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

[James Oleske]

The petitioner's briefing at the cert stage of this case has been
profoundly discouraging.

Although the case does raise a genuinely interesting question that may be
worthy of Supreme Court review -- must a RFRA plaintiff show "an honest
belief that the practice is important to his free exercise of religion" --
the original cert petition completely ignored the CAAF's "honest
belief/important" language in an effort to portray the case as implicating
a circuit split over whether the religious practice at issue must be
"religiously compelled."

Then, after the federal government pointed out this mischaracterization and
the petitioner was forced to acknowledge the CAAF's "honest
belief/important" language in its reply, the petitioner continued to insist
the CAAF was on the wrong side of a circuit split without acknowledging
that the two circuits that have used the same "honest belief/important"
test as the CAAF (5th and 10th) are circuits petitioner claims are on the
right side of the split. *See *Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316
(10th Cir. 2010) ("The practice burdened need not be central to the
adherent's belief system, but the adherent must have an honest belief that
the practice is important to his free exercise of religion.") (quoting Sossamon
v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir. 2009)).

Although the reader would never know it from the petitioner's argument,
 the CAAF decision was explicitly rooted in the 5th and 10th Circuit's
approaches:

But while we will not assess the importance of a religious practice to a
practitioner's exercise of religion or impose any type of centrality test,
a claimant must at least demonstrate “an honest belief that the practice is
important to [her] free exercise of religion” in order to show that a
government action substantially burdens her religious exercise. Sossamon,
560 F.3d at 332; see also Ford, 352 at 593–94. A substantial burden is not
measured only by the secular costs that government action imposes; the
claimant must also establish that she believes there are religious costs as
well, and this should be clear from the record. See Ira C. Lupu, Hobby
Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. &
Gender 35, 80 (2015); cf. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th
Cir.2010).

United States v. Sterling, 75 M.J. 407, 417–18 (C.A.A.F. 2016)


In the ultimate irony, the petitioner's reply brief relies on the 10th
Circuit's decision in Calbone without acknowledging that that decision
approved the "honest belief" test applied by CAAF.

As of today, there is no circuit split over the "honest belief" test
applied by the 5th Circuit, the 10th Circuit, and the CAAF. Perhaps the
issue is important enough that the Supreme Court should grant cert in the
absence of as split, but the petitioner's briefing in this case has been
far less than forthright.

- Jim


On Fri, May 5, 2017 at 8:20 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Paul Clement's reply brief
> .
> Case schedule for Conference on 05/18.
>
> On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman  georgetown.edu> wrote:
>
>> Now that Paul Clement has filed a cert. petition
>> 
>> in this case, I thought I might revive the thread, which didn't inspire any
>> reactions last time around!  Perhaps I'm alone, but it strikes me that the
>> case raises a very interesting and important question about how to assess
>> whether a burden on religious exercise is "substantial" for RFRA purposes.
>> To recap the very straightforward facts:
>>
>> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
>> signs in her workspace, each containing only the words “No weapon formed
>> against me shall prosper”--two of them in large (28-point) font.  The
>> statement derives from Isaiah 54:17.  She posted one sign on the side of
>> her computer tower, one above her computer screen, and one above her desk
>> mailbox. The signs were large enough for those walking by her desk, and
>> Marines seated at her workspace, to read.
>>
>> 2.  Her superior officer insisted that she take the signs down; indeed,
>> that officer threw her signs in the trash, and she continued to repost
>> them.  Therefore Sterling was court-martialed for insubordination, and
>> sentenced to a bad-conduct discharge and a reduction in pay grade--no
>> small thing in terms of sanctions.  As far as the record shows, her
>> superior officer was not motivated by the fact that the signs were, or 
>> Sterling
>> was, religious--he would have done the same no matter what the
>> employee's motivation was, and no matter whether the signs were scriptural.
>>
>> 3.  Sterling testified that the signs had religious significance to her,
>> and that she posted them in response to difficulties she was experiencing

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

[David Cruz]

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

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

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

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

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

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


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


From: <religionlaw-boun...@lists.ucla.edu> on behalf of Marty Lederman 
<martin.leder...@law.georgetown.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Date: Friday, May 5, 2017 at 8:20 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Paul Clement's reply 
brief<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/05/16-814-pet-cert-reply.pdf=E,1,m0ZKnxfWUZI50lFDsNO1NugePJq7sgBBwVsKpJvqMhgePQY91ebO9uJax6mBoiq5Z3ywpxyQISM_xme6szULzF0ucnM9jzSOsn9NHr5Twg,,=1>.
  Case schedule for Conference on 05/18.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> 
wrote:
Now that Paul Clement has filed a cert. 
petition<https://linkprotect.cudasvc.com/url?a=http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf=E,1,4DSslEr_JebobJ7WdRcTrDIUPz_8FnEWpN5XDA_qnGZTQXFUNXd4VhjR5uoxs-5iWSCXbJesYmg_SbrxfJOYV4vkJd9NurnDnDQn6mUJN9Vf=1>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  [snip]

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

[Marty Lederman]

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

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

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman  > wrote:
>
>> For purposes of a project I'm currently working on, I'm genuinely curious
>> whether any readers on the list think that there was a substantial burden
>> here.  Paul Clement argued on behalf of the plaintiff's cause, and there
>> were a slew of amicus briefs, so I assume there's a serious dispute out
>> there.  I'd like to understand it better, and to be able to put the burden
>> question in the best possible light.  (Please note that I am putting aside
>> the question of whether the Air Force would still win on 

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

[Mark Scarberry]

I would like to know whether her superior allowed or would have allowed other 
secular messages to be posted, like "Be a positive thinker!" or even "My 
daughter is the best!" Perhaps the burden should be on the military to show 
that other messages would have been treated the same. We are told only that "as 
far as the record shows," he would have. That's a bit ambiguous. Did the record 
show he would have?

