RE: Holt v. Hobbs Oral Argument

[Berg, Thomas C.]

Sorry, looks like my first link swept up a period into the link. I tested this 
and it worked:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Berg, Thomas C.
Sent: Tuesday, October 07, 2014 2:59 PM
To: Law & Religion issues for Law Academics
Subject: Holt v. Hobbs Oral Argument

The oral argument transcript is up, 
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
  I haven't read it yet, but from the SCOTUS Blog report, it looks like things 
went poorly for the state.  
http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/

We've had little discussion of this case on the list.  I've presumed that's 
because there is a wide consensus that the case is easy.  SCOTUS Blog likewise 
concludes that "[t]he case, at least from the tenor of the oral argument, did 
not seem to be a difficult one."  But assuming that Holt wins, there remains 
the important question of the precise language the Court will use to explicate 
the compelling interest standard in the prison context, where officials get 
some deference.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


___
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Re: Holt v. Hobbs Oral Argument

[Failinger, Marie]

I haven't read all of the background materials, but it seems to me a little
bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch
beard given what one could hide in a typical prison uniform.  If uniforms
are searched for contraband, why not beards?  Seems like it would be much
easier and safer than a uniform search, unless there is some religious ban
against someone touching one's beard.

And what about the value encouraging state to expend a little effort and
creativity in meeting believers half-way by putting the state to its burden
of proof on its interests? In Hennepin County, the jail created an
inmate hijab for Muslim women that doesn't have any folds or places where
contraband can be hidden.   To use the argument example, why couldn't a
Sikh be issued a transparent turban designed to minimize the ability to
hide contraband?

Could Doug or someone could explain the state's argument in the lower court
that someone could drastically change his appearance by shaving his beard
as a reason for denial?  I presume that implies that he could escape.  I am
trying to imagine a case in which a guy walking around in prison with a
jumpsuit (or less) would be allowed to leave prison because he wasn't
recognized as prisoner X.  In the movies, at least the prisoners have to
steal a guard's uniform to get out:)

I also wonder what everybody thinks about Scalia's statement that religious
beliefs are "categorical," "it's [what] God tells you," implying that there
is no such thing as ethical "partial" compliance and that there has to be a
specific oral or written command from God for a RLIUPA claim to be viable?
   I guess I would have to be a complete pacifist, observe glatt kosher
(and no elevators on Shabbat) or go to church every Sunday before I could
object to the state's rules. Or does Scalia mistakenly assume that Islam is
more "categorical" than these other religions?

On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C.  wrote:

>  The oral argument transcript is up,
> http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
> I haven't read it yet, but from the SCOTUS Blog report, it looks like
> things went poorly for the state.
> http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/
>
> We've had little discussion of this case on the list.  I've presumed
> that's because there is a wide consensus that the case is easy.  SCOTUS
> Blog likewise concludes that "[t]he case, at least from the tenor of the
> oral argument, did not seem to be a difficult one."  But assuming that Holt
> wins, there remains the important question of the precise language the
> Court will use to explicate the compelling interest standard in the prison
> context, where officials get some deference.
>
> -
>
> Thomas C. Berg
>
> James L. Oberstar Professor of Law and Public Policy
>
> University of St. Thomas School of Law
>
> MSL 400, 1000 LaSalle Avenue
>
> Minneapolis, MN   55403-2015
>
> Phone: 651 962 4918
>
> Fax: 651 962 4881
>
> E-mail: tcb...@stthomas.edu
>
> SSRN: http://ssrn.com/author='261564
>
> Weblog: http://www.mirrorofjustice.blogs.com
>
>
> 
> --
>
> ___
> 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.
>



-- 
Marie A. Failinger
Professor of Law
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651.523.2124 (work phone)
651.523.2236 (work fax)
mfailin...@hamline.edu (email)
___
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RE: Holt v. Hobbs Oral Argument

[Friedman, Howard M.]

I think this case on its facts is likely to be easy for the Court because so 
many other states have found ways to accommodate beards.  That being the case, 
I fear that the Court may not be as careful as it should in formulating the 
strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward 
two kinds of justifications for refusals to accomodate religious beliefs-- 
security concerns (as in this case) and budgetary issues (e.g. in claims for 
kosher or Halal diets).  It seems to me that courts are fairly able to assess 
budgetary justifications. However I fear that they are less able to assess 
security concerns as they exist on the ground.  If the court imposes truly 
strict scrutiny when security is at issue, I fear that prisons may be unable to 
adequately deal with Racist, neo-Nazi, and similar groups that assert they are 
religious organizations.  Currently a number of prisons are facing the question 
of whether Nations of Gods and Earths should be recognized as a religion or 
classified as a security threat group.  How much deference should be given to 
prison officials there?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Failinger, Marie [mfailin...@hamline.edu]
Sent: Tuesday, October 07, 2014 6:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: Holt v. Hobbs Oral Argument

I haven't read all of the background materials, but it seems to me a little 
bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch beard 
given what one could hide in a typical prison uniform.  If uniforms are 
searched for contraband, why not beards?  Seems like it would be much easier 
and safer than a uniform search, unless there is some religious ban against 
someone touching one's beard.

