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 
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] 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 

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] 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 

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 name he was convicted 

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