Thanks, Alan. Yes, as I mentioned in my first post on the case last summer, the USG would definitely win under RFRA, anyway, because avoiding a Free Speech violation would surely be a compelling interest for denying the exemption. Another reason the Court should deny cert. It shouldn't even be necessary to reach the compelling interest, though.
On Mon, Feb 20, 2017 at 5:16 PM, Alan E Brownstein <aebrownst...@ucdavis.edu > wrote: > Three quick thoughts. > > > 1. It would be helpful at least as a first step to limit the passages in > Hobby Lobby about substantial burden to which Doug refers to claims where > the government requires religious individuals or institutions to so some > thing that their religion prohibits (often complicity claims). I think one > can reasonably argue that the Court's review of substantial burden need not > be so deferential to the religious claimant in cases like this one -- where > the claimant is arguing that the government is burdening her ability to do > something that her religion requires or motivates her to do. > > > 2. Marty's point is well taken. If a person's religion allows for > alternative ways to satisfy obligations -- that is, there are alternative > avenues for religious exercise that satisfy the requirement's of one's > faith -- then there is a strong argument that the claimant's religious > exercise is not being substantially burdened if only one of those > alternatives is restricted. The problem is that a claimant may argue that > his or her idiosyncratic beliefs may not recognize such alternatives as > being even minimally acceptable. Court's could of course also try to argue > that as a secular matter alternative ways of satisfying a religious > requirement are equivalent to each other so that burdening one alternative > is not substantial because the other remains available. My concern here is > that religious mandates often involve ritual acts and I am not sure that > the courts should be deciding that two arguably similar acts have > equivalent ritual significance. That does not seem to be a problem in the > case we are discussing, however. > > > 3. if the reason for the signs being taken down is a rule that the > military does not allow any signs containing personal messages visible to > others in a work station, or some other general speech restriction, isn't > it clear that a RFRA ruling in favor of the claimant in this case would > violate the Free Speech Clause of the First Amendment? Requiring the > government to satisfy a more rigorous standard of review to regulate > religious speech than it must satisfy to regulate non-religious speech > would be viewpoint discrimination in favor of religious speech which is > subject to strict scrutiny review and presumptively unconstitutional. > > > Alan Brownstein > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Eric J Segall <eseg...@gsu.edu> > *Sent:* Monday, February 20, 2017 1:11:50 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens > > That's fair Doug. > > e > > Sent from my iPhone > > On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > Well, the widespread hostility to enforcing RFRA *is* a threat to > religious liberty. Just because RFRA’s supporters overreach on some issues > does not change the fact that RFRA’s opponents are overreaching on other > issues. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Eric > J Segall > *Sent:* Monday, February 20, 2017 3:47 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; > Marty Lederman <lederman.ma...@gmail.com> > *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens > > > > Beautifully said Doug. I would just add that the kind of potential abuse > you are talking about is maybe inevitable when this kind of law becomes > part of the culture wars, and RFRA certainly has become that. Even Justice > Alito has given speeches saying the potential non-enforcement of RFRA has > become a threat to "religious liberty." > > > > Best, > > > > Eric > ------------------------------ > > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu> > *Sent:* Monday, February 20, 2017 3:37:26 PM > *To:* Law & Religion issues for Law Academics; Marty Lederman > *Subject:* RE: Re-upping: Sterling: A helpful test case on RFRA burdens > > > > This case may well be a trial lawyer’s failure to put on the evidence. > Lawyers too often think the burden on religious practice is obvious, and > fail to elicit the testimony that would clearly explain how and why the > practice is religious and important and the challenged rule is a > substantial burden. I suspect that more could have been offered here, but > we don’t know that, and the record is what it is. > > > > Passages in the Court’s opinion in *Hobby Lobby* invite the kind of > argument that Paul is making. But reading those passages for their maximum > possible reach would be wholly unworkable, which is why seven of eight > circuits refused to read it that way in the litigation that led to *Zubik*. > The cryptic order in *Zubik* implies a four-four split, which in turn > implies that four Justices were prepared to find a substantial burden > there. I think that would have been a mistake, but the claimed burden > there, however attenuated, at least connected to an important religious > teaching. Far more implausible and attenuated claims will follow, in which > religious claimants seek to govern the world by insisting that the way the > world is currently being run burdens their religion, and no one can > question their claim of burden. These kinds of claims will discredit the > whole enterprise, which faces enough hostility already. > > > > > > > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty > Lederman > *Sent:* Monday, February 20, 2017 3:07 PM > *To:* Marty Lederman <lederman.ma...