And what about the value encouraging state to expend a little effort and 
creativity in meeting believers half-way by putting the state to its burden of 
proof on its interests? In Hennepin County, the jail created an inmate 
hijab for Muslim women that doesn't have any folds or places where contraband 
can be hidden.   To use the argument example, why couldn't a Sikh be issued a 
transparent turban designed to minimize the ability to hide contraband?

Could Doug or someone could explain the state's argument in the lower court 
that someone could drastically change his appearance by shaving his beard as a 
reason for denial?  I presume that implies that he could escape.  I am trying 
to imagine a case in which a guy walking around in prison with a jumpsuit (or 
less) would be allowed to leave prison because he wasn't recognized as prisoner 
X.  In the movies, at least the prisoners have to steal a guard's uniform to 
get out:)

I also wonder what everybody thinks about Scalia's statement that religious 
beliefs are "categorical," "it's [what] God tells you," implying that there is 
no such thing as ethical "partial" compliance and that there has to be a 
specific oral or written command from God for a RLIUPA claim to be viable?I 
guess I would have to be a complete pacifist, observe glatt kosher (and no 
elevators on Shabbat) or go to church every Sunday before I could object to the 
state's rules. Or does Scalia mistakenly assume that Islam is more 
"categorical" than these other religions?

On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C. 
mailto:tcb...@stthomas.edu>> wrote:
The oral argument transcript is up, 
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
  I haven't read it yet, but from the SCOTUS Blog report, it looks like things 
went poorly for the state.  
http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/

We've had little discussion of this case on the list.  I've presumed that's 
because there is a wide consensus that the case is easy.  SCOTUS Blog likewise 
concludes that "[t]he case, at least from the tenor of the oral argument, did 
not seem to be a difficult one."  But assuming that Holt wins, there remains 
the important question of the precise language the Court will use to explicate 
the compelling interest standard in the prison context, where officials get 
some deference.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com



___
To post, send message to 
Religionlaw@lists.ucla.edu<ma

Re: Holt v. Hobbs Oral Argument

[Marc Stern]

A simple fact of prison litigation is that prison officials lie-or simply care 
little for the facts-when asserting concerns about security. When I was a law 
clerk, the states routinely filed canned briefs asserting grave and unavoidable 
security concerns , no matter what the reality was-and in one memorable case in 
defense of a practice( labeling prisoners by race) that the Supreme Court had 
even then long since condemned. One state commissioner of corrections once told 
a group of us that he was aware that prison security officials could not be 
relied on to fairly assess risks and the deputy commissioner of another flatly 
told me she know prison administrators routinely lied. That sort of paying fast 
and loose occurred in this case,but was caught by counsel with the skill, time, 
commitment and knowledge to discover the fraud on the court- luxuries pro se 
litigants often don't have. And even when they do, some judges will still 
invoke deference.

Prisons are not like other places, and things that seem innocent and harmless 
can be deadly weapons. Deference to prison officials therefore makes much 
sense- but only if prison officials can be counted on to tell the truth and 
deliver fair and honest assessments of risk.   Too many don't and courts should 
not ratify those malign  ‎practices by blindly deferring to prison officials. 
How to apply deference without judicial abdication is the hard question in this 
case, not the question of how long
‎Is too long.
Marc‎ Stern
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Friedman, Howard M.
Sent: Tuesday, October 7, 2014 9:03 PM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: RE: Holt v. Hobbs Oral Argument


I think this case on its facts is likely to be easy for the Court because so 
many other states have found ways to accommodate beards.  That being the case, 
I fear that the Court may not be as careful as it should in formulating the 
strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward 
two kinds of justifications for refusals to accomodate religious beliefs-- 
security concerns (as in this case) and budgetary issues (e.g. in claims for 
kosher or Halal diets).  It seems to me that courts are fairly able to assess 
budgetary justifications. However I fear that they are less able to assess 
security concerns as they exist on the ground.  If the court imposes truly 
strict scrutiny when security is at issue, I fear that prisons may be unable to 
adequately deal with Racist, neo-Nazi, and similar groups that assert they are 
religious organizations.  Currently a number of prisons are facing the question 
of whether Nations of Gods and Earths should be recognized as a religion or 
classified as a security threat group.  How much deference should be given to 
prison officials there?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Failinger, Marie [mfailin...@hamline.edu]
Sent: Tuesday, October 07, 2014 6:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: Holt v. Hobbs Oral Argument

I haven't read all of the background materials, but it seems to me a little 
bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch beard 
given what one could hide in a typical prison uniform.  If uniforms are 
searched for contraband, why not beards?  Seems like it would be much easier 
and safer than a uniform search, unless there is some religious ban against 
someone touching one's beard.

