The Eighth Circuit on “Substantial Burden”

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom.  The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened.  After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up.  On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.”  The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score. 

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion.  The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up.  That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.”  Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge.  The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect).  The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden: 

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs. 

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong.  But if the Eighth Circuit is right, then these sorts of arguments are not relevant to assessing the question of substantial burden for RFRA purposes.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).

2 responses

  1. Marc:

    If we follow the reasoning of the Eighth Circuit to its logical conclusion, is the question of substantial burden really a moot point? That is, does the plaintiff’s claim of substantial burden now amount to proof of substantial burden?

    Jeffrey

  2. Thanks for the (as always) very good comment, Jeffrey. I think you are right to suggest that limiting the issue of substantial burden to an inquiry about sincerity will probably mean as a practical matter that many RFRA cases will be decided on the other components of the test (compelling interest and/or least restrictive means). But depending on the degree to which a court inquires into sincerity, it might still be useful to weed out fraudulent claims. To use substantial burden to do a whole lot more than this runs into some of the language right in RFRA itself, which precludes inquiries into the “centrality” of a practice. Substantial burden might also be given more teeth by reference to the punishment (or burden) that will be endured by the claimant if the claimant is compelled to violate its conscience. For example, in this case, the penalty was criminal contempt and attendant jail time. A claimant who is willing to submit to hardship (like a criminal penalty) rather than be pressured into changing his or her beliefs seems to have a strong claim to enduring a substantial burden. But I also think there are problems here too. I’m not sure the state should be getting too involved in making judgments about how terrible a price must be paid by the plaintiff in order for a burden on religious practice to be “substantial.”

    No question, these are tricky issues.

Leave a Reply

%d bloggers like this: