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

[Marty Lederman]

Oh, I'm sure that Sterling would attest that posting the signs fit into her
"system" of religious practice.  I'm even willing to assume she could have
easily demonstrated that the scriptural "reminders" were very important to
her, at least in the sense that they gave her peace of mind or lowered her
anxiety.  But if there were a million other ways she might have, just as
effectively, "reminded" herself of the religious message, can it really be
the case that prohibiting posting of the large-font signs in a way visible
to others *significantly *burdened her religious exercise?

On Mon, Feb 20, 2017 at 3:18 PM, Marc DeGirolami <
marc.degirol...@stjohns.edu> wrote:

> For whatever it’s worth, I have argued recently that the substantial
> burden inquiry should be governed by something like a requirement that the
> claimant come forward with some evidence to explain how the religious
> exercise fits into a “system” of religious belief and practice. That
> showing would and should, in my view, be evaluated generously toward the
> claimant. But it would be something. Even the text of RLUIPA, while
> ostensibly disclaiming centrality inquiry, itself speaks in terms of a
> “system of religious belief.”
>
> https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2791527
>
>
>
> From: Marty Lederman 
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Monday, February 20, 2017 at 3:05 PM
> To: Marty Lederman 
> Cc: Law & Religion issues for Law Academics 
> Subject: Re-upping: Sterling: A helpful test case on RFRA burdens
>
> 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 

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

[Laycock, H Douglas (hdl5c)]

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 
Cc: Law & Religion issues for Law Academics 
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

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 

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

[Marty Lederman]

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 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 

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

[Marc DeGirolami]

For whatever it’s worth, I have argued recently that the substantial burden 
inquiry should be governed by something like a requirement that the claimant 
come forward with some evidence to explain how the religious exercise fits into 
a “system” of religious belief and practice. That showing would and should, in 
my view, be evaluated generously toward the claimant. But it would be 
something. Even the text of RLUIPA, while ostensibly disclaiming centrality 
inquiry, itself speaks in terms of a “system of religious belief.”

https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2791527


From: Marty Lederman 
>
Reply-To: Law & Religion issues for Law Academics 
>
Date: Monday, February 20, 2017 at 3:05 PM
To: Marty Lederman >
Cc: Law & Religion issues for Law Academics 
>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

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?  

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

[Michael A Helfand]

For those interested in this issue, the Illinois Law Review Online put
together a symposium of short articles on the substantial burden question,
including short essays from:

Liz Sepper (
https://illinoislawreview.org/online/2016/substantial-burdens/substantiating-the-burdens-of-compliance/
)
Amy Sepinwall (
https://illinoislawreview.org/online/2016/substantial-burdens/burdening-substantial-burdens/
)
Abner Greene (
https://illinoislawreview.org/online/2016/substantial-burdens/a-secular-test-for-a-secular-statute/
)
Chad Flanders (
https://illinoislawreview.org/online/2016/substantial-burdens/substantial-confusion-about-substantial-burdens/
)
Marc Degirolami (
https://illinoislawreview.org/online/2016/substantial-burdens/substantial-burdens-imply-central-beliefs/
)
Caroline Mala Corbin (
https://illinoislawreview.org/online/2016/substantial-burdens/deference-to-claims-of-substantial-religious-burden/
)
Me (
https://illinoislawreview.org/online/2016/substantial-burdens/the-substantial-burden-puzzle/
)


Michael A. Helfand
Associate Professor, Pepperdine University School of Law
Associate Director, Pepperdine University Glazer Institute for Jewish
Studies
24255 Pacific Coast Highway
Malibu, CA 90263
(310) 506-7694
SSRN: http://ssrn.com/author=760898
Twitter: http://twitter.com/mahelfand

On Mon, Feb 20, 2017 at 12:37 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 
> *Cc:* Law & Religion issues for Law Academics 
> *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> 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 

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

[Marty Lederman]

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 
> *Cc:* Law & Religion issues for Law Academics 
> *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> 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
> 

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

[Laycock, H Douglas (hdl5c)]

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA's supporters overreach on some issues does not 
change the fact that RFRA's opponents are overreaching on other issues.

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 Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics ; Marty 
Lederman 
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


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 
> 
on behalf of Laycock, H Douglas (hdl5c) 
>
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 >
Cc: Law & Religion issues for Law Academics 
>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

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 

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

[Eric J Segall]

That's fair Doug.

e

Sent from my iPhone

On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA’s supporters overreach on some issues does not 
change the fact that RFRA’s opponents are overreaching on other issues.

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 Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics 
>; Marty Lederman 
>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


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 
> 
on behalf of Laycock, H Douglas (hdl5c) 
>
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 >
Cc: Law & Religion issues for Law Academics 
>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

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 

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

[Alan E Brownstein]

Three quick thoughts.


1. It would be helpful at least as a first step to limit the passages in Hobby 
Lobby about substantial burden to which Doug refers to claims where the 
government requires religious individuals or institutions to so some thing that 
their religion prohibits (often complicity claims). I think one can reasonably 
argue that the Court's review of substantial burden need not be so deferential 
to the religious claimant in cases like this one -- where the claimant is 
arguing that the government is burdening her ability to do something that her 
religion requires or motivates her to do.