And what about the value encouraging state to expend a little effort and 
creativity in meeting believers half-way by putting the state to its burden of 
proof on its interests? In Hennepin County, the jail created an inmate 
hijab for Muslim women that doesn't have any folds or places where contraband 
can be hidden.   To use the argument example, why couldn't a Sikh be issued a 
transparent turban designed to minimize the ability to hide contraband?

Could Doug or someone could explain the state's argument in the lower court 
that someone could drastically change his appearance by shaving his beard as a 
reason for denial?  I presume that implies that he could escape.  I am trying 
to imagine a case in which a guy walking around in prison with a jumpsuit (or 
less) would be allowed to leave prison because he wasn't recognized as prisoner 
X.  In the movies, at least the prisoners have to steal a guard's uniform to 
get out:)

I also wonder what everybody thinks about Scalia's statement that religious 
beliefs are "categorical," "it's [what] God tells you," implying that there is 
no such thing as ethical "partial" compliance and that there has to be a 
specific oral or written command from God for a RLIUPA claim to be viable?I 
guess I w

Re: Holt v. Hobbs Oral Argument

[Arthur Spitzer]

I also am not concerned that the Court will be insufficiently deferential
to security concerns in prisons and jails.  Recall that they recently
upheld, on security grounds, full-body strip-searches and visual
body-cavity searches for all persons being admitted to local jails, even
though that practice had long been held unconstitutional by almost every
circuit, and jails in most of the nation had been managing quite well for
decades without the practice.  *Florence v. Board of Chosen Freeholders*
(2012).

I suppose the interesting question is whether a person with a sincere
religious objection to being strip-searched would be entitled to an
exemption.  That's only half a joke.

Art Spitzer

*Warning*
*: this message is subject to monitoring by the NSA.*

On Tue, Oct 7, 2014 at 10:07 PM, Marc Stern  wrote:

>  A simple fact of prison litigation is that prison officials lie-or
> simply care little for the facts-when asserting concerns about security.
> When I was a law clerk, the states routinely filed canned briefs asserting
> grave and unavoidable security concerns , no matter what the reality
> was-and in one memorable case in defense of a practice( labeling prisoners
> by race) that the Supreme Court had even then long since condemned. One
> state commissioner of corrections once told a group of us that he was aware
> that prison security officials could not be relied on to fairly assess
> risks and the deputy commissioner of another flatly told me she know prison
> administrators routinely lied. That sort of paying fast and loose occurred
> in this case,but was caught by counsel with the skill, time, commitment and
> knowledge to discover the fraud on the court- luxuries pro se litigants
> often don't have. And even when they do, some judges will still invoke
> deference.
>
>  Prisons are not like other places, and things that seem innocent and
> harmless can be deadly weapons. Deference to prison officials therefore
> makes much sense- but only if prison officials can be counted on to tell
> the truth and deliver fair and honest assessments of risk.   Too many don't
> and courts should not ratify those malign  ‎practices by blindly deferring
> to prison officials. How to apply deference without judicial abdication is
> the hard question in this case, not the question of how long
>  ‎Is too long.
>  Marc‎ Stern
>  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
> network.
>*From: *Friedman, Howard M.
> *Sent: *Tuesday, October 7, 2014 9:03 PM
> *To: *Law & Religion issues for Law Academics
> *Reply To: *Law & Religion issues for Law Academics
> *Subject: *RE: Holt v. Hobbs Oral Argument
>
>  I think this case on its facts is likely to be easy for the Court
> because so many other states have found ways to accommodate beards.  That
> being the case, I fear that the Court may not be as careful as it should in
> formulating the strict scrutiny test under RLUIPA. Broadly speaking,
> prisons have put forward two kinds of justifications for refusals to
> accomodate religious beliefs-- security concerns (as in this case) and
> budgetary issues (e.g. in claims for kosher or Halal diets).  It seems to
> me that courts are fairly able to assess budgetary justifications. However
> I fear that they are less able to assess security concerns as they exist on
> the ground.  If the court imposes truly strict scrutiny when security is at
> issue, I fear that prisons may be unable to adequately deal with Racist,
> neo-Nazi, and similar groups that assert they are religious organizations.
> Currently a number of prisons are facing the question of whether Nations of
> Gods and Earths should be recognized as a religion or classified as a
> security threat group.  How much deference should be given to prison
> officials there?
>
>  Howard Friedman
>  --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie [
> mfailin...@hamline.edu]
> *Sent:* Tuesday, October 07, 2014 6:38 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Holt v. Hobbs Oral Argument
>
>   I haven't read all of the background materials, but it seems to me a
> little bizarre to worry about what one could hide in a 1/4, 1/2 or even 3
> inch beard given what one could hide in a typical prison uniform.  If
> uniforms are searched for contraband, why not beards?  Seems like it would
> be much easier and safer than a uniform search, unless there is some
> religious ban against someone touching one's beard.
>
>  And what about the value encouraging state to expend a little effort and
> creativity in meeting believers half-way by putting the state to its burden
> of proof on its interests?   

