Beautifully said Doug. I would just add that the kind of potential abuse you 
are talking about is maybe inevitable when this kind of law becomes part of the 
culture wars, and RFRA certainly has become that. Even Justice Alito has given 
speeches saying the potential non-enforcement of RFRA has become a threat to 
"religious liberty."


Best,


Eric

________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Sent: Monday, February 20, 2017 3:37:26 PM
To: Law & Religion issues for Law Academics; Marty Lederman
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf&data=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699&sdata=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D&reserved=0>
 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<mailto: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<mailto: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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Freligionclause.blogspot.com%2F2016%2F08%2Farmed-forces-court-of-appeals.html&data=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636232199144615699&sdata=ZnCULd7zaUjDQVa0U6k0%2FA0V3tI%2FvMpJnggjI86gSkQ%3D&reserved=0>

Howard Friedman

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