The message was not, I think, overtly religious; how many list members would 
have thought, "Oh, that's from the Bible!" (It could have been from Dungeons 
and dragons, or a Lord of the Rings clone, or just vivid and creative 
language.) Nor was it exclusionary, so as to potentially disrupt the cohesion 
that might be important particularly in a military environment. Nor does it 
appear that the message was directed against others in the office that Sterling 
might have thought were against her.

Even with its somewhat archaic language, I would think that the message was 
entirely appropriate for a military, much of whose purpose is to defeat or 
deter others in the use of weapons.

If there might be a speech discrimination issue here -- with religious speech 
being favored under RFRA -- one solution would be to allow everyone to post a 
non-disruptive message at their desk.

 Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>>
Sent: Wednesday, April 26, 2017 4:37 PM
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>


Here's the government's brief in 
opposition<http://www.scotusblog.com/wp-content/uploads/2017/04/16-814-BIO.pdf>.
  It stresses that RFRA's substantial burden test requires the claimant at a 
minimum to provide evidence of an honest belief that the practice in 
question--rather than available alternatives--wasimportant to her exercise of 
religion (something utterly lacking here--see my description below).

The SG does not mention, in addition, that even if there were a substantial 
burden here, RFRA would not require a religious exemption because the 
government has a compelling interest in not violating the Free Speech Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> 
wrote:
Now that Paul Clement has filed a cert. 
petition<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified,a "mental reminder” to her and that she didnot 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."  S

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

[Marty Lederman]

Here's the government's brief in opposition
.  It
stresses that RFRA's substantial burden test requires the claimant at a
minimum to provide evidence of an honest belief that the practice in
question--rather than available alternatives--was *important* to her
exercise of religion (something utterly lacking here--see my description
below).

The SG does not mention, in addition, that even if there were a substantial
burden here, RFRA would not require a religious exemption because the
government has a compelling interest in not violating the Free Speech
Clause.

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

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman  > wrote:
>
>> For purposes of a project I'm 

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

[Ira Lupu]

With respect, I think that neither Mary Anne Case nor Chris Lund have
provided counter-examples to my assertion that prison inmate cases
typically involve only the question of the quality or quantity of the
religious burden (is it "substantial"?) and typically do not involve the
secular cost of compliance with faith.  What would be the "consequences" to
the inmate in Holt v. Hobbs if he did not shave?  If the answer is solitary
confinement until he is willing to shave, that would indeed be a secular
burden on religious compliance.  But if the answer is "we will forcibly
shave your face," that is just a coercive way of refusing permission to
engage in the requested practice.  And, indeed, both of Mary Anne's
examples (whatever they may show about Judge Gorsuch) are likewise about
refusal of permission to do what the prisoner requested (use only a certain
name; eat only certain foods), rather than punishments for engaging in the
practice.  Of course, there may be counterexamples.  But if you look at the
hundreds of RLUIPA cases involving prisoners, where substantiality of
burden is put in issue, I think you will see that the overwhelming majority
of them involve inquiry into the importance of a religious practice, not
the question of secular consequences for choosing to engage in the practice.

I don't want to overdo this point.  It is mainly about analytical clarity
in discussion of whether a burden on religious exercise is substantial.  In
some cases - and prison cases are the best example -- the question is all
about the religious significance of the practice, and not at all about the
penalty for engaging in it.  And that means that prison officials, and
sometimes judges, must weigh the religious significance of the practice to
the complainant.  That weighing, I believe, involves adjudication of a
religious question, outside the state's constitutional competence (just
like the question of who is fit for ministry, see Hosanna-Tabor).

On Tue, Feb 21, 2017 at 11:25 PM, Christopher Lund <l...@wayne.edu> wrote:

