Mark and I have recorded another in our podcast series, this time on the “prison beard case,” Holt v. Hobbs, argued this week at the Supreme Court. We discuss the claim and the oral argument, and make some predictions. To get our other podcasts, click here.
Estrada and Boizelle on the Obama Administration and Religious Accommodation
In the latest issue of the Cato Supreme Court Review, there is a useful essay by Miguel Estrada and Ashley Boizelle discussing the upcoming Supreme Court term and some of the major cases that the Court will hear. As readers of the Forum are aware, one of these cases is Holt v. Hobbs, concerning a claim by an Arkansas prison inmate–who is serving a life sentence for burglary and domestic battery stemming from an incident in which he attempted to slash his girlfriend’s throat–that prison rules forbidding him to grow a 1/2 inch beard in accordance with his religious views violate the Religious Land Use and Institutionalized Persons Act. One interesting feature of the case is that the Solicitor General has filed an amicus brief on behalf of the prisoner. The authors comment:
Solicitor General Donald Verrilli filed an amicus brief in support of Holt’s challenge, calling the no-beard policy “religious discrimination” and “a substantial burden on religious exercise.” Interestingly, this brief was filed only a few months after the government’s reply brief in Hobby Lobby, which insisted that the requirement that employers provide their employees with no-cost contraceptives did not constitute a substantial burden on the religious beliefs of those employers. In the government’s view, prisons can advance their legitimate safety objectives in some other way that is more respectful of the inmate’s religious beliefs; the federal government, on the other hand, need not be troubled to accommodate the sincere religious beliefs of business owners.
The federal government’s differential treatment of these two cases is odd because RLUIPA was intended to make available to prisoners protections that replicate those available to the general citizenry under RFRA. Whatever the relationship between the two statutes, it would be bizarre if those whose liberty is restricted on account of proven antisocial behavior were better protected from the government’s incursions on their religion than members of the law-abiding public. Be that as it may, given the Supreme Court’s disposition in Hobby Lobby, we should not be surprised to see a ruling invalidating the no-beard policy as an unjustified burden on Holt’s religion.
Dalton, “Litigating Religious Land Use Cases”
In July, ABA Book Publishing released Litigating Religious Land Use Cases, by Daniel Dalton (Dalton & Tomich, PLC). The publisher’s description follows:
This book discusses how to litigate such a religious land use case on behalf of a religious 
entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment. While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.
Litigating Religious Land Use Cases is intended to provide practical advice from the author’s personal litigation experiences. Generally, a religious entity will use all available means of resolving a dispute prior to entering into litigation. In the instance that a case results in litigation, this book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the RLUIPA and the First Amendment.
Chapter topics include:
- The history of religious land use
- Constitutionality of RLUIPA
- Related religious land use claims
This book should serve as a useful guide for religious entities and the lawyers who represent them in navigating the challenges and uncertainties that inevitably surround a religious land use claim.
Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim
It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 (“Now what–what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”).
On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:
Justice Alito: Well is it your argument that providing the accommodation that’s requested here would violate the Establishment Clause
General Verrilli: It’s not our argument that it would violate the Establishment Clause. But it is our argument that you–in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.
43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That’s the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: “[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties.” 44
Of course, that the government disavows a claim does not mean that the Court can’t go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he “would suggest that we think about the position and the rights of the–of the employees[.]” Justice Kennedy then remarked that “the employees are in a position where the government, through its healthcare plans is…allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious–religious beliefs of the employer. Does the religious beliefs just trump?” 33
After a response from Mr. Clement, here’s what Justice Ginsburg said:
But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. And that was true of Sherbert and that was true of Yoder. The–and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.
34. Later in the discussion, Justice Kagan referred specifically to the “tangible harm[]” that women will suffer who don’t get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.
Supreme Court Agrees to Hear Muslim Prisoner Beard Case
The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.
The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.
Carpenter on Limiting and Empowering American Indian Religious Freedoms
Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.
Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.
Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.
The Tale of Psychic Sophie, Part II
Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday. Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel. Here’s a news report on the argument. A couple of highlights.
First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.” To which CJ Traxler responded, “How would you characterize the Book of Revelation?” Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive. Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive? I wouldn’t think so, but I’m not a free speech maven. But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day. We’re still waiting on Revelation. On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”
Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.” But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.” Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine. From Book IV, Chapter 3 of the Confessions:
There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.
Looking forward to the panel’s decision.
The Tale of Psychic Sophie, Part I
Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit. It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email. She offered these services from a small office within a larger office complex which included licensed mental health professionals.
District Court Grants TRO in Favor of Tennessee Mosque
On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).
Weinstein on RLUIPA’s Effect on Local Governments
Alan C. Weinstein (Cleveland-Marshall College of Law, Cleveland State University) has posted The Effect of RLUIPA’s Land Use Provisions on Local Governments. The abstract follows.
In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.