2. Marty's point is well taken. If a person's religion allows for alternative 
ways to satisfy obligations -- that is, there are alternative avenues for 
religious exercise that satisfy the requirement's of one's faith -- then there 
is a strong argument that the claimant's religious exercise is not being 
substantially burdened if only one of those alternatives is restricted. The 
problem is that a claimant may argue that his or her idiosyncratic beliefs may 
not recognize such alternatives as being even minimally acceptable. Court's 
could of course also try to argue that as a secular matter alternative ways of 
satisfying a religious requirement are equivalent to each other so that 
burdening one alternative is not substantial because the other remains 
available. My concern here is that religious mandates often involve ritual acts 
and I am not sure that the courts should be deciding that two arguably similar 
acts have equivalent ritual significance. That does not seem to be a problem in 
the case we are discussing, however.


3. if the reason for the signs being taken down is a rule that the military 
does not allow any signs containing personal messages visible to others in a 
work station, or some other general speech restriction, isn't it clear that a 
RFRA ruling in favor of the claimant in this case would violate the Free Speech 
Clause of the First Amendment? Requiring the government to satisfy a more 
rigorous standard of review to regulate religious speech than it must satisfy 
to regulate non-religious speech would be viewpoint discrimination in favor of 
religious speech which is subject to strict scrutiny review and presumptively 
unconstitutional.


Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Eric J Segall 
Sent: Monday, February 20, 2017 1:11:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

That's fair Doug.

e

Sent from my iPhone

On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA’s supporters overreach on some issues does not 
change the fact that RFRA’s opponents are overreaching on other issues.

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 Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics 
>; Marty Lederman 
>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


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 
> 
on behalf of Laycock, H Douglas (hdl5c) 
>
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 

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

[Marty Lederman]

Thanks, Alan.   Yes, as I mentioned in my first post on the case last
summer, the USG would definitely win under RFRA, anyway, because avoiding a
Free Speech violation would surely be a compelling interest for denying the
exemption.  Another reason the Court should deny cert.  It shouldn't even
be necessary to reach the compelling interest, though.

On Mon, Feb 20, 2017 at 5:16 PM, Alan E Brownstein  wrote:

> Three quick thoughts.
>
>
> 1. It would be helpful at least as a first step to limit the passages in
> Hobby Lobby about substantial burden to which Doug refers to claims where
> the government requires religious individuals or institutions to so some
> thing that their religion prohibits (often complicity claims). I think one
> can reasonably argue that the Court's review of substantial burden need not
> be so deferential to the religious claimant in cases like this one -- where
> the claimant is arguing that the government is burdening her ability to do
> something that her religion requires or motivates her to do.
>
>
> 2. Marty's point is well taken. If a person's religion allows for
> alternative ways to satisfy obligations -- that is, there are alternative
> avenues for religious exercise that satisfy the requirement's of one's
> faith -- then there is a strong argument that the claimant's religious
> exercise is not being substantially burdened if only one of those
> alternatives is restricted. The problem is that a claimant may argue that
> his or her idiosyncratic beliefs may not recognize such alternatives as
> being even minimally acceptable. Court's could of course also try to argue
> that as a secular matter alternative ways of satisfying a religious
> requirement are equivalent to each other so that burdening one alternative
> is not substantial because the other remains available. My concern here is
> that religious mandates often involve ritual acts and I am not sure that
> the courts should be deciding that two arguably similar acts have
> equivalent ritual significance. That does not seem to be a problem in the
> case we are discussing, however.
>
>
> 3. if the reason for the signs being taken down is a rule that the
> military does not allow any signs containing personal messages visible to
> others in a work station, or some other general speech restriction, isn't
> it clear that a RFRA ruling in favor of the claimant in this case would
> violate the Free Speech Clause of the First Amendment? Requiring the
> government to satisfy a more rigorous standard of review to regulate
> religious speech than it must satisfy to regulate non-religious speech
> would be viewpoint discrimination in favor of religious speech which is
> subject to strict scrutiny review and presumptively unconstitutional.
>
>
> Alan Brownstein
> --
> *From:* religionlaw-boun...@lists.ucla.edu  ucla.edu> on behalf of Eric J Segall 
> *Sent:* Monday, February 20, 2017 1:11:50 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens
>
> That's fair Doug.
>
> e
>
> Sent from my iPhone
>
> On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> Well, the widespread hostility to enforcing RFRA *is* a threat to
> religious liberty. Just because RFRA’s supporters overreach on some issues
> does not change the fact that RFRA’s opponents are overreaching on other
> issues.
>
>
>
> 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 *Eric
> J Segall
> *Sent:* Monday, February 20, 2017 3:47 PM
> *To:* Law & Religion issues for Law Academics ;
> Marty Lederman 
> *Subject:* Re: Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> 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  ucla.edu> on behalf of Laycock, H Douglas (hdl5c) 
> *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 

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

[Eric J Segall]

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  
on behalf of Laycock, H Douglas (hdl5c) 
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 
Cc: Law & Religion issues for Law Academics 
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

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