> I’m probably wrong.  But I’ve traditionally thought that any financial
> penalty is enough.  The fine in *Yoder *was $5.  *Sherbert *involved a
> discretionary governmental benefit—and the Court didn’t seem to care how
> much money Adele Sherbert had, or how much she was losing in benefits.  I
> always thought the rule pretty simple here: If the government requires you
> on pain of penalty to do something your religion forbids, or forbids
> something your religion requires, that’s a substantial burden.  The amount
> of penalty is generally irrelevant.  In *Holt v. Hobbs, *Arkansas
> memorably tells the prisoner, “You will abide by [Arkansas Department of
> Correction] policies and if you choose to disobey, you can suffer the
> consequences.”  The Court says that’s a substantial burden, but the reader
> never learns what “suffer the consequences” actually means.  The Court does
> not say; it’s moved on to the next issue.
>
>
>
> This is not to say that religious claimants can show a substantial burden
> by mere say-so.  There are still significant classes of cases where there’s
> no substantial burden despite the plaintiffs’ contentions otherwise—there’s
> still *Lyng *and *Bowen* and *Braunfeld*.  (And I think there’s a good
> case that *Zubik *fits inside *Lyng/Bowen*.)  But it’s **outside** the
> classic context of the government directly penalizing religiously motivated
> action/inaction that I really think burdens become a matter of degree—a
> sorites paradox, as you say.  This is where there’s the most room for
> judgment, and judgments can differ.
>
>
>
> In that vein—and this really was the original point of my post!—I have an
> example of a sorites paradox for you in the context of hungry religious
> inmates, http://www.opn.ca6.uscourts.gov/opinions.pdf/15a0664n-06.pdf.
> The prison normally serves 2,600 calorie meals.  But bagged Ramadan meals
> have fewer calories.  Substantial burden?  Well, it probably depends on how
> many calories the Ramadan meals actually have.  500 calories—yes, probably
> a substantial burden.  2,500 calories—no, probably not.  In the actual
> case, the Ramadan meals had 1,300 calories—and not only did the 6th Circuit
> say it violated RLUIPA, it denied qualified immunity.
>
>
>
> 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)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> list

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

[Christopher Lund]

I’m probably wrong.  But I’ve traditionally thought that any financial penalty 
is enough.  The fine in Yoder was $5.  Sherbert involved a discretionary 
governmental benefit—and the Court didn’t seem to care how much money Adele 
Sherbert had, or how much she was losing in benefits.  I always thought the 
rule pretty simple here: If the government requires you on pain of penalty to 
do something your religion forbids, or forbids something your religion 
requires, that’s a substantial burden.  The amount of penalty is generally 
irrelevant.  In Holt v. Hobbs, Arkansas memorably tells the prisoner, “You will 
abide by [Arkansas Department of Correction] policies and if you choose to 
disobey, you can suffer the consequences.”  The Court says that’s a substantial 
burden, but the reader never learns what “suffer the consequences” actually 
means.  The Court does not say; it’s moved on to the next issue.

This is not to say that religious claimants can show a substantial burden by 
mere say-so.  There are still significant classes of cases where there’s no 
substantial burden despite the plaintiffs’ contentions otherwise—there’s still 
Lyng and Bowen and Braunfeld.  (And I think there’s a good case that Zubik fits 
inside Lyng/Bowen.)  But it’s *outside* the classic context of the government 
directly penalizing religiously motivated action/inaction that I really think 
burdens become a matter of degree—a sorites paradox, as you say.  This is where 
there’s the most room for judgment, and judgments can differ.

In that vein—and this really was the original point of my post!—I have an 
example of a sorites paradox for you in the context of hungry religious 
inmates, http://www.opn.ca6.uscourts.gov/opinions.pdf/15a0664n-06.pdf.  The 
prison normally serves 2,600 calorie meals.  But bagged Ramadan meals have 
fewer calories.  Substantial burden?  Well, it probably depends on how many 
calories the Ramadan meals actually have.  500 calories—yes, probably a 
substantial burden.  2,500 calories—no, probably not.  In the actual case, the 
Ramadan meals had 1,300 calories—and not only did the 6th Circuit say it 
violated RLUIPA, it denied qualified immunity.

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)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Tuesday, February 21, 2017 7:34 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

As Marty Lederman among others has demonstrated, the Greens of Hobby Lobby were 
never “compelled … to do something that they thought religiously forbidden;” 
they always had the choice to take a financial hit by no longer offering 
insurance, just as Abdulhaseeb has the choice to miss some meals.  Is there a 
sorites paradox here?  When short of starvation does missing meals become 
substantial enough to count?  When is a financial penalty substantial enough, 
and should it matter if the person suffering it is dependent on unemployment 
insurance or a multi-millionaire?

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, February 21, 2017 6:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Well, given that Gorsuch voted in favor of both Abdulhaseeb and 
the likewise presumably very poor Native American prisoner, Yellowbear v. 
Lampert, that is especially strong reason not to succumb to the temptation.

Indeed, whatever might be required merely for Article III standing, Gorsuch’s 
point in Hobby Lobby was that the government compelled plaintiffs to do 
something that they thought religiously forbidden; likewise, in Yellowbear, the 
government forbade something that plaintiff thought religiously required, as it 
did in Abdulhaseeb as to the required halal meat claim.  The Christians, Native 
American religious practitioner, and the Muslim were treated quite alike in 
this respect.

