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 l...@wayne.edu 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 ste...@ajc.org 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 unavoidable security concerns , no matter what the reality was-and in one memorable case in defense of a practice( labeling
Re: Holt v. Hobbs Oral Argument
On Oct 8, 2014, at 9:08 AM, Douglas Laycock dlayc...@virginia.edu 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. sarcasm I’m shocked that anyone could have trouble with this after Kennedy cleared it all up in Fisher! Shocked! I say. Shocked! /sarcasm 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 ___ 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.
RE: Holt v. Hobbs Oral Argument - the comb
text/html; charset=UTF-8: Unrecognized ___ 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.
Re: Holt v. Hobbs Oral Argument - the comb
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, mksa...@mindspring.com 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-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
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.edumailto: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.
RE: Holt v. Hobbs Oral Argument
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.edumailto: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.edumailto: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.
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. 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 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) ___ 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.
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 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. tcb...@stthomas.edumailto: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 4918tel:651%20962%204918 Fax: 651 962 4881tel:651%20962%204881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http
Re: Holt v. Hobbs Oral Argument
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 would have to be a complete pacifist, observe glatt kosher (and no elevators on Shabbat) or go to church
Re: Holt v. Hobbs Oral Argument
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 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 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
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 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 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 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
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 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 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
RE: Holt v. Hobbs Oral Argument
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 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 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
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 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] 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 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 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
