The petitioner's briefing at the cert stage of this case has been
profoundly discouraging.
Although the case does raise a genuinely interesting question that may be
worthy of Supreme Court review -- must a RFRA plaintiff show "an honest
belief that the practice is important to his free exercise of religion" --
the original cert petition completely ignored the CAAF's "honest
belief/important" language in an effort to portray the case as implicating
a circuit split over whether the religious practice at issue must be
"religiously compelled."
Then, after the federal government pointed out this mischaracterization and
the petitioner was forced to acknowledge the CAAF's "honest
belief/important" language in its reply, the petitioner continued to insist
the CAAF was on the wrong side of a circuit split without acknowledging
that the two circuits that have used the same "honest belief/important"
test as the CAAF (5th and 10th) are circuits petitioner claims are on the
right side of the split. *See *Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316
(10th Cir. 2010) ("The practice burdened need not be central to the
adherent's belief system, but the adherent must have an honest belief that
the practice is important to his free exercise of religion.") (quoting Sossamon
v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir. 2009)).
Although the reader would never know it from the petitioner's argument,
the CAAF decision was explicitly rooted in the 5th and 10th Circuit's
approaches:
But while 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; see also Ford, 352 at 593–94. A substantial burden is not
measured only by the secular costs that government action imposes; the
claimant must also establish that she believes there are religious costs as
well, and this should be clear from the record. See Ira C. Lupu, Hobby
Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. &
Gender 35, 80 (2015); cf. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th
Cir.2010).
United States v. Sterling, 75 M.J. 407, 417–18 (C.A.A.F. 2016)
In the ultimate irony, the petitioner's reply brief relies on the 10th
Circuit's decision in Calbone without acknowledging that that decision
approved the "honest belief" test applied by CAAF.
As of today, there is no circuit split over the "honest belief" test
applied by the 5th Circuit, the 10th Circuit, and the CAAF. Perhaps the
issue is important enough that the Supreme Court should grant cert in the
absence of as split, but the petitioner's briefing in this case has been
far less than forthright.
- Jim
On Fri, May 5, 2017 at 8:20 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:
> 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.Lederman@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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>>>>
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>>>> wrongly) forward the messages to others.
>>>>
>>>
>>>
>>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937 <(202)%20662-9937>
>
>
> _______________________________________________
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