Page:Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.pdf/13

8 injunction. This argument is foreclosed by our recent decision in Ashcroft v. American Civil Liberties Union, 542 U. S. 656 (2004). In Ashcroft, we affirmed the grant of a preliminary injunction in a case where the Government had failed to show a likelihood of success under the compelling interest test. We reasoned that "[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act's] constitutionality, respondents [the movants] must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than [enforcing the Act]." Id., at 666. That logic extends to this case; here the Government failed on the first prong of the compelling interest test, and did not reach the least restrictive means prong, but that can make no difference. The point remains that the burdens at the preliminary injunction stage track the burdens at trial.

The Government attempts to limit the rule announced in Ashcroft to content-based restrictions on speech, but the distinction is unavailing. The fact that Ashcroft involved such a restriction was the reason the Government had the burden of proof at trial under the First Amendment, see id., at 665, but in no way affected the Court’s assessment of the consequences of having that burden for purposes of the preliminary injunction. Here the burden is placed squarely on the Government by RFRA rather than the First Amendment, see 42 U. S. C. §§2000bb–1(b), 2000bb–2(3), but the consequences are the same. Congress’ express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the preliminary injunction stage.

III

The Government's second line of argument rests on the