Tuesday, January 20, 2015

"Justice Ginsburg explains everything you need to know about religious liberty in two sentences" (Ian Millhiser)


Plus: Justice Nino daydreams about mandatory polygamy

"Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner's religious belief in this case would not detrimentally affect others who do not share petitioner's belief. On that understanding, I join the Court's opinion."
-- Supreme Court Justice Ruth Bader Ginsburg, ruling
with a unanimous Court today in
Holt v. Hobbs

by Ken

The case itself, this Holt v. Hobbs, turned out to be so simple constitutionally that not only was the Supreme Court's verdict unanimous, but even dim bulb "Sammy the Hammer" Alito actually got it well enough to explain it almost right in the Court's ruling.

The "almost right" refers to the distinction Justice Ruth Bader Ginsburg understood was necessary to set forth, which she did in the two sentences quoted above, the two sentences in question in Ian Millhiser's ThinkProgress post "Justice Ginsburg explains everything you need to know about religious liberty in two sentences."

The one tricky thing about the case was that it called on the Roberts Court to apply the religious liberties it has become so protective of to a non-Christian. And this court, in common with the far-right-wing ideology it now champions, while pretending to be great believers in "freedom," in fact generally supports only the precise kinds of freedom for the precise kinds of people it believes are right -- meaning, usually, Right. However, in this case even the easily fooled Sammy the Hammer wasn't fooled.

The case concerns a Muslim inmate in an Arkansas maximum-security prison, one "Gregory Houston Holt AKA Abdul Maalik Muhammad," who claims that preventing him from growing even the half-inch beard he's willing to settle for violates his religious requirement to have a beard, without the legal justification in terms of actual harm required by the federal Religious Land Use and Institutionalized Persons Act. And Justice Alito agrees in his ruling that Arkansas prison officials haven't met the test of RLUIPA, to provide credible examples of how allowing the limited beard imposes a security burden on the prison.

The justices devoted a fair amount of questioning to the half-inch-beard standard, understandably wondering if there is an enforceable standard. Justice Ginsburg began by raising the utterly reasonable question: "If this prisoner wanted to have a full beard, would RLUIPA require that the prison administration allow him to do that?" Again, it's a fair question, even though, as the petitioner's advocate pointed out, 40 other state prison bureaus allow beards without any restriction of length, and it would seem under RLUIPA that it's the prison's burden to establish the dangers of the requested beard. But Justice Scalia, pointing out rightly that the actual Islamic requirement would be for a full beard, not a half-inch one, pursued his questioning with the analogy of a hypothetical religion that requires polygamy, and whether that requirement would be satisfied by allowing just two wives.
Now, let's assume in the religion that requires polygamy. I mean, could ­­-- could I say to the prison, well, you know, okay, I won't have three wives; just let me have two wives. I mean, you're still violating your religion, it seems to me, if he allows his beard to be clipped to one ­­ one inch, isn't he?
Again, there's a legitimate issue thrashing around in this thicket, but it's couched in such a whacked-out form as to raise two obvious questions: [1] Would Justice Scalia conjure such a bizarre analogy in discussing possible limitations of a Christian religious requirement? [2] What the hell is wrong with that man?


. . . in his opinion that the Arkansas prison folks had failed to make the kind of need-based case justifying a religious infringement which would be required under RLUIPA, and that's pretty much the end of the story.

Except that, as Ian notes, it's not quite the end of the story. At least it wasn't for Justice Ginsburg. Ian explains (links onsite):
Though Justice Ruth Bader Ginsburg joins Alito’s opinion, she also penned a two sentence concurring opinion explaining why Tuesday’s decision is a proper application of an individual’s religious freedoms — and why she believes that the Court’s birth control decision in Hobby Lobby was erroneous. “Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc.,” Ginsburg explains, “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.”

Prior to Hobby Lobby, the Court’s precedents honored a careful balance between religious liberty and the legal rights of others. People of faith have robust rights to honor their beliefs and act on their conscience, but they couldn’t interfere with someone else’s legal rights. Indeed, Hobby Lobby’s claim that they could defy a federal rule requiring them to include birth control in their employee health plan was especially weak because Hobby Lobby is a for-profit business. As the Court held in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Unlike Hobby Lobby, Muhammad sought a concession to his faith that has no impact on anyone other than himself. As Alito’s opinion in Holt lays out, the prison’s concerns about the consequences of allowing him to grow a beard were unwarranted. And no one else will have to do anything with their facial hair (or, for that matter, lose access to important medical care), because Muhammad will be allowed to grow a beard.
Score a good catch for Ian, I would say, and a good catch for Justice Ginsburg.

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