Re: Holt v. Hobbs Oral Argument

[Douglas Laycock]

What Marc says is clearly true.  But even in this case, when we caught them red 
handed, I didn't feel like I could say to the Court that they lie routinely. 
Judges have either figured that out, or they don't believe it. And even those 
who have figured it out are unwilling to say it in opinions.  

On Tue, 7 Oct 2014 22:07:56 -0400
 Marc Stern  wrote:
>A simple fact of prison litigation is that prison officials lie-or simply care 
>little for the facts-when asserting concerns about security. When I was a law 
>clerk, the states routinely filed canned briefs asserting grave and 
>unavoidable security concerns , no matter what the reality was-and in one 
>memorable case in defense of a practice( labeling prisoners by race) that the 
>Supreme Court had even then long since condemned. One state commissioner of 
>corrections once told a group of us that he was aware that prison security 
>officials could not be relied on to fairly assess risks and the deputy 
>commissioner of another flatly told me she know prison administrators 
>routinely lied. That sort of paying fast and loose occurred in this case,but 
>was caught by counsel with the skill, time, commitment and knowledge to 
>discover the fraud on the court- luxuries pro se litigants often don't have. 
>And even when they do, some judges will still invoke deference.
>
>Prisons are not like other places, and things that seem innocent and harmless 
>can be deadly weapons. Deference to prison officials therefore makes much 
>sense- but only if prison officials can be counted on to tell the truth and 
>deliver fair and honest assessments of risk.   Too many don't and courts 
>should not ratify those malign  ‎practices by blindly deferring to prison 
>officials. How to apply deference without judicial abdication is the hard 
>question in this case, not the question of how long
>‎Is too long.
>Marc‎ Stern
>Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
>From: Friedman, Howard M.
>Sent: Tuesday, October 7, 2014 9:03 PM
>To: Law & Religion issues for Law Academics
>Reply To: Law & Religion issues for Law Academics
>Subject: RE: Holt v. Hobbs Oral Argument
>
>
>I think this case on its facts is likely to be easy for the Court because so 
>many other states have found ways to accommodate beards.  That being the case, 
>I fear that the Court may not be as careful as it should in formulating the 
>strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward 
>two kinds of justifications for refusals to accomodate religious beliefs-- 
>security concerns (as in this case) and budgetary issues (e.g. in claims for 
>kosher or Halal diets).  It seems to me that courts are fairly able to assess 
>budgetary justifications. However I fear that they are less able to assess 
>security concerns as they exist on the ground.  If the court imposes truly 
>strict scrutiny when security is at issue, I fear that prisons may be unable 
>to adequately deal with Racist, neo-Nazi, and similar groups that assert they 
>are religious organizations.  Currently a number of prisons are facing the 
>question of whether Nations of Gods and Earths should be recognized a
 s a
>religion or classified as a security threat group.  How much deference should 
>be given to prison officials there?
>
>Howard Friedman
>
>From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
>on behalf of Failinger, Marie [mfailin...@hamline.edu]
>Sent: Tuesday, October 07, 2014 6:38 PM
>To: Law & Religion issues for Law Academics
>Subject: Re: Holt v. Hobbs Oral Argument
>
>I haven't read all of the background materials, but it seems to me a little 
>bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch beard 
>given what one could hide in a typical prison uniform.  If uniforms are 
>searched for contraband, why not beards?  Seems like it would be much easier 
>and safer than a uniform search, unless there is some religious ban against 
>someone touching one's beard.
>
>And what about the value encouraging state to expend a little effort and 
>creativity in meeting believers half-way by putting the state to its burden of 
>proof on its interests? In Hennepin County, the jail created an inmate 
>hijab for Muslim women that doesn't have any folds or places where contraband 
>can be hidden.   To use the argument example, why couldn't a Sikh be issued a 
>transparent turban designed to minimize the ability to hide contraband?
>
>Could Doug or someone could explain the state's argument in the lower court 
>that someone could drastically change his appearance by shaving his beard as a 
>reason for denial?  I presume that implies that

RE: Holt v. Hobbs Oral Argument

[Christopher Lund]

For those who don't know what Doug means by "caught them red-handed" (or
what Marc means by "playing fast and loose in this case"), the relevant
material can be found in pg. 46 of the respondent's brief
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the
petitioner's reply
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf).

