As Marty Lederman among others has demonstrated, the Greens of Hobby Lobby were never “compelled … to do something that they thought religiously forbidden;” they always had the choice to take a financial hit by no longer offering insurance, just as Abdulhaseeb has the choice to miss some meals. Is there a sorites paradox here? When short of starvation does missing meals become substantial enough to count? When is a financial penalty substantial enough, and should it matter if the person suffering it is dependent on unemployment insurance or a multi-millionaire?
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 21, 2017 6:22 PM To: Law & Religion issues for Law Academics Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens Well, given that Gorsuch voted in favor of both Abdulhaseeb and the likewise presumably very poor Native American prisoner, Yellowbear v. Lampert, that is especially strong reason not to succumb to the temptation. Indeed, whatever might be required merely for Article III standing, Gorsuch’s point in Hobby Lobby was that the government compelled plaintiffs to do something that they thought religiously forbidden; likewise, in Yellowbear, the government forbade something that plaintiff thought religiously required, as it did in Abdulhaseeb as to the required halal meat claim. The Christians, Native American religious practitioner, and the Muslim were treated quite alike in this respect. But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all of the tray's contents inedible,” Gorsuch thought that the burden wasn’t substantial, because while “It's surely a burden to forgo an occasional meal,” the burden is less substantial. And as to Ali, Gorsuch concluded that, though a “burden can count as substantial if it prohibits the prisoner taking actions motivated by sincerely held religious beliefs — or if it requires or places considerable pressure on the prisoner to do something his sincerely held religious beliefs forbid,” “Mr. Ali’s complaint fails to allege so much”: Mr. Ali's complaint fails to allege so much. In places, the complaint suggests that the prison forbids Mr. Ali from using his religious name on mail — and that this is the gravamen of his complaint. Indeed, the title of the relevant claim in his complaint reads: "The SCF mail room's refusal to permit the plaintiff to send and receive mail under Jahad Ali violates his right to freely exercise his religious beliefs." R. at 35. Yet, Mr. Ali himself elsewhere concedes that the prison doesn't actually forbid the use of his religious name. Instead, he simply has to include his committed name alongside his religious name. So even if we were to agree with Mr. Ali that it might be a substantial burden on his religious exercise to forbid him to use his religious name on his mail, his own pleading makes plain that no such burden exists. We suppose it's possible the prison's modest requirement that both names appear could itself be enough to qualify as a substantial burden under RLUIPA — if, say, a prisoner's sincerely held religious beliefs forbade any mention of a former name. But even affording the liberality due a pro se litigant, we don't see this allegation clearly made in claim 2 of Mr. Ali's complaint. Seems like a reasonable analysis to me. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne Sent: Tuesday, February 21, 2017 4:08 PM To: Law & Religion issues for Law Academics Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens Consider the following exception to Chip’s first proposition below, that "’ secular cost’… does no work in cases involving the religious freedom of prisoners” a particularly timely exception since it comes from a Gorsuch opinion: In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner raised a variety of objections to his inability to get what he considered a proper halal diet, one of which, as framed in the language of Gorsuch’s concurrence, was that the prison “sporadically placed questionable foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all of the tray's contents inedible.” While Gorsuch thought Abdulhaseeb should not be “forced to choose between violating his religious beliefs and starving to death” he thought the sporadic deposit of questionable foods did not even meet the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described only a moderate impediment to -- and not a constructive. prohibition of -- his religious exercise. It's surely a burden to forgo an occasional meal. But it's not a substantial burden, and RLUIPA proscribes only government actions that substantially burden religious exercise.” Quite apart from its relevance, if any to Sterling, I’d welcome thoughts on this, especially coming from Gorsuch, who said, in his Hobby Lobby concurrence that it was enough to give the Greens individually standing that “the company shares of which they are the beneficial owners would decline in value if the mandate's penalties for non-compliance were enforced.” Let me also throw into the mix another relevant Gorsuch opinion, Ali v. Wingert, 569 Fed. Appx. 562 (2014) which also is a counter-example for Chip’s first proposition, in that involves a prisoner with a choice, also, as it happens a Muslim prisoner of whose claim of burden (this time religious burden, not secular) Gorsuch is dismissive. When pro se plaintiff Ali objects to being forced to include the name he was convicted under on all mail, despite a religiously motivated name change, Gorsuch says he has not articulated a substantial burden on a sincere religious exercise, putting in scare quotes Ali’s claim “that his spiritual experience is ‘heightened’ by using his religious name and that he finds his old name ‘offensive.’…. It might be ‘offensive’ to him, but he does not tell us how or why it burdens his religious exercise.” I don’t want to succumb to the temptation of thinking Gorsuch sees burdens on rich and powerful Christians more readily than he does those facing poor Muslim prisoners, but I could use your help resisting it. From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, February 21, 2017 5:26 PM To: Law & Religion issues for Law Academics; James Oleske Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens 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.
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