With respect, I think that neither Mary Anne Case nor Chris Lund have provided counter-examples to my assertion that prison inmate cases typically involve only the question of the quality or quantity of the religious burden (is it "substantial"?) and typically do not involve the secular cost of compliance with faith. What would be the "consequences" to the inmate in Holt v. Hobbs if he did not shave? If the answer is solitary confinement until he is willing to shave, that would indeed be a secular burden on religious compliance. But if the answer is "we will forcibly shave your face," that is just a coercive way of refusing permission to engage in the requested practice. And, indeed, both of Mary Anne's examples (whatever they may show about Judge Gorsuch) are likewise about refusal of permission to do what the prisoner requested (use only a certain name; eat only certain foods), rather than punishments for engaging in the practice. Of course, there may be counterexamples. But if you look at the hundreds of RLUIPA cases involving prisoners, where substantiality of burden is put in issue, I think you will see that the overwhelming majority of them involve inquiry into the importance of a religious practice, not the question of secular consequences for choosing to engage in the practice.
I don't want to overdo this point. It is mainly about analytical clarity in discussion of whether a burden on religious exercise is substantial. In some cases - and prison cases are the best example -- the question is all about the religious significance of the practice, and not at all about the penalty for engaging in it. And that means that prison officials, and sometimes judges, must weigh the religious significance of the practice to the complainant. That weighing, I believe, involves adjudication of a religious question, outside the state's constitutional competence (just like the question of who is fit for ministry, see Hosanna-Tabor). On Tue, Feb 21, 2017 at 11:25 PM, Christopher Lund <l...@wayne.edu> wrote: > I’m probably wrong. But I’ve traditionally thought that any financial > penalty is enough. The fine in *Yoder *was $5. *Sherbert *involved a > discretionary governmental benefit—and the Court didn’t seem to care how > much money Adele Sherbert had, or how much she was losing in benefits. I > always thought the rule pretty simple here: If the government requires you > on pain of penalty to do something your religion forbids, or forbids > something your religion requires, that’s a substantial burden. The amount > of penalty is generally irrelevant. In *Holt v. Hobbs, *Arkansas > memorably tells the prisoner, “You will abide by [Arkansas Department of > Correction] policies and if you choose to disobey, you can suffer the > consequences.” The Court says that’s a substantial burden, but the reader > never learns what “suffer the consequences” actually means. The Court does > not say; it’s moved on to the next issue. > > > > This is not to say that religious claimants can show a substantial burden > by mere say-so. There are still significant classes of cases where there’s > no substantial burden despite the plaintiffs’ contentions otherwise—there’s > still *Lyng *and *Bowen* and *Braunfeld*. (And I think there’s a good > case that *Zubik *fits inside *Lyng/Bowen*.) But it’s **outside** the > classic context of the government directly penalizing religiously motivated > action/inaction that I really think burdens become a matter of degree—a > sorites paradox, as you say. This is where there’s the most room for > judgment, and judgments can differ. > > > > In that vein—and this really was the original point of my post!—I have an > example of a sorites paradox for you in the context of hungry religious > inmates, http://www.opn.ca6.uscourts.gov/opinions.pdf/15a0664n-06.pdf. > The prison normally serves 2,600 calorie meals. But bagged Ramadan meals > have fewer calories. Substantial burden? Well, it probably depends on how > many calories the Ramadan meals actually have. 500 calories—yes, probably > a substantial burden. 2,500 calories—no, probably not. In the actual > case, the Ramadan meals had 1,300 calories—and not only did the 6th Circuit > say it violated RLUIPA, it denied qualified immunity. > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > Website—http://law.wayne.edu/profile/christopher.lund/ > > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Case, Mary Anne > *Sent:* Tuesday, February 21, 2017 7:34 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > *Subject:* RE: Re-upping: Sterling: A helpful test case on RFRA burdens > > > > 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-bounces@ > lists.ucla.edu <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-bounces@ > lists.ucla.edu <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-bounces@ > lists.ucla.edu <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. > > > > _______________________________________________ > 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. > -- 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
_______________________________________________ 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.