But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable 
foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all 
of the tray's contents inedible,” Gorsuch thought that the burden wasn’t 
substantial, because while “It's surely a burden to forgo an occasional meal,” 
the burden is less substantial.  And as to Ali, Gorsuch concluded that, though 
a “burden can count as substantial if it prohibits the prisoner taking actions 
motivated by sincerely held religious beliefs — or if it requires or places 
c

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

[Case, Mary Anne]

As Marty Lederman among others has demonstrated, the Greens of Hobby Lobby were 
never “compelled … to do something that they thought religiously forbidden;” 
they always had the choice to take a financial hit by no longer offering 
insurance, just as Abdulhaseeb has the choice to miss some meals.  Is there a 
sorites paradox here?  When short of starvation does missing meals become 
substantial enough to count?  When is a financial penalty substantial enough, 
and should it matter if the person suffering it is dependent on unemployment 
insurance or a multi-millionaire?

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, February 21, 2017 6:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Well, given that Gorsuch voted in favor of both Abdulhaseeb and 
the likewise presumably very poor Native American prisoner, Yellowbear v. 
Lampert, that is especially strong reason not to succumb to the temptation.

Indeed, whatever might be required merely for Article III standing, Gorsuch’s 
point in Hobby Lobby was that the government compelled plaintiffs to do 
something that they thought religiously forbidden; likewise, in Yellowbear, the 
government forbade something that plaintiff thought religiously required, as it 
did in Abdulhaseeb as to the required halal meat claim.  The Christians, Native 
American religious practitioner, and the Muslim were treated quite alike in 
this respect.

But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable 
foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all 
of the tray's contents inedible,” Gorsuch thought that the burden wasn’t 
substantial, because while “It's surely a burden to forgo an occasional meal,” 
the burden is less substantial.  And as to Ali, Gorsuch concluded that, though 
a “burden can count as substantial if it prohibits the prisoner taking actions 
motivated by sincerely held religious beliefs — or if it requires or places 
considerable pressure on the prisoner to do something his sincerely held 
religious beliefs forbid,” “Mr. Ali’s complaint fails to allege so much”:

Mr. Ali's complaint fails to allege so much. In places, the complaint suggests 
that the prison forbids Mr. Ali from using his religious name on mail — and 
that this is the gravamen of his complaint. Indeed, the title of the relevant 
claim in his complaint reads: "The SCF mail room's refusal to permit the 
plaintiff to send and receive mail under Jahad Ali violates his right to freely 
exercise his religious beliefs." R. at 35. Yet, Mr. Ali himself elsewhere 
concedes that the prison doesn't actually forbid the use of his religious name. 
Instead, he simply has to include his committed name alongside his religious 
name. So even if we were to agree with Mr. Ali that it might be a substantial 
burden on his religious exercise to forbid him to use his religious name on his 
mail, his own pleading makes plain that no such burden exists.

We suppose it's possible the prison's modest requirement that both names appear 
could itself be enough to qualify as a substantial burden under RLUIPA — if, 
say, a prisoner's sincerely held religious beliefs forbade any mention of a 
former name. But even affording the liberality due a pro se litigant, we don't 
see this allegation clearly made in claim 2 of Mr. Ali's complaint.

Seems like a reasonable analysis to me.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Tuesday, February 21, 2017 4:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But i

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

[Volokh, Eugene]

Well, given that Gorsuch voted in favor of both Abdulhaseeb and 
the likewise presumably very poor Native American prisoner, Yellowbear v. 
Lampert, that is especially strong reason not to succumb to the temptation.

Indeed, whatever might be required merely for Article III standing, Gorsuch’s 
point in Hobby Lobby was that the government compelled plaintiffs to do 
something that they thought religiously forbidden; likewise, in Yellowbear, the 
government forbade something that plaintiff thought religiously required, as it 
did in Abdulhaseeb as to the required halal meat claim.  The Christians, Native 
American religious practitioner, and the Muslim were treated quite alike in 
this respect.

But as to Abdulhaseeb’s claim that “ODOC sporadically placed questionable 
foods, such as jell-o and pudding, onto his cafeteria tray, thus rendering all 
of the tray's contents inedible,” Gorsuch thought that the burden wasn’t 
substantial, because while “It's surely a burden to forgo an occasional meal,” 
the burden is less substantial.  And as to Ali, Gorsuch concluded that, though 
a “burden can count as substantial if it prohibits the prisoner taking actions 
motivated by sincerely held religious beliefs — or if it requires or places 
considerable pressure on the prisoner to do something his sincerely held 
religious beliefs forbid,” “Mr. Ali’s complaint fails to allege so much”:

Mr. Ali's complaint fails to allege so much. In places, the complaint suggests 
that the prison forbids Mr. Ali from using his religious name on mail — and 
that this is the gravamen of his complaint. Indeed, the title of the relevant 
claim in his complaint reads: "The SCF mail room's refusal to permit the 
plaintiff to send and receive mail under Jahad Ali violates his right to freely 
exercise his religious beliefs." R. at 35. Yet, Mr. Ali himself elsewhere 
concedes that the prison doesn't actually forbid the use of his religious name. 
Instead, he simply has to include his committed name alongside his religious 
name. So even if we were to agree with Mr. Ali that it might be a substantial 
burden on his religious exercise to forbid him to use his religious name on his 
mail, his own pleading makes plain that no such burden exists.

We suppose it's possible the prison's modest requirement that both names appear 
could itself be enough to qualify as a substantial burden under RLUIPA — if, 
say, a prisoner's sincerely held religious beliefs forbade any mention of a 
former name. But even affording the liberality due a pro se litigant, we don't 
see this allegation clearly made in claim 2 of Mr. Ali's complaint.

