Thanks to Jim Oleske for the kind words. Here is a thought about the
general landscape of inquiry into burdens on religion, and a related
thought about the way Texas has argued in these various matters:
1) The proposition that RFRA's "substantial burden" inquiry includes both a
"secular cost" and a "religious cost" component, which is screamingly
obvious from Yoder (where the religious cost of compliance with law is the
centerpiece), does no work in cases involving the religious freedom of
prisoners. Why? Because in the civilian world, there is typically a
choice to be made -- stick to your religious convictions and pay the
secular price (fines; imprisonment; lost government benefit), or violate
your religious convictions (that is, incur a religious cost) to avoid the
secular price. But in prison, the inmates almost always need permission,
not forgiveness, to follow the religious convictions in question. The
prison authorities don't threaten inmates with punishment if they, for
example, grow their hair long. They just say no, and coercively cut the
hair (or deny whatever privilege the inmate is seeking). So the ONLY
question in these cases is the "religious cost" of being unable to practice
what the prisoner claims is his faith. This leads to some constitutionally
unacceptable consequences, like having the state consult clergy to
determine whether denial of the privilege is a substantial burden on the
prisoner's religious exercise, and it always winds up with the state
(through some agent, executive or judicial) having to make a religious
judgment.
2) Texas in Sossomon as compared to Texas in other settings -- when Texas
litigates against its own prisoners, it (like other states) is always
looking for ways to say no, to deny RLUIPA claims. So of course it argues
for a narrow definition of substantial burden, and a broad power of
judicial review over the question. By comparison, when the case is not
about a Texas prisoner, and indeed does not involve Texas law at all, and a
high profile cert petition is filed, some grandstanding state AG is going
to take the side of expansive religious freedom, and argue for
self-declaration of substantial religious burden. What a surprise. The
concept is infinitely malleable, and the context drives lawyers and judges
to stretch and squeeze it. This is one of the many reasons why I have
claimed for years that generic regimes of religious exemption, like RFRA,
can never be applied in a principled fashion over time.
On Tue, Feb 21, 2017 at 11:38 AM, James Oleske <jole...@lclark.edu> wrote:
> It is also worth noting that Texas has filed an amicus brief in support of
> Sterling's cert. petition that appears to be in some tension with the
> state's 5th Circuit brief in *Sossoman*.
>
> Compare Texas Amicus Br. in Sterling at 6-9 ("The Court Below *Wrongly
> Inquired into the Religious Importance* of an Exercise of Religion....
> courts should not embark on an attempt to pronounce the centrality,
> *importance,
> or significance of a religiously motivated practice in a person’s faith*")
> (emphasis added) with Texas Supp. Br. in Sossamon at ("A government action
> or regulation creates a 'substantial burden' on a religious exercise if it
> truly pressures the adherent to significantly modify his religious behavior
> *and
> significantly violate his religious beliefs*") (emphasis added) (citing
> for support the very page of the Fifth Circuit case, Adkins v. Kaspar, in
> which that court first held that a RLUIPA claimant bears the "burden of
> demonstrating the honesty and accuracy of his contention that the religious
> practice at issue *is important to the free exercise of his religion*").
>
> Like Sterling's cert. petition, Texas's supporting amicus brief
> completely ignores the "honest belief" component of the CAAF's "important
> to free exercise" reasoning, even though that component comes directly from
> the Fifth Circuit's decision in *Sossamon*, which in turn relied on the
> earlier *Adkins* case cited in Texas's *Sossamon *brief.
>
> - Jim
>
>
> On Tue, Feb 21, 2017 at 7:08 AM, James Oleske <jole...@lclark.edu> wrote:
>
>> 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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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
301-928-9178 (mobile, preferred)
202-994-7053 (office)
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
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