Sorry, meant to add the following to Point 3 (in bold): 3. Sterling's posting of the signs was (let’s assume--as the court did) sincerely motivated by her religious beliefs, and the signs had religious significance to her. *In particular, she testified that she "posted the signs in the form of the Christian Trinity to have the 'protection of three' and to **serve as a 'mental note.'” *Yet she did not make any claim that posting them was religiously mandated, or that it was a tenet (central or otherwise) of her religion to do so.
On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > For purposes of a project I'm currently working on, I'm genuinely curious > whether any readers on the list think that there was a substantial burden > here. Paul Clement argued on behalf of the plaintiff's cause, and there > were a slew of amicus briefs, so I assume there's a serious dispute out > there. I'd like to understand it better, and to be able to put the burden > question in the best possible light. (Please note that I am putting aside > the question of whether the Air Force would still win on the back end of > RFRA, which it likely would, if for no other reason than that offering a > preference for religious workplace speech would violate the Free Speech > Clause. I am only interested for now in the burden question.) > > Assuming the following facts, as the court did: > > 1. Lance Corporal Sterling posted three identical signs in her workspace, > each containing only the words “No weapon formed against me shall prosper,” > on 8 1/2- x 11-inch paper in 28-point font or smaller. One was on the side > of her computer tower, one above her computer screen, and one above her > desk mailbox. The signs were large enough for those walking by her desk, > and Marines seated at her workspace, to read. > > 2. Her superiors insisted that she take the signs down, on penalty of > court-martial for insubordination (a pretty big deal in terms of sanction, > as, presumably, would be her leaving the service). They were not motivated > by the fact that the signs, or Sterling, was religious--they would have > done the same no matter what the employees' motivation was. > > 3. Her posting of the signs was (let’s assume--as the court did) > sincerely motivated by Sterling's religious beliefs, and the signs had > religious significance to her. Yet she did not make any claim that posting > them was religiously mandated, or that it was a tenet (central or > otherwise) of her religion to do so. > > Has she met her burden of demonstrating a substantial burden on her > religious exercise? If so, and if we can imagine there are other officers > in her workplace who would be similarly (and just as intensely) motivated > to post signs at their stations for *nonreligious *reasons, why should we > assume Congress would want to provide rights to Sterling (even the right to > put the government to its RFRA burden) that it is unwilling to give her > similarly situated, secularly motivated colleagues? > > Thanks in advance for any responses. > > > On Thu, Aug 11, 2016 at 9:52 AM, Friedman, Howard M. < > howard.fried...@utoledo.edu> wrote: > >> The Armed Forces Court of Appeals handed down an interesting RFRA >> decision yesterday-- with an extensive discussion of the "substantial >> burden" prong as well as some other unique issues: >> http://religionclause.blogspot.com/2016/08/armed-forces- >> court-of-appeals.html >> >> Howard Friedman >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > >
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