Arkansas' concession of error can be found here,
http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
o-Pet-Rule-32.3-Request.pdf.

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)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, October 07, 2014 10:57 PM
To: Law & Religion issues for Law Academics; Marc Stern
Subject: Re: Holt v. Hobbs Oral Argument

What Marc says is clearly true.  But even in this case, when we caught
them red handed, I didn't feel like I could say to the Court that they lie
routinely. Judges have either figured that out, or they don't believe it.
And even those who have figured it out are unwilling to say it in
opinions.

On Tue, 7 Oct 2014 22:07:56 -0400
 Marc Stern  wrote:
>A simple fact of prison litigation is that prison officials lie-or simply
care little for the facts-when asserting concerns about security. When I
was a law clerk, the states routinely filed canned briefs asserting grave
and unavoidable security concerns , no matter what the reality was-and in
one memorable case in defense of a practice( labeling prisoners by race)
that the Supreme Court had even then long since condemned. One state
commissioner of corrections once told a group of us that he was aware that
prison security officials could not be relied on to fairly assess risks
and the deputy commissioner of another flatly told me she know prison
administrators routinely lied. That sort of paying fast and loose occurred
in this case,but was caught by counsel with the skill, time, commitment
and knowledge to discover the fraud on the court- luxuries pro se
litigants often don't have. And even when they do, some judges will still
invoke deference.
>
>Prisons are not like other places, and things that seem innocent and
harmless can be deadly weapons. Deference to prison officials therefore
makes much sense- but only if prison officials can be counted on to tell
the truth and deliver fair and honest assessments of risk.   Too many
don't and courts should not ratify those malign  ‎practices by blindly
deferring to prison officials. How to apply deference without judicial
abdication is the hard question in this case, not the question of how long
>‎Is too long.
>Marc‎ Stern
>Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
network.
>From: Friedman, Howard M.
>Sent: Tuesday, October 7, 2014 9:03 PM
>To: Law & Religion issues for Law Academics Reply To: Law & Religion
>issues for Law Academics
>Subject: RE: Holt v. Hobbs Oral Argument
>
>
>I think this case on its facts is likely to be easy for the Court
>because so many other states have found ways to accommodate beards.
>That being the case, I fear that the Court may not be as careful as it
>should in formulating the strict scrutiny test under RLUIPA. Broadly
>speaking, prisons have put forward two kinds of justifications for
>refusals to accomodate religious beliefs-- security concerns (as in
>this case) and budgetary issues (e.g. in claims for kosher or Halal
>diets).  It seems to me that courts are fairly able to assess budgetary
>justifications. However I fear that they are less able to assess
>security concerns as they exist on the ground.  If the court imposes
>truly strict scrutiny when security is at issue, I fear that prisons
>may be unable to adequately deal with Racist, neo-Nazi, and similar
>groups that assert they are religious organizations.  Currently a
>number of prisons are facing the question of whether Nations of Gods
>and Earths should be recognized a
 s a
>religion or classified as a security threat group.  How much deference
should be given to prison officials there?
>
>Howard Friedman
>
>From: religionlaw-boun...@lists.ucla.edu
>[religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie
>[mfailin...@hamline.edu]
>Sent: Tuesday, October 07, 2014 6:38 PM
>To: Law & Religion issues for Law Academics
>Subject

RE: Holt v. Hobbs Oral Argument

[Christopher Lund]

None of those links work.  Stupid email formatting.

Try these.

http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
iew/BriefsV4/13-6827_resp.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
iew/BriefsV4/13-6827_pet_reply.authcheckdam.pdf

http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
o-Pet-Rule-32.3-Request.pdf


-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, October 07, 2014 11:16 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Holt v. Hobbs Oral Argument

For those who don't know what Doug means by "caught them red-handed" (or
what Marc means by "playing fast and loose in this case"), the relevant
material can be found in pg. 46 of the respondent's brief
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the
petitioner's reply
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf).

Arkansas' concession of error can be found here,
http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
o-Pet-Rule-32.3-Request.pdf.

