As Doug knows, I agree with much of what he writes here, particularly about how such claims will, in the long-run, discredit the project of religious accommodation.
I'd only take issue with his assumption that this case might only be an example of negligent lawyering. After all, all of us remind ourselves, every single day, of countless things that are important to us--some of which are religiously inspired, others not. If we were instructed by our employers not to post such reminders in 28-point-type in our work spaces, where bystanders can see them, I doubt any of us would feel as if that were a material, let alone a substantial, burden on our ability to remind ourselves about what is important to us. The claim here, in other words, appears to be completely implausible, *unless *one accepts the apparent view of the cert. petition that even the most trivial limitation on religiously motivated behavior is a "substantial burden" if it takes the form of a prohibition. That can't be what Congress-or any rational legislature--would have intended. On Mon, Feb 20, 2017 at 3:37 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. > > > > >
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