For those interested in this issue, the Illinois Law Review Online put together a symposium of short articles on the substantial burden question, including short essays from:
Liz Sepper ( https://illinoislawreview.org/online/2016/substantial-burdens/substantiating-the-burdens-of-compliance/ ) Amy Sepinwall ( https://illinoislawreview.org/online/2016/substantial-burdens/burdening-substantial-burdens/ ) Abner Greene ( https://illinoislawreview.org/online/2016/substantial-burdens/a-secular-test-for-a-secular-statute/ ) Chad Flanders ( https://illinoislawreview.org/online/2016/substantial-burdens/substantial-confusion-about-substantial-burdens/ ) Marc Degirolami ( https://illinoislawreview.org/online/2016/substantial-burdens/substantial-burdens-imply-central-beliefs/ ) Caroline Mala Corbin ( https://illinoislawreview.org/online/2016/substantial-burdens/deference-to-claims-of-substantial-religious-burden/ ) Me ( https://illinoislawreview.org/online/2016/substantial-burdens/the-substantial-burden-puzzle/ ) Michael A. Helfand Associate Professor, Pepperdine University School of Law Associate Director, Pepperdine University Glazer Institute for Jewish Studies 24255 Pacific Coast Highway Malibu, CA 90263 (310) 506-7694 SSRN: http://ssrn.com/author=760898 Twitter: http://twitter.com/mahelfand On Mon, Feb 20, 2017 at 12:37 PM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > This case may well be a trial lawyer’s failure to put on the evidence. > Lawyers too often think the burden on religious practice is obvious, and > fail to elicit the testimony that would clearly explain how and why the > practice is religious and important and the challenged rule is a > substantial burden. I suspect that more could have been offered here, but > we don’t know that, and the record is what it is. > > > > Passages in the Court’s opinion in *Hobby Lobby* invite the kind of > argument that Paul is making. But reading those passages for their maximum > possible reach would be wholly unworkable, which is why seven of eight > circuits refused to read it that way in the litigation that led to *Zubik*. > The cryptic order in *Zubik* implies a four-four split, which in turn > implies that four Justices were prepared to find a substantial burden > there. I think that would have been a mistake, but the claimed burden > there, however attenuated, at least connected to an important religious > teaching. Far more implausible and attenuated claims will follow, in which > religious claimants seek to govern the world by insisting that the way the > world is currently being run burdens their religion, and no one can > question their claim of burden. These kinds of claims will discredit the > whole enterprise, which faces enough hostility already. > > > > > > > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Monday, February 20, 2017 3:07 PM > *To:* Marty Lederman <lederman.ma...@gmail.com> > *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens > > > > 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-court-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. > > > > > > _______________________________________________ > 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. >
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