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)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, October 07, 2014 10:57 PM
To: Law & Religion issues for Law Academics; Marc Stern
Subject: Re: Holt v. Hobbs Oral Argument

What Marc says is clearly true.  But even in this case, when we caught
them red handed, I didn't feel like I could say to the Court that they lie
routinely. Judges have either figured that out, or they don't believe it.
And even those who have figured it out are unwilling to say it in
opinions.

On Tue, 7 Oct 2014 22:07:56 -0400
 Marc Stern  wrote:
>A simple fact of prison litigation is that prison officials lie-or
>simply
care little for the facts-when asserting concerns about security. When I
was a law clerk, the states routinely filed canned briefs asserting grave
and unavoidable security concerns , no matter what the reality was-and in
one memorable case in defense of a practice( labeling prisoners by race)
that the Supreme Court had even then long since condemned. One state
commissioner of corrections once told a group of us that he was aware that
prison security officials could not be relied on to fairly assess risks
and the deputy commissioner of another flatly told me she know prison
administrators routinely lied. That sort of paying fast and loose occurred
in this case,but was caught by counsel with the skill, time, commitment
and knowledge to discover the fraud on the court- luxuries pro se
litigants often don't have. And even when they do, some judges will still
invoke deference.
>
>Prisons are not like other places, and things that seem innocent and
harmless can be deadly weapons. Deference to prison officials therefore
makes much sense- but only if prison officials can be counted on to tell
the truth and deliver fair and honest assessments of risk.   Too many
don't and courts should not ratify those malign  ‎practices by blindly
deferring to prison officials. How to apply deference without judicial
abdication is the hard question in this case, not the question of how long
>‎Is too long.
>Marc‎ Stern
>Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
network.
>From: Friedman, Howard M.
>Sent: Tuesday, October 7, 2014 9:03 PM
>To: Law & Religion issues for Law Academics Reply To: Law & Religion
>issues for Law Academics
>Subject: RE: Holt v. Hobbs Oral Argument
>
>
>I think this case on its facts is likely to be easy for the Court
>because so many other states have found ways to accommodate beards.
>That being the case, I fear that the Court may not be as careful as it
>should in formulating the strict scrutiny test under RLUIPA. Broadly
>speaking, prisons have put forward two kinds of justifications for
>refusals to accomodate religious beliefs-- security concerns (as in
>this case) and budgetary issues (e.g. in claims for kosher or Halal
>diets).  It seems to me that courts are fairly able to assess budgetary
>justifications. However I fear that they are less able to assess
>security concerns as they exist on the ground.  If the court imposes
>truly strict scrutiny when security is at issue, I fea

Re: Holt v. Hobbs Oral Argument

[matt steffey]

chris,

i hope you're well. damn technology indeed. i just wanted to say hello and 
observe that i can't recall seeing something quite like arkansas "letter 
withdrawing false statement" before. given they don't make policy, i almost 
felt sorry for the arkansas assistant a.g. who had to argue this dog of a case.

i hope all is well with you and yours.


matt
On Oct 7, 2014, at 10:21 PM, Christopher Lund  wrote:

> None of those links work.  Stupid email formatting.
> 
> Try these.
> 
> http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
> iew/BriefsV4/13-6827_resp.authcheckdam.pdf
> 
> http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
> iew/BriefsV4/13-6827_pet_reply.authcheckdam.pdf
> 
> http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
> o-Pet-Rule-32.3-Request.pdf
> 
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
> Sent: Tuesday, October 07, 2014 11:16 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Holt v. Hobbs Oral Argument
> 
> For those who don't know what Doug means by "caught them red-handed" (or
> what Marc means by "playing fast and loose in this case"), the relevant
> material can be found in pg. 46 of the respondent's brief
> (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
> view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the
> petitioner's reply
> (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
> view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf).
> 
> Arkansas' concession of error can be found here,
> http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
> o-Pet-Rule-32.3-Request.pdf.
> 
> 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)
> (313) 577-9016 (fax)
> Website—http://law.wayne.edu/profile/christopher.lund/
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> Sent: Tuesday, October 07, 2014 10:57 PM
> To: Law & Religion issues for Law Academics; Marc Stern
> Subject: Re: Holt v. Hobbs Oral Argument
> 
> What Marc says is clearly true.  But even in this case, when we caught
> them red handed, I didn't feel like I could say to the Court that they lie
> routinely. Judges have either figured that out, or they don't believe it.
> And even those who have figured it out are unwilling to say it in
> opinions.
> 
> On Tue, 7 Oct 2014 22:07:56 -0400
> Marc Stern  wrote:
>> A simple fact of prison litigation is that prison officials lie-or
>> simply
> care little for the facts-when asserting concerns about security. When I
> was a law clerk, the states routinely filed canned briefs asserting grave
> and unavoidable security concerns , no matter what the reality was-and in
> one memorable case in defense of a practice( labeling prisoners by race)
> that the Supreme Court had even then long since condemned. One state
> commissioner of corrections once told a group of us that he was aware that
> prison security officials could not be relied on to fairly assess risks
> and the deputy commissioner of another flatly told me she know prison
> administrators routinely lied. That sort of paying fast and loose occurred
> in this case,but was caught by counsel with the skill, time, commitment
> and knowledge to discover the fraud on the court- luxuries pro se
> litigants often don't have. And even when they do, some judges will still
> invoke deference.
>> 
>> Prisons are not like other places, and things that seem innocent and
> harmless can be deadly weapons. Deference to prison officials therefore
> makes much sense- but only if prison officials can be counted on to tell
> the truth and deliver fair and honest assessments of risk.   Too many
> don't and courts should not ratify those malign  ‎practices by blindly
> deferring to prison officials. How to apply deference without judicial
> abdication is the hard question in this case, not the question of how long
>> ‎Is too long.
>> Marc‎ Stern
>> Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
> network.
>> From: Friedman, Howard M.
>> Sent: Tuesday, October 7, 2014 9:03 PM
>> To: Law & Religion issues for 