Seems like a reasonable analysis to me.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Case, Mary Anne
Sent: Tuesday, February 21, 2017 4:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But it's 
not a substantial burden, and RLUIPA proscribes only government actions that 
substantially burden religious exercise.”  Quite apart from its relevance, if 
any to Sterling,  I’d welcome thoughts on this, especially coming from Gorsuch, 
who said, in his Hobby Lobby concurrence that it was enough to give the Greens 
individually standing that “the company shares of which they are the beneficial 
owners would decline in value if the mandate's penalties for non-compliance 
were enforced.”

Let me also throw into the mix another relevant Gorsuch opinion, Ali v. 
Wingert, 569 Fed. Appx. 562 (2014) which also is a counter-example for Chip’s 
first proposition, in that involves a prisoner with a choice, also, as it 
happens a Muslim prisoner of whose claim of burden (this time religious burden, 
not secular) Gorsuch is dismissive. When pro se plaintiff Ali objects to being 
forced to include the na

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

[Case, Mary Anne]

Consider the following exception to Chip’s first proposition below,  that "’ 
secular cost’… does no work in cases involving the religious freedom of 
prisoners” a particularly timely exception since it comes from a Gorsuch 
opinion:

In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir 2010), a Muslim prisoner 
raised a variety of objections to his inability to get what he considered a 
proper halal diet, one of which, as framed in the language of Gorsuch’s 
concurrence, was that the prison “sporadically placed questionable foods, such 
as jell-o and pudding, onto his cafeteria tray, thus rendering all of the 
tray's contents inedible.”  While Gorsuch thought Abdulhaseeb should not be 
“forced to choose between violating his religious beliefs and starving to 
death”  he thought the sporadic deposit of questionable foods did not even meet 
the standard for a triable RLUIPA claim because “Mr Abdulhaseeb has described 
only a moderate impediment to -- and not a constructive. prohibition of -- his 
religious exercise. It's surely a burden to forgo an occasional meal. But it's 
not a substantial burden, and RLUIPA proscribes only government actions that 
substantially burden religious exercise.”  Quite apart from its relevance, if 
any to Sterling,  I’d welcome thoughts on this, especially coming from Gorsuch, 
who said, in his Hobby Lobby concurrence that it was enough to give the Greens 
individually standing that “the company shares of which they are the beneficial 
owners would decline in value if the mandate's penalties for non-compliance 
were enforced.”

Let me also throw into the mix another relevant Gorsuch opinion, Ali v. 
Wingert, 569 Fed. Appx. 562 (2014) which also is a counter-example for Chip’s 
first proposition, in that involves a prisoner with a choice, also, as it 
happens a Muslim prisoner of whose claim of burden (this time religious burden, 
not secular) Gorsuch is dismissive. When pro se plaintiff Ali objects to being 
forced to include the name he was convicted under on all mail, despite a 
religiously motivated name change, Gorsuch says he has not articulated a 
substantial burden on a sincere religious exercise, putting in scare quotes 
Ali’s claim “that his spiritual experience is ‘heightened’ by using his 
religious name and that he finds his old name ‘offensive.’…. It might be 
‘offensive’ to him, but he does not tell us how or why it burdens his religious 
exercise.”

I don’t want to succumb to the temptation of thinking Gorsuch sees burdens on 
rich and powerful Christians more readily than he does those facing poor Muslim 
prisoners, but I could use your help resisting it.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, February 21, 2017 5:26 PM
To: Law & Religion issues for Law Academics; James Oleske
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Thanks to Jim Oleske for the kind words.  Here is a thought about the general 
landscape of inquiry into burdens on religion, and a related thought about the 
way Texas has argued in these various matters:
1) The proposition that RFRA's "substantial burden" inquiry includes both a 
"secular cost" and a "religious cost" component, which is screamingly obvious 
from Yoder (where the religious cost of compliance with law is the 
centerpiece), does no work in cases involving the religious freedom of 
prisoners.  Why?  Because in the civilian world, there is typically a choice to 
be made -- stick to your religious convictions and pay the secular price 
(fines; imprisonment; lost government benefit), or violate your religious 
convictions (that is, incur a religious cost) to avoid the secular price.  But 
in prison, the inmates almost always need permission, not forgiveness, to 
follow the religious convictions in question.  The prison authorities don't 
threaten inmates with punishment if they, for example, grow their hair long.  
They just say no, and coercively cut the hair (or deny whatever privilege the 
inmate is seeking). So the ONLY question in these cases is the "religious cost" 
of being unable to practice what the prisoner claims is his faith.  This leads 
to some constitutionally unacceptable consequences, like having the state 
consult clergy to determine whether denial of the privilege is a substantial 
burden on the prisoner's religious exercise, and it always winds up with the 
state (through some agent, executive or judicial) having to make a religious 
judgment.


