While waiting for what I am sure will be Marc's more thoughtful and insightful comments about today's welcome, clear, and correct decision in Hobbs, I've gathered a few of my own:
First, the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It covers the necessary bases, and no more. The language is clear and functional. (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.) One knows, at every point in the analysis, where one is.
Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so as to provide no more protection than did some of the Court's earlier First Amendment cases. Here, he rejected the notion that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.
Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions. Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'" So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.
These last three points, together, are very helpful, I think, in helping us think more clearly about the idea of "substantial burdens" in the accommodation-of-religion context. What it is that we are asking about when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility. We are asking, instead, about the nature of the government's imposition on the sincerely asserted belief. There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is an important one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics by $.01 would not impose a "substantial" burden on religious exercise. Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial. And, it is.
Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a 'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened." And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.
In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion. They wrote:
Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.
While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I wish one of the Justices had. The claim that it violates the Establishment Clause to accommodate religion in ways that impose any costs or burdens on third parties is one that, of course, is made and believed by a number of very smart people, but I do not think it is correct. The Court has not clearly established such a general rule; that is, the precedents and quotes that are invoked in support of this claim do not, in my judgment, clearly support such a rule. As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.
Finally: today's opinion offers a very, very welcome counter to the unfair and mean-spirited notion -- one that is, I'm afraid, getting a lot of purchase in some quarters -- that concerns about "religious liberty" are "dog whistles" or "fig leaves" for "bigotry", and so can be dismissed as such. Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable. Many others will not. We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.
And . . . congratulations to the Becket Fund for Religious Liberty and to Prof. Doug Laycock.
Sunday, January 18, 2015
I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution." I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist. And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court: Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief. Here's the abstract:
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
