Here's the government's brief in opposition <http://www.scotusblog.com/wp-content/uploads/2017/04/16-814-BIO.pdf>. It stresses that RFRA's substantial burden test requires the claimant at a minimum to provide evidence of an honest belief that the practice in question--rather than available alternatives--was *important* to her exercise of religion (something utterly lacking here--see my description below).
The SG does not mention, in addition, that even if there were a substantial burden here, RFRA would not require a religious exemption because the government has a compelling interest in not violating the Free Speech Clause. On Mon, Feb 20, 2017 at 3:05 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? > > > > > > 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-cour >>> t-of-appeals.html >>> >>> 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 >>> >>> 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. >>> >> >> > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
_______________________________________________ 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.