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

[Ira Lupu]

Thanks to Jim Oleske for the kind words.  Here is a thought about the
general landscape of inquiry into burdens on religion, and a related
thought about the way Texas has argued in these various matters:
1) The proposition that RFRA's "substantial burden" inquiry includes both a
"secular cost" and a "religious cost" component, which is screamingly
obvious from Yoder (where the religious cost of compliance with law is the
centerpiece), does no work in cases involving the religious freedom of
prisoners.  Why?  Because in the civilian world, there is typically a
choice to be made -- stick to your religious convictions and pay the
secular price (fines; imprisonment; lost government benefit), or violate
your religious convictions (that is, incur a religious cost) to avoid the
secular price.  But in prison, the inmates almost always need permission,
not forgiveness, to follow the religious convictions in question.  The
prison authorities don't threaten inmates with punishment if they, for
example, grow their hair long.  They just say no, and coercively cut the
hair (or deny whatever privilege the inmate is seeking). So the ONLY
question in these cases is the "religious cost" of being unable to practice
what the prisoner claims is his faith.  This leads to some constitutionally
unacceptable consequences, like having the state consult clergy to
determine whether denial of the privilege is a substantial burden on the
prisoner's religious exercise, and it always winds up with the state
(through some agent, executive or judicial) having to make a religious
judgment.

2) Texas in Sossomon as compared to Texas in other settings -- when Texas
litigates against its own prisoners, it (like other states) is always
looking for ways to say no, to deny RLUIPA claims.  So of course it argues
for a narrow definition of substantial burden, and a broad power of
judicial review over the question.  By comparison, when the case is not
about a Texas prisoner, and indeed does not involve Texas law at all, and a
high profile cert petition is filed, some grandstanding state AG is going
to take the side of expansive religious freedom, and argue for
self-declaration of substantial religious burden.  What a surprise.  The
concept is infinitely malleable, and the context drives lawyers and judges
to stretch and squeeze it. This is one of the many reasons why I have
claimed for years that generic regimes of religious exemption, like RFRA,
can never be applied in a principled fashion over time.

On Tue, Feb 21, 2017 at 11:38 AM, James Oleske  wrote:

> It is also worth noting that Texas has filed an amicus brief in support of
> Sterling's cert. petition that appears to be in some tension with the
> state's 5th Circuit brief in *Sossoman*.
>
> Compare Texas Amicus Br. in Sterling at 6-9 ("The Court Below *Wrongly
> Inquired into the Religious Importance* of an Exercise of Religion
> courts should not embark on an attempt to pronounce the centrality, 
> *importance,
> or significance of a religiously motivated practice in a person’s faith*")
> (emphasis added) with Texas Supp. Br. in Sossamon at ("A government action
> or regulation creates a 'substantial burden' on a religious exercise if it
> truly pressures the adherent to significantly modify his religious behavior 
> *and
> significantly violate his religious beliefs*") (emphasis added) (citing
> for support the very page of the Fifth Circuit case, Adkins v. Kaspar, in
> which that court first held that a RLUIPA claimant bears the "burden of
> demonstrating the honesty and accuracy of his contention that the religious
> practice at issue *is important to the free exercise of his religion*").
>
> Like Sterling's cert. petition, Texas's supporting amicus brief
> completely ignores the "honest belief" component of the CAAF's "important
> to free exercise" reasoning, even though that component comes directly from
> the Fifth Circuit's decision in *Sossamon*, which in turn relied on the
> earlier *Adkins* case cited in Texas's *Sossamon *brief.
>
> - Jim
>
>
> On Tue, Feb 21, 2017 at 7:08 AM, James Oleske  wrote:
>
>> Thanks to Marty for re-upping this thread. Two initial, related thoughts:
>>
>> 1. It would be very interesting to hear from Chip on this issue, as the
>> Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent
>> article, "*Hobby Lobby* and the Dubious Enterprise of Religious
>> Exemptions," for the proposition that RFRA's "substantial burden" inquiry
>> includes both a "secular cost" and a "religious cost" component.
>>
>> 2. Interestingly, although the CAAF does not explicitly acknowledge
>> Chip's warning about the dangers of the "religious cost" component of the
>> substantial-burden inquiry -- that "to the extent the regime permits judges
>> to determine the religious weight and significance of certain practices,
>> the regime unconstitutionally entrusts the state with questions that it is
>> constitutionally 

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

[James Oleske]

It is also worth noting that Texas has filed an amicus brief in support of
Sterling's cert. petition that appears to be in some tension with the
state's 5th Circuit brief in *Sossoman*.

Compare Texas Amicus Br. in Sterling at 6-9 ("The Court Below *Wrongly
Inquired into the Religious Importance* of an Exercise of Religion
courts should not embark on an attempt to pronounce the centrality,
*importance,
or significance of a religiously motivated practice in a person’s faith*")
(emphasis added) with Texas Supp. Br. in Sossamon at ("A government action
or regulation creates a 'substantial burden' on a religious exercise if it
truly pressures the adherent to significantly modify his religious
behavior *and
significantly violate his religious beliefs*") (emphasis added) (citing for
support the very page of the Fifth Circuit case, Adkins v. Kaspar, in which
that court first held that a RLUIPA claimant bears the "burden of
demonstrating the honesty and accuracy of his contention that the religious
practice at issue *is important to the free exercise of his religion*").

