Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[James Oleske]

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
> .
> Case schedule for Conference on 05/18.
>
> On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman  georgetown.edu> wrote:
>
>> Now that Paul Clement has filed a cert. petition
>> 
>> 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

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[David Cruz]

Okay, I’ll bite.  I don’t have firm views yet on this.  My questions below all 
go to the “front end” of the analysis.  And I get the distinction between a 
court’s engaging in its own (God’s-eye?) analysis of whether a practice is 
important to a religion simpliciter/in the abstract and a court’s asking 
whether a RFRA claimant herself regards an exercise of religion as important to 
her.

Question 1: What is the (semantic? logical?) relationship, if any, to an 
action’s being important to a person and its being an exercise of religion?  
Perhaps that’s not where “importance” fits in the RFRA analysis, so I’ll ask 
further questions.

Question 2: Wouldn’t any religiously motivated action, and not just religiously 
motivated actions meeting various thresholds (e.g., central, mandated) be an 
“exercise of religion” under RFRA?

Question 3: RFRA is triggered by “substantial” burden’s on a person’s exercise 
of religion.  In the abstract I could see an argument that if there’s some 
religiously motivated action a person is barred from engaging in, but that 
action isn’t really important to her as a matter of religious belief, then 
given all the religiously motivated things she could still do, there’s no 
“substantial” burden on her exercise of religion-as-a-whole.  However, RLUIPA 
defines “exercise of religion” to include “any exercise of religion …” 
(emphasis added) not just “important exercises of religion.”  So this can’t be 
the significance of the importance of a particular exercise, right?  (As I ask, 
I’m reminded of Scalia’s “throwing rice at a wedding” contention from Smith.)

Question 4: Sterling wasn’t allowed to post her signs in the workplace.  She 
could presumably have kept a note in her drawer, worn an engraved bracelet, 
emblazoned it across her dashboard if she had a car, ….  Is the lack of 
demonstrated importance of posting legible-to-other signs in her work area 
somehow enough in light of these other places she could post her message enough 
to convert a complete prohibition of engaging in a religiously motivated 
practice (where she sought to) to be less than a “substantial” burden?

Question 5a: Or am I wrong on the facts to characterize her action as 
“religiously motivated,” rather than just having “religious significance”?  
Question 5b: If so, what is the distinction, exactly, and to what text of RFRA 
should it matter?


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From:  on behalf of Marty Lederman 

Reply-To: Law & Religion issues for Law Academics 
Date: Friday, May 5, 2017 at 8:20 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Paul Clement's reply 
brief.
  Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
> 
wrote:
Now that Paul Clement has filed a cert. 
petition
 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.  [snip]

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Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Paul Clement's reply brief
.
Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> 
> 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  > 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