The Supreme Court issued its opinion in Holt on Tuesday, holding that prison regulations that prevented a Muslim inmate from growing a short beard for religious reasons violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a form of RFRA that applies to state prison inmates as long as the state facility accepts federal funds (which almost all state facilities do). There are a couple of interesting things about the opinion, which was unanimous (with two separate concurrences by Justices Ginsburg and Sotomayor).
The first, and most important, is that the opinion in Holt is further proof that the majority of the work in a RFRA or RLUIPA case is now located in the compelling interest/narrow tailoring part of the test. The initial elements (that the affected activity be a form of religious exercise, that the plaintiff be sincere in his religious motivation, and that the burden be substantial) continue to be lazy gatekeepers.
Why does that matter? The bottom line is that it leaves the answer to the question of when someone’s religious rights are being burdened mostly up to them. The government might still win a case if it’s doing the burdening for an important reason or it can’t be avoided, but Holt is yet another case in which, like it did in Hobby Lobby, the Supreme Court pays little attention to determining whether or not a regulation is actually a burden on someone’s free exercise rights. And because of the way the doctrine works, it’s harder for the government to satisfy the rest of the test once the burden has been established.
Part of that low bar is due to the fact that the opinion continues the slippage between the concepts of sincere religious belief and substantial burden that were evident in Hobby Lobby as well. The Court notes that the state has not disputed the sincerity of the prisoner’s belief that his religion requires him to grow a beard. It then turns to the substantial burden analysis, but simply states, quoting Hobby Lobby, that the policy requiring the petitioner to be clean-shaven means he must “engage in conduct that seriously violates [his] religious beliefs.” There is no discussion of why not being able to grow a beard when one believes one’s religion requires it is necessarily a substantial burden. Does it have to do with how important the plaintiff believes the requirement to be? But if that’s the case, then any burden a plaintiff claims (or at least cares enough about to litigate) would be substantial.
Please note, I’m not arguing about whether or not having a beard is a central element of Islam. And I realize that the free exercise in question need not be “central” to any religion for it to qualify for RFRA or RLUIPA protection, under current jurisprudence. What I’m trying to highlight is the erasure of a distinction between a plaintiff’s sincere belief (which is a question of fact, whether or not a court chooses to investigate it) and the question of whether a burden is substantial, which should be a question of law that is not determined by the intensity of the plaintiff’s subjective spiritual experience. Or is the severity of the punishment what determines the substantiality of the burden? The Court says the petitioner would be subject to “serious disciplinary action” but does not specify what that would entail.
Again, I’m not trying to argue that a beard is not an important part of the practice of Islam in general, or this petitioner’s particular understanding of the religion. I’m not even saying that the Court got the case wrong here; in fact, I think it’s probably the right outcome. But the fuzzy relationship between sincerity, exercise, burden and substantiality means that the pressure will continue to intensify on the compelling interest/narrow tailoring analysis to do the majority of the recognizable legal work in the analysis of RFRA and RLUIPA claims.
The second interesting item is Justice Ginsburg’s concurrence, which she uses to state that her joining the majority opinion depends on the fact that there are no third-party harms at issue in this case. In so doing, I think Justice Ginsburg is trying to remind everyone that third party harms—a Hobby Lobby employee losing reproductive health coverage as a result of her employer’s beliefs, for example—should be a relevant consideration for RFRA and RLUIPA analyses. This is particularly important because RLUIPA case law, thus far, is the case law we have on the RFRA/RLUIPA standard that actually pays attention to third party harms.
Unsurprisingly, the courts have been fairly willing to recognize third party harms when it comes to deference to a government’s decisions in the prison context (unlike when it comes to reproductive rights, as in Hobby Lobby). Justice Ginsburg’s concurrence, therefore, reads to me as an attempt to draw attention to that aspect of RLUIPA case law and to maintain its relevance, despite the fact that it didn’t do as much work as one might have hoped to protect third parties in Hobby Lobby itself.