Like Sterling's cert. petition, Texas's supporting amicus brief
completely ignores the "honest belief" component of the CAAF's "important
to free exercise" reasoning, even though that component comes directly from
the Fifth Circuit's decision in *Sossamon*, which in turn relied on the
earlier *Adkins* case cited in Texas's *Sossamon *brief.

- Jim


On Tue, Feb 21, 2017 at 7:08 AM, James Oleske  wrote:

> Thanks to Marty for re-upping this thread. Two initial, related thoughts:
>
> 1. It would be very interesting to hear from Chip on this issue, as the
> Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent
> article, "*Hobby Lobby* and the Dubious Enterprise of Religious
> Exemptions," for the proposition that RFRA's "substantial burden" inquiry
> includes both a "secular cost" and a "religious cost" component.
>
> 2. Interestingly, although the CAAF does not explicitly acknowledge Chip's
> warning about the dangers of the "religious cost" component of the
> substantial-burden inquiry -- that "to the extent the regime permits judges
> to determine the religious weight and significance of certain practices,
> the regime unconstitutionally entrusts the state with questions that it is
> constitutionally incompetent to answer" -- the CAAF applies the "religious
> cost" component in a way that seems designed to avoid the danger by only
> asking whether the claimant demonstrated an "honest belief" that there was
> a religious cost:
>
> [W]hile we will not assess the importance of a religious practice to a
> practitioner’s exercise of religion or impose any type of centrality test,
> a claimant must at least demonstrate “an honest belief that the practice is
> important to [her] free exercise of religion” in order to show that a
> government action substantially burdens her religious exercise. *Sossamon*,
> 560 F.3d at 332 …. This requirement is not novel; language in central
> Supreme Court opinions on the question of substantial burden affirms that
> the adherent’s subjective belief in the importance of a practice to her
> religion is relevant to the sub- stantial burden inquiry…. In this case,
> Appellant did not present any testimony that the signs were important to
> her exercise of religion …. While Appellant testified that posting the
> signs was religiously motivated in part, she did not testify that she
> believed it is any tenet or practice of her faith to display signs at
> work…. Although Appellant did not have to provide evidence that posting
> signs in her shared workspace was central to her belief system, she did
> have to provide evidence indicating an honest belief that “the practice
> [was] important to [her] free exercise of religion.” *See Sossamon, *560
> F.3d at 332.
>
>
> Notably, the cert. petition completely ignores the "honest belief"
> component of the CAAF's reasoning above, reframing the CAAF's holding as
> follows:
>
> The CAAF focused on "the subjective importance of the conduct to the
> person’s religion,” and *it held that adherents must show that a desired
> practice “is important to her religious exercise”* and implicates a
> “tenet” or precept” of her faith. This entire line of inquiry, which was
> central to the CAAF’s rejection of LCpl Sterling’s RFRA claim, took the
> CAAF to a place no secular court is equipped or authorized to go. (emphasis
> added).
>
>
> The petition also ignores the fact that the CAAF's "honest belief that the
> practice is important" test comes from the Fifth Circuit's decision in
> *Sossamon*, a decision that is nowhere acknowledged in the petition. This
> oversight is particularly interesting given that the petition seeks to
> portray the CAAF's decision as being on the wrong side of a circuit split
> in which the Fifth Circuit allegedly represents the right side.
>
> - Jim
>
>
> On Mon, Feb 20, 2017 at 12:05 PM, Marty Lederman <
> 

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

[James Oleske]

Thanks to Marty for re-upping this thread. Two initial, related thoughts:

1. It would be very interesting to hear from Chip on this issue, as the
Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent
article, "*Hobby Lobby* and the Dubious Enterprise of Religious
Exemptions," for the proposition that RFRA's "substantial burden" inquiry
includes both a "secular cost" and a "religious cost" component.

2. Interestingly, although the CAAF does not explicitly acknowledge Chip's
warning about the dangers of the "religious cost" component of the
substantial-burden inquiry -- that "to the extent the regime permits judges
to determine the religious weight and significance of certain practices,
the regime unconstitutionally entrusts the state with questions that it is
constitutionally incompetent to answer" -- the CAAF applies the "religious
cost" component in a way that seems designed to avoid the danger by only
asking whether the claimant demonstrated an "honest belief" that there was
a religious cost:

[W]hile we will not assess the importance of a religious practice to a
practitioner’s exercise of religion or impose any type of centrality test,
a claimant must at least demonstrate “an honest belief that the practice is
important to [her] free exercise of religion” in order to show that a
government action substantially burdens her religious exercise. *Sossamon*,
560 F.3d at 332 …. This requirement is not novel; language in central
Supreme Court opinions on the question of substantial burden affirms that
the adherent’s subjective belief in the importance of a practice to her
religion is relevant to the sub- stantial burden inquiry…. In this case,
Appellant did not present any testimony that the signs were important to
her exercise of religion …. While Appellant testified that posting the
signs was religiously motivated in part, she did not testify that she
believed it is any tenet or practice of her faith to display signs at
work…. Although Appellant did not have to provide evidence that posting
signs in her shared workspace was central to her belief system, she did
have to provide evidence indicating an honest belief that “the practice
[was] important to [her] free exercise of religion.” *See Sossamon, *560
F.3d at 332.


