More Questions on the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick Garnett notes, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I’ve talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court’s footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.

First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn’t deal with any of that. And so what is really going on is a failure of evidence. That’s fine, but that side-steps the issue. I’m less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).

Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which “take no account” of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening “significant” burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.

Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I’ve said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds).

Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It certainly could, and it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn’t take much more at all for it to win.

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