RE: Holt v. Hobbs Oral Argument

[Douglas Laycock]

I got relatively few questions, and more time to talk, than I have ever
experienced. Maybe my toughest question was Roberts complaining that we had
made the case too easy and Scalia suggesting that maybe they should dig it.
And of course a fair number of questions about how to reconcile deference
with compelling interest and least restrictive means.  That is a genuine
puzzle.

 

David Curran for Arkansas got roughed up. Alito’s last two questions were
openly making fun of the state’s position. Why don’t you give the guards a
comb – design it however you want – and they can make the prisoner comb out
his beard and see if a SIM card or a tiny revolver falls out? Curran said
that could work!

 

He all but abandoned their arguments below, and even in the brief, and tried
to construct a new argument about how a prisoner in one barracks could shave
his beard in the morning, go out to work in the fields, trade ID and uniform
with another prisoner who looked a little bit the same, and get into a
different barracks to attack one of his enemies. He tried to claim it was
alluded to in the record, with citations to specific page numbers. If the
references are there, they are the barest allusions; I couldn’t find his
first one, looking quickly at counsel table. Alito made fun of the switched
identity argument too.,

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of matt steffey
Sent: Tuesday, October 07, 2014 11:42 PM
To: Law & Religion issues for Law Academics
Subject: Re: Holt v. Hobbs Oral Argument

 

chris,

 

i hope you're well. damn technology indeed. i just wanted to say hello and
observe that i can't recall seeing something quite like arkansas "letter
withdrawing false statement" before. given they don't make policy, i almost
felt sorry for the arkansas assistant a.g. who had to argue this dog of a
case.

 

i hope all is well with you and yours.

 

 

matt

On Oct 7, 2014, at 10:21 PM, Christopher Lund mailto:l...@wayne.edu> > wrote:





None of those links work.  Stupid email formatting.

Try these.

http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
iew/BriefsV4/13-6827_resp.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
iew/BriefsV4/13-6827_pet_reply.authcheckdam.pdf

http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
o-Pet-Rule-32.3-Request.pdf


-Original Message-
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, October 07, 2014 11:16 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Holt v. Hobbs Oral Argument

For those who don't know what Doug means by "caught them red-handed" (or
what Marc means by "playing fast and loose in this case"), the relevant
material can be found in pg. 46 of the respondent's brief
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the
petitioner's reply
(http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf).

Arkansas' concession of error can be found here,
http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
o-Pet-Rule-32.3-Request.pdf.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu <mailto:l...@wayne.edu> 
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, October 07, 2014 10:57 PM
To: Law & Religion issues for Law Academics; Marc Stern
Subject: Re: Holt v. Hobbs Oral Argument

What Marc says is clearly true.  But even in this case, when we caught
them red handed, I didn't feel like I could say to the Court that they lie
routinely. Judges have either figured that out, or they don't believe it.
And even those who have figured it out are unwilling to say it in
opinions.

On Tue, 7 Oct 2014 22:07:56 -0400
Marc Stern mailto:ste...@ajc.org> > wrote:



A simple fact of prison litigation is that prison officials lie-or
simply

care little for the facts-when asserting concerns about security. When I
was a law clerk, the states routinely filed canned briefs asserting grave
and unavoi

Re: Holt v. Hobbs Oral Argument

[Steven Jamar]

On Oct 8, 2014, at 9:08 AM, Douglas Laycock  wrote:

> And of course a fair number of questions about how to reconcile deference 
> with compelling interest and least restrictive means.  That is a genuine 
> puzzle.

