The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Eric Rassbach from the Becket Fund – the public interest law firm that on Tuesday won the Holt v. Hobbs prisoner rights case – was kind enough to pass along his thoughts on what the case means for religious liberty more generally:
The Supreme Court has had quite a run of religious liberty cases in the last few years. Almost exactly three years ago the Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Last year it ruled in Burwell v. Hobby Lobby and issued important orders in Little Sisters of the Poor v. Burwell and Wheaton College v. Burwell. And it has started off 2015 with Holt v. Hobbs. In every case, the Justices ruled in favor of the religious plaintiff. In three of the five cases, the Justices were unanimous, while in the other two (Hobby Lobby and Wheaton) there were vocal dissents.
This raises several interesting questions: Why has there been a recent string of religious liberty cases? Why does the government keep losing? And what does Holt mean for religious liberty cases going forward?
Why has there been a recent string of religious liberty cases?
The answer to the first question lies in the trend of government expansion. Imagine a 3-D Venn diagram of fields of human activity, with the field of government regulation represented as a sphere, and the field of religious activity represented as another, intersecting sphere. Religious liberty conflicts arise within the overlap between the sphere of government regulation and the sphere of religious activity. When either sphere expands over time, the set of potential conflicts increases. When either sphere contracts, there is less overlap and less potential conflict.
New conflicts most frequently arise when the sphere of government activity expands: government seeks to exercise more comprehensive control over a field of human endeavor where religious people have already long been active. For example, the recent rash of litigation over the contraception mandate arose because the federal government sought to expand its control over the healthcare plans of religious organizations in a way it had never done before.
Sometimes of course the sphere of government shrinks, reducing the amount of religious liberty conflict. For example, once the draft was ended, the number of conflicts surrounding religious conscientious objection to military service sank precipitously. However, in recent years government expansion, rather than contraction, has been the rule, resulting in more potential religious liberty conflicts.
It is also sometimes the case that the sphere of religious activity expands, resulting in more conflict. This happens most frequently when "new" minority religions begin to be active in the United States. Thus a significantly disproportionate share of religious liberty conflicts involve "new" religious minorities (see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (Santeria plaintiffs seeking to engage in animal sacrifice); Gonzales v. O Centro Beneficente do Uniao do Vegetal (Brazilian spiritist church plaintiffs seeking to drink hallucinogenic tea); Cutter v. Wilkinson (Wiccan, Odinist, and "Christian Identity" prisoner plaintiffs seeking access to religious materials)).
Holt is an example of this trend: 50 years ago there were likely no observant Muslim inmates in the State of Arkansas, so the question of Muslim inmates' beards simply did not arise. Since a number of religious groups previously absent from the United States have recently immigrated to the United States (often due to persecution in their traditional homelands), the number of potential conflicts has gone up.
It is also worth noting that since regulations, rather than statutory text, tend to be the bleeding edge of the sphere of government authority, it is typically executive branch rules that end up triggering the disputes. This is true of all of the recent disputes that have come before the Supreme Court.
Although Hosanna-Tabor involved a congressional statute (Title VII), the driving force behind the litigation was a new EEOC interpretation, which the agency sought to enforce in court. In Hobby Lobby, it was a new set of federal regulations that gave rise to the litigation rather than the Affordable Care Act itself, which did not require health plans to cover contraceptives. And in Holt, it was the Arkansas Department of Correction's facial hair policy rather than a state statute that led to the conflict. Since government regulations grow at an even faster clip than statutes, the rate of potential conflicts can expand very quickly.
Thus the trends of growing government regulation and arrival of additional religious minorities in the United States have combined to increase the potential number of religious liberty conflicts. And since the trend of the expansion of government activity at all levels-federal, state, and local-shows no sign of abating, we can expect more religious liberty conflicts in coming years.
Why does the government keep losing?
Another trend that seems likely to continue is the government's overall losing streak. Why has the government kept losing these cases? Some would argue that that the stereotypes are true: the Court supposedly has a conservative cast and thus consistently rules in favor of religious groups, especially traditional ones. This is wrong for several reasons. First, as Eugene has already pointed out, even using a crude which-religions-win scorecard it is apparent that traditional religions fare if anything worse than "new" religions at the Court.
Second, this argument has little explanatory power unless one wants to cast all of the Justices as "conservative." The unanimous decisions in Cutter, O Centro, Hosanna-Tabor, and Holt show that religious liberty-both institutional and individual-enjoys across-the-board support among the Justices.
What's a better reason for governments' losing streak? Part of the answer lies in the extreme litigation positions taken by governments in religion cases.
In Hosanna-Tabor, the federal government took the position that the long-recognized ministerial exception simply did not exist. The Court called the federal government's position "extreme," "untenable," and a "remarkable view." (If anyone is aware of another case where the Solicitor General's litigation position has been called "extreme," "untenable" and "remarkable" by the unanimous Supreme Court, please feel free to say so in the comments. Hosanna-Tabor might be the only case.) In Holt, Arkansas asked for complete deference, claiming that judges in the "calm serenity of judicial chambers" had no ability to evaluate whether prisons could accommodate religious exercise.
Another part of the answer lies in the typical process of government regulation. Governmental agencies, which do not answer directly to the public, simply aren't inclined to compromise with small religious groups or religious individuals. Since there is little if any political price to pay, and members of minority religions are often without significant political power (as our Holt co-counsel Prof. Douglas Laycock has long argued), there is little incentive to compromise.