@gmail.com> > *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens > > > > Now that Paul Clement has filed a cert. petition > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699&sdata=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D&reserved=0> > in this case, I thought I might revive the thread, which didn't inspire any > reactions last time around! Perhaps I'm alone, but it strikes me that the > case raises a very interesting and important question about how to assess > whether a burden on religious exercise is "substantial" for RFRA purposes. > To recap the very straightforward facts: > > > > 1. Marine Corps Lance Corporal Monfia Sterling posted three identical > signs in her workspace, each containing only the words “No weapon formed > against me shall prosper”--two of them in large (28-point) font. The > statement derives from Isaiah 54:17. She posted one sign 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 superior officer insisted that she take the signs down; indeed, > that officer threw her signs in the trash, and she continued to repost > them. Therefore Sterling was court-martialed for insubordination, and > sentenced to a bad-conduct discharge and a reduction in pay grade--no small > thing in terms of sanctions. As far as the record shows, her superior > officer was not motivated by the fact that the signs were, or Sterling > was, religious--he would have done the same no matter what the employee's > motivation was, and no matter whether the signs were scriptural. > > > > 3. Sterling testified that the signs had religious significance to her, > and that she posted them in response to difficulties she was experiencing > at work. They were, she testified, a "mental reminder” to her and that she > did not intend to “send a message to anyone” else. Paul's petition > asserts, without citation to the record, that "[t]he conduct at issue was > an undisputed exercise of religion by LCpl Sterling to beseech a higher > power for spiritual strength and fortitude in the face of challenges." > Although there's no evidence that Sterling intended any "beseeching," I > think it's fair to say that she did intend to *invoke the words* of a > higher power "for spiritual strength and fortitude in the face of > challenges." Sterling did not testify, or otherwise claim, however, that > her religion mandated that she post the signs, or that it was a common > practice or tenet of her religion. More to the point, she apparently did > not testify about *whether *or *why *posting the signs was important to > her, or a significant part of her religious exercise. She did not, for > example, explain why it would not have been just as effective for her to > post the signs in smaller font that others would not notice, or to use > other means of "mentally reminding" herself. > > > > The Court of Appeals for the Armed Forces held that Sterling had failed to > meet her RFRA burden because she did not establish either the "subjective > importance of the conduct" to her religious exercise, or that such posting > was a “tenet” or "precept” of her faith. > > > > My question: Can it really be the case that Sterling has established a > "substantial burden" on her religious exercise, without any evidence at all > of how or why the posting of the bible verse at her desk, in a font big > enough for bystanders to see, was at all important to her religious > commitments or exercise? > > > > According to Paul Clement's petition, an inquiry into the "subjective > importance" of the practice to the plaintiff is not only unnecessary under > RFRA, but constitutionally prohibited--it "took the CAAF to a place no > secular court is equipped or authorized to go." "[A]ny sensible > interpretation of the Religion Clauses must forswear a judicial > inquiry into the 'subjective importance' of a religious practice." > > > > I'm genuinely curious: What do others think of this argument? Does > (must?) RFRA truly treat any and all religiously motivated activity the > same, regardless of how significant it is to the adherent's beliefs and > practices? > > > > > > > > > > > > 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 > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Freligionclause.blogspot.com%2F2016%2F08%2Farmed-forces-court-of-appeals.html&data=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636232199144615699&sdata=ZnCULd7zaUjDQVa0U6k0%2FA0V3tI%2FvMpJnggjI86gSkQ%3D&reserved=0> > > > > > 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 > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636232199144615699&sdata=T28trH7xQkQltS%2B8k4z0OObapr6pCeF9ZFah2cp%2BU34%3D&reserved=0> > > 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. > > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > https://na01.safelinks.protection.outlook.com/?url= > http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman% > 2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu% > 7Cc9d1dc5785c14ff84a6e08d459d3a931%7C515ad73d8d5e4169895c9789dc74 > 2a70%7C0%7C0%7C636232213020683182&sdata=9MCVa%2F4E8M% > 2Fc1NWSPVllMvw6oUYqLU3mPNiXCzqo1GY%3D&reserved=0 > > 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. > > > _______________________________________________ > 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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