 I’m shocked that anyone could have trouble with this after Kennedy 
cleared it all up in Fisher!  Shocked! I say. Shocked! 

More seriously, thanks for the report, Doug.  About 5 of my Con Law students 
were there for the argument yesterday and l look forward to hearing their takes 
on it in class tomorrow.

Steve



Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://sdjlaw.org

"If you want to bake an apple pie from scratch, you must first invent the 
universe.”  
Carl Sagan




___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Holt v. Hobbs Oral Argument - the comb

[mksabel]

<<< text/html; charset=UTF-8: Unrecognized >>>
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: Holt v. Hobbs Oral Argument - the comb

[Failinger, Marie]

I personally would like to know whose next article is going to be entitled,
"Teeny Tiny Security Risks."  That, to me, is a classic exchange that
should never be forgotten:)

On Wed, Oct 8, 2014 at 3:37 PM,  wrote:

>
> Hi- i'm not sure if this is needed, but just a clarifying note that
> Jusrice Alito's reference to a comb was serious; his mocking of the state
> was his suggestion that a revolver might fall out of a beard, when combed.
> But, as Doug said, Arkansas agreed when pressed that use of a small comb
> could provide a workable means to deter and detect contraband, though as
> the transcript reflects, with different language that i'm not looking at
> right now.
>
> best,
>
> Mark Sabel
>
> -Original Message-
> From: Douglas Laycock
> Sent: Oct 8, 2014 8:08 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Holt v. Hobbs Oral Argument
>
> I got relatively few questions, and more time to talk, than I have ever
> experienced. Maybe my toughest question was Roberts complaining that we had
> made the case too easy and Scalia suggesting that maybe they should dig it.
> And of course a fair number of questions about how to reconcile deference
> with compelling interest and least restrictive means. That is a genuine
> puzzle.
>
>
>
> David Curran for Arkansas got roughed up. Alito’s last two questions were
> openly making fun of the state’s position. Why don’t you give the guards a
> comb – design it however you want – and they can make the prisoner comb out
> his beard and see if a SIM card or a tiny revolver falls out? Curran said
> that could work!
>
>
>
> He all but abandoned their arguments below, and even in the brief, and
> tried
> to construct a new argument about how a prisoner in one barracks could
> shave
> his beard in the morning, go out to work in the fields, trade ID and
> uniform
> with another prisoner who looked a little bit the same, and get into a
> different barracks to attack one of his enemies. He tried to claim it was
> alluded to in the record, with citations to specific page numbers. If the
> references are there, they are the barest allusions; I couldn’t find his
> first one, looking quickly at counsel table. Alito made fun of the switched
> identity argument too.,
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of matt steffey
> Sent: Tuesday, October 07, 2014 11:42 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Holt v. Hobbs Oral Argument
>
>
>
> chris,
>
>
>
> i hope you're well. damn technology indeed. i just wanted to say hello and
> observe that i can't recall seeing something quite like arkansas "letter
> withdrawing false statement" before. given they don't make policy, i almost
> felt sorry for the arkansas assistant a.g. who had to argue this dog of a
> case.
>
>
>
> i hope all is well with you and yours.
>
>
>
>
>
> matt
>
> On Oct 7, 2014, at 10:21 PM, Christopher Lund  > wrote:
>
>
>
>
>
> None of those links work. Stupid email formatting.
>
> Try these.
>
> http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
> iew/BriefsV4/13-6827_resp.authcheckdam.pdf
>
> http://www.americanbar.org/content/dam/aba/publications/supreme_court_prev
> iew/BriefsV4/13-6827_pet_reply.authcheckdam.pdf
>
> http://www.becketfund.org/wp-content/uploads/2014/08/No-13-6827-Response-t
> o-Pet-Rule-32.3-Request.pdf
>
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
>
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
> Sent: Tuesday, October 07, 2014 11:16 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Holt v. Hobbs Oral Argument
>
> For those who don't know what Doug means by "caught them red-handed" (or
> what Marc means by "playing fast and loose in this case"), the relevant
> material can be found in pg. 46 of the respondent's brief
> (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
> view/BriefsV4/13-6827_resp.authcheckdam.pdf) and pg. 14-15 of the
> petitioner's reply
> (http://www.americanbar.org/content/dam/aba/publications/supreme_court_pre
> view/BriefsV4/13-6827_pet_reply.authcheckdam.pdf).
>
> Arkansas' concession of error can be found here,
> http://www.becketfund.org/wp-