Put another way, government agencies will try to get away with as little accommodation as possible. In most areas of the law, government agencies can regulate on a because-I-say-so basis. But when federal civil rights statutes like RLUIPA and RFRA intervene, this approach fails and the government loses in court.
What does Holt mean for the future of religious liberty?
Eugene has already ably summarized today's decision in Holt here. I'll simply point out a few features of the decision that are relevant to the future of religious liberty litigation.
Today's ruling will affect many different arenas of religious liberty litigation. In the first instance, it will help prisoner plaintiffs in other RLUIPA cases. For example, the Becket Fund is currently suing the state of Texas over its refusal to provide some Jewish inmates with a kosher diet. The Department of Justice has a similar case against the state of Florida. Texas and Florida have made many of the "mere say-so" arguments that the Court rejected today. Holt will likely help Jewish inmates in Florida and Texas gain more secure access to a kosher diet.
Second, it will help plaintiffs in religious land use cases. Local governments often put roadblocks in the way of churches, synagogues, mosques, and other houses of worship. RLUIPA's land use provisions are nearly identical to its prisoner provisions-meaning that today's decision will make it harder for local bureacrats to give short shrift to houses of worship in the zoning process.
Third, it will help other RFRA plaintiffs. For example, the Becket Fund currently represents a Native American church that seeks access to sacred eagle feathers despite Department of Interior regulations. Those plaintiffs have been given a helping hand by this decision. This will also be true with respect to the non-profit HHS mandate cases, which are currently working their way towards the Supreme Court.
Fourth, it will help other plaintiffs-including those with non-religious claims-who are confronted with a "compelling governmental interest" affirmative defense from the government. Free speech and free exercise plaintiffs will be prime beneficiaries. For example, the Williams-Yulee case argued just this morning could well be influenced by Holt's explication of the strict scrutiny test.
There are several interesting doctrinal developments as well. I will note three with respect to the religious plaintiff's burden of proving a substantial burden, and four with respect to the government defendant's burden of proving its "compelling governmental interest" affirmative defense.
Substantial burden. With respect to substantial burden, the Court has clarified several issues that have often confused lower courts deciding religious claims.
First, "the availability of alternative means of practicing religion" is simply not relevant under RLUIPA. Governments can't force a religious plaintiff to substitute or trade off one religious practice for another.
Second, it is irrelevant that some religions have an analogue to the excuse of duress-divine credit a plaintiff may receive for trying but failing due to government coercion. Holt says that this does not reduce the burden on a religious plaintiff.
Third, the Court repeats the rule that "idiosyncratic" beliefs are just as protected as familiar ones. Government officials don't get to grade religious beliefs on whether they make sense to them.
Strict scrutiny. With respect to governments' affirmative defense under strict scrutiny, the Court has reaffirmed its "rigorous standard" from prior precedents.
First, governments cannot prevail simply by asserting a "broadly formulated interest" like "prison security." Instead, courts must evaluate the government's defense as applied "'to the person' – the particular claimant whose sincere exercise of religious is being substantially burdened." That means that courts must "'scrutinize the asserted harm of granting specific exemptions to particular religious claimants'" and "'look to the marginal interest in enforcing' the challenged government action in that particular context." For example, in the Florida and Texas kosher cases, Florida and Texas will have to prove their affirmative defenses with respect to observant Jewish inmates, not the entire inmate population.
Second, governments cannot satisfy strict scrutiny when their rules are substantially underinclusive – that is, when the rules make exceptions for "analogous nonreligious conduct" but not the religious plaintiff's conduct. What this means as a practical matter is that governments, not religious plaintiffs, must bear the risk of uneven rulemaking (which they control and can amend). In the McAllen eagle feathers case, this means that the federal government's many exceptions to the general ban on possessing eagle feathers without a permit will likely be fatal to the prohibition on certain Native Americans' possessing those feathers for religious reasons.
Third, governments will be held to a very high evidentiary standard. For example, in the non-profit HHS mandate cases, the federal government made a decision in all of the cases not to put any evidence before the federal courts. Although it invokes the rights of third parties, the government has not put on any evidence that a single person has been denied access to any drug or device. Instead, the government seeks to prevail in those cases based solely on its own say-so.
At the time, this may have made a certain amount of tactical sense – the government doesn't want to have to litigate these cases one by one, and what if it is hard to find actual evidence of third-party harm? But in light of Holt's requirement that the government actually prove its affirmative defense, the federal government's decision to put on even less evidence than Arkansas did may prove dispositive.
Fourth, whether other governments have been able to offer the accommodation will be a factor in deciding whether the defendant government has used the least restrictive means: "when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here…. RLUIPA, however, demands much more." This will also likely be decisive in prison kosher litigation, since the vast majority of prison systems provide kosher dietary accommodations with ease.
* * * In one sense, today's decision amounts to the Court's saying, "We really meant it when we said it the first three times": throughout the opinion the Court simply repeats passages from Lukumi, O Centro, and Hobby Lobby. In another sense, however, this decision heralds a new period of rigorous enforcement of federal civil rights statutes concerning religious practices. Governments would do well to take note and seek to accommodate religious practices whenever possible. And religious individuals and institutions should take heart: religious liberty is alive and well in America.