 622, 841 A.2d 108, 112 (2004). However,

[wjhen the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute.

1 Pa. Cons.Stat. § 1921(c).

. I assume, without deciding, that Parents’ actions are "conduct or expression" within the meaning of the RFPA.

. The Previshes also cite the Catechism of the Roman Catholic Church. See, e.g., Catechism 2223 ("Parents have the first responsibility for the education of their children. They bear witness to this responsibility first by creating a home where tenderness, forgiveness, respect, fidelity, and disinterested service are the rule. The home is well suited for education in the virtues. This requires an apprenticeship in self-denial, sound judgment, and self-mastery — the preconditions of all true freedom. Parents should teach their children to subordinate the 'material and instinctual dimensions to interior and spiritual ones.' "); Catechism 2229 ("As those first responsible for the education of their children, parents have the right to choose a school for them which corresponds to their own convictions. This right is fundamental. As far as possible parents have the duty of choosing schools that will best help them in their task as Christian educators. Public authorities have the duty of guaranteeing this parental right and of ensuring concrete conditions for its exercise.").

. Section 1991 defines words and phrases for “any statute finally enacted on or after September 1, 1937.”

. The words "specific,” "specificity,” and “particularity” are familiar terms in Pennsylvania and federal procedural law, and in that context, denote a heightened pleading standard as opposed to a more general (notice) standard. See, e.g., Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 587 A.2d 1346, 1352 (1991) ("Both Rule 1019(b) of the Pennsylvania Rules of Civil Procedure and case law require that fraud be plead with specificity. The appellees’ complaint does not rise to the level of specificity that we require.” (citation omitted)); c.f. In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir.1999) (noting, in the Private Securities Litigation Reform Act ("PSLRA”) fraud context, that the PSLRA "echoes precisely Fed.R.Civ.P. 9(b) and therefore requires plaintiffs to plead 'the who, what, when, where, and how (citation omitted)).

. As noted, in Ridley Park the Pennsylvania Commonwealth Court examined the third definition of "substantially burden” — "denies a person a reasonable opportunity to engage in activities which are fundamental to the person’s religion” — and concluded that while daycare "aided in carrying out the Church’s religious mission, [it] is not a fundamental religious activity of a church.” Ridley Park, 920 A.2d at 960. "For example, ministering to the sick can flow from a religious mission, but it is not a fundamental religious activity of a church because a hospital may be built to satisfy that mission.” Id.

. Although it is not entirely clear, I understand Parents' argument to mean that the natural consequence of their asserted specific tenet is that the state has no jurisdiction over home-schooling.

. As noted, those factors include, but are not limited to: "(1) The occasion and necessity for the statute. (2) The circumstances under which it was enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statutes upon the same or similar subjects. (6) The consequences of a particular interpretation. (7) The contemporaneous legislative history. (8) Legislative and administrative interpretations of such statute.” 1 Pa. Cons. Stat. § 1921(c).

. At the time of enactment in 1993, "Government” was defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State.” Pub.L. No. 103-141, § 5, 107 Stat. 1488, 1489 (1993). As amended, “Government” is defined as "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity.” 42 U.S.C. § 2000bb-2(l). "Covered entity means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States.” Id. § 2000bb-2(2).

. RFRA continues to be enforced against the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (applying RFRA to regulations by the federal government under the Controlled Substances Act).

. See Ariz.Rev.Stat. Ann. §§ 41-1493; Conn. Gen.Stat. § 52-571b; Fla. Stat. § 761.01 to 761.05; Idaho Code Ann. §§ 73-401 to 73-404; 775 Ill. Comp. Stat. 35/1 to 35/99; Mo. Ann. Stat. §§ 1.302 & 1.307; N.M. Stat. §§ 28-22-1 to 28-22-5; Okla. Stat. tit. 51 §§ 251 to 258; R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4; S.C.Code Ann. §§ 1-32-10 to *2621-32-60; Tex. Civ. Prac. & Rem.Code Ann. §§ 110.001 to 110.012; Va.Code Ann. §§ 57-1 to 57-2.02; Utah Code Ann. §§ 63L-5-101 to 63L-5-403; see also Ala. Const. Art I, § 3.01. The Pennsylvania RFPA became effective December 9, 2002. Missouri, Utah and Virginia passed legislation after 2002.

. Alabama and Connecticut do not modify "burden.” Ala. Const. Art I, § 3.01 ("Government shall not burden a person's freedom of religion....”); Conn. Gen.Stat. § 52-571b ("The state ... shall not burden a person's exercise of religion....”). Missouri, New Mexico, and Rhode Island prohibit the government from "restricting] a person’s free exercise of religion.” Mo. Ann. Stat. § 1.302; N.M. Stat. §§ 28-22-3; R.I. Gen. Laws §§ 42-80.1-3.

. To illustrate, for the purposes of RLUIPA, we recognize that a "substantial burden” exists where:

1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.

Washington v. Klem, 497 F.3d 272, 280 (3d Cir.2007). Under the Florida Religious Freedom Restoration Act, "a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.” Warner v. Boca Raton, 887 So.2d 1023, 1033 (Fla.2004). "A plaintiff who claims that a governmental regulation constitutes a substantial burden must 'prove that a governmental regulatory mechanism burdens the adherent’s practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates.’ " Id. at 1035 (citations omitted).