Notably, the cert. petition completely ignores the "honest belief"
component of the CAAF's reasoning above, reframing the CAAF's holding as
follows:

The CAAF focused on "the subjective importance of the conduct to the
person’s religion,” and *it held that adherents must show that a desired
practice “is important to her religious exercise”* and implicates a “tenet”
or precept” of her faith. This entire line of inquiry, which was central to
the CAAF’s rejection of LCpl Sterling’s RFRA claim, took the CAAF to a
place no secular court is equipped or authorized to go. (emphasis added).


The petition also ignores the fact that the CAAF's "honest belief that the
practice is important" test comes from the Fifth Circuit's decision in
*Sossamon*, a decision that is nowhere acknowledged in the petition. This
oversight is particularly interesting given that the petition seeks to
portray the CAAF's decision as being on the wrong side of a circuit split
in which the Fifth Circuit allegedly represents the right side.

- Jim


On Mon, Feb 20, 2017 at 12:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified 

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 <aebrownst...@ucdavis.edu
> 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 <religionlaw-bounces@lists.
> ucla.edu> on behalf of Eric J Segall <eseg...@gsu.edu>
> *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 <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 <religionlaw@lists.ucla.edu>;
> Marty Lederman <lederman.ma...@gmail.com>
> *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 <religionlaw-bounces@lists.
&g

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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Eric J Segall <eseg...@gsu.edu>
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<mailto: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

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
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 C

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) 
<hd...@virginia.edu<mailto: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

From: 
religionlaw-boun...@lists.ucla.edu<mailto: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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
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> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D=0>
 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 

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 <religionlaw@lists.ucla.edu>; Marty 
Lederman <lederman.ma...@gmail.com>
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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
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> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D=0>
 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-martia

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 <lederman.ma...@gmail.com>
> *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
>
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
>
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no small
> thing in terms of sanctions.  As far as the record shows, her superior
> officer was not motivated by the fact that the signs were, or Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural

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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
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 <lederman.ma...@gmail.com>
Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D=0>
 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," 

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 <lederman.ma...@gmail.com>
> *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens
>
>
>
> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
>
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
>
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no small
> thing in terms of sanctions.  As far as the record shows, h

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 <lederman.ma...@gmail.com>
Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified, a "mental reminder” to her and that she did not 
intend to “send a message to anyone” else.  Paul's petition asserts, without 
citation to the record, that "[t]he conduct at issue was an undisputed exercise 
of religion by LCpl Sterling to beseech a higher power for spiritual strength 
and fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  Sterling did not testify, or otherwise 
claim, however, that her religion mandated that she post the signs, or that it 
was a common practice or tenet of her religion.  More to the point, she 
apparently did not testify about whether or why posting the signs was important 
to her, or a significant part of her religious exercise.  She did not, for 
example, explain why it would not have been just as effective for her to post 
the signs in smaller font that others would not notice, or to use other means 
of "mentally reminding" herself.

The Court of Appeals for the Armed Forces held that Sterling had failed to meet 
her RFRA burden because she did not establish either the "subjective importance 
of the conduct" to her religious exercise, or that such posting was a “tenet” 
or "p

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 <martin.leder...@law.georgetown.edu>
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Monday, February 20, 2017 at 3:05 PM
> To: Marty Lederman <lederman.ma...@gmail.com>
> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re-upping: Sterling: A helpful test case on RFRA burdens
>
> Now that Paul Clement has filed a cert. petition
> <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not e

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 
<martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Monday, February 20, 2017 at 3:05 PM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified, a "mental reminder” to her and that she did not 
intend to “send a message to anyone” else.  Paul's petition asserts, without 
citation to the record, that "[t]he conduct at issue was an undisputed exercise 
of religion by LCpl Sterling to beseech a higher power for spiritual strength 
and fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  Sterling did not testify, or otherwise 
claim, however, that her religion mandated that she post the signs, or that it 
was a common practice or tenet of her religion.  More to the point, she 
apparently did not testify about whether or why posting the signs was important 
to her, or a significant part of her religious exercise.  She did not, for 
example, explain why it would not have been just as effective for her to post 
the signs in smaller font that others would not notice, or to use other means 
of "mentally reminding" herself.

The Court of Appeals for the Armed Forces held that Sterling had failed to meet 
her RFRA burden because she did not establish either the "subjective importance 
of the conduct" to her religious exercise, or that such posting was a “tenet” 
or "precept” of her faith.

My question:  Can it really be the case that Sterling has established a 
"substantial burden" on her religious exercise, without any evidence at all of 
how or why the posting of the bible verse at her desk, in a font big enough for 
bystanders to see, was at all important to her religious commitments or 
exercise?

According to Paul Clement's petition, an inquiry into the "subjective 
importance" of the practice to the plaintiff is not only unnecessary under 
RFRA, but constitutionally prohibited--it "took the CAAF to a place no secular 
court is equipped or authorized to go."  "[A]ny sensible interpretation of the 
Relig