Thanks to Marty for re-upping this thread. Two initial, related thoughts: 1. It would be very interesting to hear from Chip on this issue, as the Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent article, "*Hobby Lobby* and the Dubious Enterprise of Religious Exemptions," for the proposition that RFRA's "substantial burden" inquiry includes both a "secular cost" and a "religious cost" component.
2. Interestingly, although the CAAF does not explicitly acknowledge Chip's warning about the dangers of the "religious cost" component of the substantial-burden inquiry -- that "to the extent the regime permits judges to determine the religious weight and significance of certain practices, the regime unconstitutionally entrusts the state with questions that it is constitutionally incompetent to answer" -- the CAAF applies the "religious cost" component in a way that seems designed to avoid the danger by only asking whether the claimant demonstrated an "honest belief" that there was a religious cost: [W]hile we will not assess the importance of a religious practice to a practitioner’s exercise of religion or impose any type of centrality test, a claimant must at least demonstrate “an honest belief that the practice is important to [her] free exercise of religion” in order to show that a government action substantially burdens her religious exercise. *Sossamon*, 560 F.3d at 332 …. This requirement is not novel; language in central Supreme Court opinions on the question of substantial burden affirms that the adherent’s subjective belief in the importance of a practice to her religion is relevant to the sub- stantial burden inquiry…. In this case, Appellant did not present any testimony that the signs were important to her exercise of religion …. While Appellant testified that posting the signs was religiously motivated in part, she did not testify that she believed it is any tenet or practice of her faith to display signs at work…. Although Appellant did not have to provide evidence that posting signs in her shared workspace was central to her belief system, she did have to provide evidence indicating an honest belief that “the practice [was] important to [her] free exercise of religion.” *See Sossamon, *560 F.3d at 332. Notably, the cert. petition completely ignores the "honest belief" component of the CAAF's reasoning above, reframing the CAAF's holding as follows: The CAAF focused on "the subjective importance of the conduct to the person’s religion,” and *it held that adherents must show that a desired practice “is important to her religious exercise”* and implicates a “tenet” or precept” of her faith. This entire line of inquiry, which was central to the CAAF’s rejection of LCpl Sterling’s RFRA claim, took the CAAF to a place no secular court is equipped or authorized to go. (emphasis added). The petition also ignores the fact that the CAAF's "honest belief that the practice is important" test comes from the Fifth Circuit's decision in *Sossamon*, a decision that is nowhere acknowledged in the petition. This oversight is particularly interesting given that the petition seeks to portray the CAAF's decision as being on the wrong side of a circuit split in which the Fifth Circuit allegedly represents the right side. - Jim On Mon, Feb 20, 2017 at 12:05 PM, Marty Lederman < martin.leder...@law.georgetown.edu> wrote: > Now that Paul Clement has filed a cert. petition > <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf> > 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? > > > >
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