Minimum Beard, Maximum Deference


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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70 Responses

  1. Avatar Saul Degraw says:

    I remember reading Goldman v. Weiberger in Employment Discrimination or some other course in Law School. The Rehinquist Court allowed the Air Force to prohibit an Orthodox Jewish officer from wearing a yarmulke while/in uniform at work because the Free Exercise Clause did not apply as strongly to the Military or some such.

    My guess is that Goldman is out the window now. I think the military or at least the Army did this on their own. A few years ago there was an article in the Times about how the Army was letting Shiek recruits keep their ceremonial daggers and their turbans for training and beyond.

    What sort of non-custodial situations do you think this can come up in? How long before someone tries using this series to go against anti-discrimination laws? IIRC, the Hobby Lobby case explicitly mentioned that the decision did not overrule anti-discrimination laws.Report

  2. Avatar Don Zeko says:

    Great post. I particularly like your refusal to let an opportunity for a Sherbert pun go unused.Report

  3. Avatar James Hanley says:

    One quibble. My feed from LII describes this as a unanimous opinion, whereas you call it a 7-2 split. If the authors of the concurrences also signed onto the majority opinion, then unanimous is the more correct statement, no?

    That tiny little quibble of no substantive importance aside, I was glad to see all 9 members of the Court ruling in favor of the prisoner. I imagine the Court will eventually find out where it draws the line on the “but it’s against my religion” claims, and I’m happy for them to draw that line in a capacious manner (you’re right, that is a cool word). I suppose it can be argued that in a way it gives religious people more rights than non-religious people, but as one of those non-religious people I, at least, am quite willing to support quite a bit of leeway in protecting their religious beliefs.Report

  4. Avatar Stillwater says:

    this new flavor of Sherbert smacks of tremendous potential for cynical abuse.

    Closely held religious beliefs require my Sherbert to be abuse-free!

    I’m a bit confused about the Sotomayer-Wilgus bit. Are you saying that they failure of the other 8 to cosign implies that they take a wider view of d) than Soto does, in turn implying that they think the state must accommodate every “conceivable” restriction rather than merely the proposed restriction?Report

  5. Avatar Vikram Bath says:

    In an arena where states traditionally enjoy very, very substantial deference to make and enforce whatever rules they wish, individuals get to say, “But that’s against my religion” and cause the state to scramble for justification against the most stringent possible test and in all probability lose.

    Is there a Sikh male in a prison somewhere in the US? To my knowledge, they are supposed to carry a Kirpan dagger everywhere. I am guessing if that the government would win such a case.Report

    • Avatar dragonfrog in reply to Vikram Bath says:

      Sukhjinder Singh Basra sued the State of California and won over his right to wear long hair and a long beard (in his case he would have been allowed a 1/2″ beard, but got the length restriction overturned).

      I don’t believe he even tried to challenge any ban on weapons for a Kirpan exception, as it would clearly have been a waste of effort.Report

      • Avatar Vikram Bath in reply to dragonfrog says:

        Just a note on Kirpans: I bought one once. It’s amazing how many versions exist in an attempt to make things practical and non-threatening. The one I bought had a tiny little sheath, and the “blade” itself was a tiny, unsharpened, lump of metal. I’d be more scared of a straightened paperclip (though I assume paperclips are also banned in prison).Report

  6. Avatar dragonfrog says:

    What about Stewart v. Beach – is that sufficiently different that the third and fourth prongs didn’t enter into it?

    • Avatar Burt Likko in reply to dragonfrog says:

      I just scanned the opinion — it looks like this was framed as a damages action against individuals, not a claim for injunctive relief excusing the prisoner from the requirement of combing out his dreadlocks. Perhaps that’s because the need for the transfer of prisons no longer existed by the time the case got filed. I don’t think RLUIPA provides for money damages against individuals, only injunctive and declaratory relief against governmental entities.Report

      • Avatar dragonfrog in reply to Burt Likko says:

        I think he cut his dreadlocks off rather than delay the transfer closer to his ailing mother, so the specific requirement to allow the transfer without his cutting or combing out his hair was gone.

