Here's a radical suggestion: Let's look at what has actually occurred in the Rasul v. Rumsfeld case.
The court's decision was a rejection of the government's motion to dismiss the RFRA claim. As far as I can tell, the government did not argue that the plaintiffs' allegations failed to establish a substantial burden on religious exercise. Instead, their principal (fairly outrageous) arguments were (i) that RFRA does not have extraterritorial application; and (ii) that RFRA only protects against burdens imposed by generally applicable laws, and not against conduct, as alleged here, that singles out religion for disfavored treatment. (Isn't that a rich argument?: We actually singled out religious adherents for disfavored treatment, directly because of their religion; ergo, our motion to dismiss should be granted.) DOJ also argued that, in any event, the law wasn't clear on these points, and thus the defendants were entitled to qualified immunity.
The court (in my view properly) rejected these grounds for dismissal. In so doing, the court addressed the question of substantial burden, even though I don't think it had been briefed. The two sentences in question in the opinion that have caused some on this list such consternation are the following:
Regarding the substantial burden prong, the plaintiffs allege, among other things, that the defendants harassed the plaintiffs in the practice of their religion, subjected them to forced shaving of their religious beards, and placed the Koran in the toilet. Compl. ¶¶ 58, 78, 206. Flushing the Koran down the toilet and forcing Muslims to shave their beards falls comfortably within the conduct prohibited from government action by RFRA. Jackson v. Dist. of Columbia, 254 F.3d 262, 265 (D.C.Cir.2001) (identifying the RFRA concerns inherent in claims of grooming policies); Diaz v. Collins, 114 F.3d 69, 72-73 (5th Cir.1997) (ruling that a grooming policy imposes a substantial hardship on the practice of faith).
I don't think it is fair to read the court's opinion as holding that when the government flushes someone's scripture down the toilet, it has substantially burdened religious exercise, even when a replacement volume is provided. Obviously, the court was not asked to opine on any such silly theory. What the plaintiffs alleged was a pattern of conduct aimed directly at plaintiffs' religion and religious exercise that, cumulatively, imposed a substantial burden on the plaintiffs' religious exercise.
Here are the relevant paragraphs from the RFRA claim in the complaint:
204. Defendants actions imposed a substantial burden on Plaintiffs abilities to exercise and express their religious beliefs.
205. Defendants regularly and systematically engaged in practices specifically aimed at disrupting Plaintiffs religious practices. These acts included throwing a copy of the Koran in a toilet bucket, prohibiting prayer, deliberately interrupting prayers, playing loud rock music to interrupt prayers, withholding the Koran without reason or as punishment, forcing prisoners to pray with exposed genital areas, withholding prayer mats and confining Plaintiffs under conditions where it was impossible or infeasible for them to exercise their religious rights.
And here is the most relevant passage from plaintiffs'' brief:
Plaintiffs claims in the instant case are largely based on neutral or generally applicable rules that adversely affected their exercise of religion. For instance, plaintiffs allege that defendants, as a matter of policy, withheld religious objects from detainees at Guantánamo. Compl. ¶ 78. The withholding of such objects particularly burdens Muslims whose religious practices require them. In addition, defendants enforced schedules and conditions for detainees that particularly interfered with Muslim times of prayer and calls to prayer. Compl. ¶ 94. Shaving prisoners beards, though nominally neutral, substantially burdens Muslim men whose religion requires adult men to wear beards. Defendants also precluded communication between prisoners, Compl. ¶ 78, which restricted Muslim prayers and the call to prayer.
Plainly, the allegations are that the U.S. military engaged in a series of actions that had a substantial burden on religious exercise -- beginning, of course, with detention at GTMO itself, which obviously had a profound impact on the plaintiffs' religious exercise, more than sufficient to state a RFRA claim. The case is not about a single, isolated instance of religious denigration.
Incidentally -- if you'll indulge me a rant -- the conduct in question, a concerted effort to denigrate Muslims' religion and to use blasphemy and religious humiliation as a tool of state policy, is shameful, and it ought to oturage everyone on this list; but it has instead been met with a deafening silence among many who are otherwise so quick to criticize any state action that is hostile to religion. Rick Garnett has been a welcome and eloquent exception -- see, e.g., http://www.mirrorofjustice.com/mirrorofjustice/2005/01/questions_on_th.html and http://www.mirrorofjustice.com/mirrorofjustice/2005/01/more_on_interro.html -- but otherwise, I think one of the most disturbing aspects of the torture scandal has been the relative silence of organized churches in this country and of putative defenders of religious freedom. You would think there'd be a huge outcry from the religious and religious-freedom communities, not only about the use of torture and cruel and degrading treatment generally, but about the specific practice of religious denigration; but as far as I know, that hasn't been the case. Not as important and as interesting an issue, I suppose, as whether flushing a prisoner's a Koran down the toilet substantially burdens religious exercise.
parts:
(1) Is it a substantial burden if the guard destroys the only
available copy of the Koran (whether it's done in front of the prisoner
or not)?
(2) Is it a substantial burden if the guard deliberately
emotionally distresses a prisoner by doing something the prisoner sees
as blasphemous in front of him?
(3) Is it somehow unconstitutional -- though it's hard for me
to see a standard "substantial burden" argument here -- to coerce a
prisoner through the threat of blasphemous conduct (i.e., the threat of
#2 rather than the threat of #1)? And, if so, as a factual matter would
Moslem prisoners really feel coerced -- as opposed to just emotionally
distressed -- by the combination of the conduct and his religious
beliefs? For the coercion analysis, I take it that much would depend
whether the prisoners feel an obligation to try to do something to stop
this act of blasphemy, or are just upset by it. (By way of analogy, I
suppose that many Christians would be upset by someone's reviling Jesus
in front of them, but wouldn't feel coerced by a demand that "Do what I
want you to, or I'll revile Jesus.")
Eugene
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