When Doesn’t a Religious Accommodation “Detrimentally Affect Others”? And a Few Other Holt v. Hobbs Thoughts

Not too much to add to Rick Garnett’s analysis of Holt v. Hobbs. A short and precise opinion from Justice Alito. Here are just a few other questions and comments about the opinion and concurrences:

1. Rick quotes Justice Ginsburg’s one-paragraph concurrence, which states that she only joins the Court’s opinion “on th[e] understanding” that the accommodation here “would not detrimentally affect others who do not share petitioner’s belief.” I guess she felt she had to use the occasion to say something pejorative about Hobby Lobby, which she also quotes. It seems she has bought the line pressed by those who claim that the Establishment Clause prohibits third-party burdens, yet she articulates the standard that they champion rather expansively. There may be a big difference between arguing that the Establishment Clause prohibits religious accommodations that impose “significant burdens on identifiable third parties” (if memory serves, this was the standard favored by academic defenders of this argument) and arguing that the Establishment Clause prohibits religious accommodations that “detrimentally affect” anybody who doesn’t share the claimant’s religious beliefs. I don’t believe the former is a correct reading of the Establishment Clause. But the latter formulation seems a good deal broader. What constitutes a “detrimental effect” under that approach? Might symbolic harms count? I don’t see why they wouldn’t. And as Justice Alito points out, Arkansas made no argument that an exemption was not feasible as a matter of cost or other resources (“the Department has not argued that denying a petitioner an exemption is necessary to further a compelling interest in cost control or program administration”). Had the Department made an argument about cost control (with evidence, which was seemingly in short supply on its side), would any evidence of increased cost (no matter how small) not only been enough to find against the claimant as a RLUIPA matter, but actually have triggered an Establishment Clause violation had the prison accommodated the inmate? Suppose I am a prison inmate who thinks 1/2 inch beards are beautiful as a fashion statement, or because I come from a long line of bearded ancestors and it is important to me to observe the tradition (not so far from the truth in my case, other than the bit about being a prison inmate). Am I not “detrimentally affected” by the inequality of treatment that results from Holt’s accommodation, but not mine? Surely I am. It seems to me that this sort of standard, as well as its more careful academic progenitor, strikes at the heart of these religious accommodation statutes.

2. Following from that point, the heart of these statutes (as Rick also notes) is to provide “very broad protection for religious liberty” or “expansive protection for religious liberty,” as the Court says right at the start of the opinion. This case was an easy one according to that standard, even with a thumb on the scale of deference toward prison administrators, which the Court reaffirms (it rejects “unquestioning deference” but it acknowledges the “respect” that is due the prison administrators’ “expertise”). Should not Hobby Lobby, in which there was no such presumptive deference or “respect” accorded to the government, also have been an easy case according to that standard? Should it at least have been as easy, in light of the absence of deference toward the government in the latter? And yet Holt was unanimous while Hobby Lobby split 5-4.

3. The breadth of protection for religious freedom contemplated by the statutes (RFRA and RLUIPA) and affirmed by the Court was notable, but so was the rigor with which the least restrictive means portion of the analysis was applied. In Holt, the prison argued that its concerns about the shaving of facial hair and escape were unique because of the particular sort of prison it operated, and that its rule was therefore the least restrictive means of securing against the possibility of escape. But the Court rejected that argument for the simple reason that the prison had not done enough to distinguish itself from other prisons that allow facial hair and that had managed these concerns. Other prisons, that is, whose situation was analogous to the Arkansas prison (even if not identical) used less restrictive means to achieve their security interests. The Court looked to the variety of less restrictive means on offer out there in the national universe, and found that the Department should have used one or more of those. This is perhaps a useful elaboration of the least restrictive means test. Unless the government can prove that its burden is truly unique, the Court will look to analogous (even if not identical) solutions to similar problems reached by other governmental entities. If those other solutions seem to have worked without an imposition on religious freedom, then the government has not used the least restrictive means.

Houlihan, “Catholicism and the Great War: Religion and Everyday Life in Germany and Austria-Hungary, 1914–1922”

In March, Cambridge University Press will release “Catholicism and the Great War: Religion and Everyday Life in Germany and Austria-Hungary, 1914–1922” by Patrick Houlihan (University of Chicago). The publisher’s description follows:

This transnational comparative history of Catholic everyday religion in Germany and Austria-Hungary during the Great War transforms our understanding of the war’s cultural legacy. Challenging master narratives of secularization and modernism, Houlihan reveals that Catholics from the losing powers had personal and collective religious experiences that revise the decline-and-fall stories of church and state during wartime. Focusing on private theologies and lived religion, Houlihan explores how believers adjusted to industrial warfare. Giving voice to previously marginalized historical actors, including soldiers as well as women and children on the home front, he creates a family history of Catholic religion, supplementing studies of the clergy and bishops. His findings shed new light on the diversity of faith in this period and how specifically Catholic forms of belief and practice enabled people from the losing powers to cope with the war much more successfully than previous cultural histories have led us to believe.

Steenbrink, “Catholics in Independent Indonesia:1945-2010”

In February, Brill will release “Catholics in Independent Indonesia: 1945-2010” by Karel Steenbrink (Utrecht University). The publisher’s description follows:

Catholics in Independent Indonesia: 1945-2010 concludes Steenbrink’s three volume historical account of Catholicism in Indonesia with a detailed report of the survival and growth of this minority religion in Muslim Indonesia since its independence in 1945. Colonial Catholicism survived in the independent Republic of Indonesia during the nationalist Sukarno regime (1945-1965) and regained a new dynamic during the general religious revival that was part of the New Order of Soeharto after 1965. From a Dutch-inspired institution it became a fully Indonesian steered community with a modern and international character. The second half of the book will deal with the different regional developments in this vast country.