Paul Clement's reply brief
<http://www.scotusblog.com/wp-content/uploads/2017/05/16-814-pet-cert-reply.pdf>.
Case schedule for Conference on 05/18.

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
>>>
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>>
>>
>


-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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