        At most I guess he could have won a precedent that it shouldn’t happen to others in future? I don’t know how that would work – would that be the “declaratory” part?Report

  7. Avatar zic says:

    accommodating petitioner’s religious be lief in this case would not detrimentally affect others who do not share petitioner’s belief

    +1, Justice Ginsberg.Report

  8. Avatar Kazzy says:


    Does invoking a particular case as precedent generally signal acceptance of that decision?Report

    • Avatar Burt Likko in reply to Kazzy says:

      “Acceptance” does not necessarily mean “approval,” I suppose. For instance, were I on the bench and presented with a marijuana possession case, I’d say that Gonzales v. Raich was controlling, binding precedent, even though I neither agree with that case’s reasoning (giving away a locally-grown product is not “interstate commerce” by any definition of that term that makes sense to me) nor like its outcome as a matter of policy (enforcing a prohibition against marijuana is a massive waste of the justice system’s resources and a missed opportunity to enhance tax revnue). Doesn’t matter a bit whether I like the case or agree with it, it’s the leading precedent for the legal proposition that the Federal government has the power to criminalize distribution of marijuana, so I’d cite it in my opinion if that were necessary to respond to a contention made by the defendant.

      Ginsburg’s concurring opinion is remarkable for the efficiency with which it signals Her Honor’s disapproval of Hobby Lobby.Report

      • Avatar Kazzy in reply to Burt Likko says:

        What makes precedent “binding” and “controlling”?Report

      • Avatar James Hanley in reply to Burt Likko says:

        The justices’ acceptance of it as binding and controlling. That is, it’s binding and controlling until a majority decide it’s not binding and controlling.Report

      • Avatar Francis in reply to Burt Likko says:

        To be less snarky about it, it depends on which court is asking the question. In general, precedent comes in two flavors: “controlling” and everything else. Everything else ranges from “persuasive” to “overruled”.

        Precedent is controlling when a directly higher court has issued an opinion that is decisive of the legal issue. So a California federal district judge is bound by the rulings of the 9th Circuit sitting as three-judge panels, the 9th circuit sitting en banc (11 judge panels) and the US Sup Ct. (Of course, if the district court judge doesn’t like the higher court ruling, she may find that her case does not fall precisely within the bounds of the earlier ruling.) The California judge is not bound by rulings out of other circuits; each circuit develops its own law.

        At the appellate level one 3-judge panel is really not supposed to overrule an earlier 3-judge panel’s ruling on a particular legal point. Only the en banc panel or the Supreme Court can overturn that decision. And as there is no higher court over the US Sup Ct, no precedent is controlling on it.

        When precedent is controlling, it is the job of the judge to acknowledge the existence of the precedent and decide the case according to that precedent. If the judge disagrees with the precedent, she is limited to explaining why she thinks the precedent should be over-turned. It is considered a serious violation of the canons of judicial ethics to ignore, mis-interpret or twist controlling precedent in order to rule the other way.

        Persuasive precedent is any ruling from any other court — another district judge in any circuit, or a Circuit opinion from another circuit, for example — that the judge finds persuasive. To the US Supreme Court, by definition all precedent is at most persuasive.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        If you’re John Roberts, you can invent something in one decision and cite it as controlling later.Report

      • Avatar Stillwater in reply to Burt Likko says:

        Well… yeah. John Roberts is controlled by the precedent of making shit up on the bench. He just can’t help himself, but now he’s got the law on his side.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        What’s with all this heat aimed at the Chief? He voted in the majority, but this isn’t his decision, and Hobby Lobby wasn’t his decision either. If there is fire to distribute, direct it at Justice Alito, that makes more sense here.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        Man, you gut one historic civil rights law …Report

      • Avatar Stillwater in reply to Burt Likko says:

        Just joking about Roberts freelancing as the 1 in the 4-1-4 ACA mandate decision.Report

  9. Avatar Tod Kelly says:

    I know this has nothing to do with the important Constitutional issues of this case, but my oh my those are some terrible, terrible reasons for not allowing inmates to grow beards.Report

    • Avatar Stillwater in reply to Tod Kelly says:

      Why prisoners need to be clean shaven unless they have a note from their doctor:

      1. They could be growing marijuana plants in there.
      2. Prisoners can’t take food outa the mess area!
      3. If they aren’t shaving then we know they got some sharp razor blades on em somewhere.
      4. Beards are only worn by people with something to hide, so if we make em shave they’ll be more honest with us and themselves.Report

  10. Avatar Mike Schilling says:

    I think this was a terrible, botched, stupid decision.

    Do not contradict me; I have a religious conviction against being disagreed with.Report

  11. Avatar Michael Drew says:

    Re: @zic’s +1 and just re: the Court liberals’ votes on this case in general.

    I’m guessing that Ginsburg is perfectly right about what the statute and precedent indicated here, so much so that she may have felt constrained in her vote. I’m also guessing Alito and the others who voted to hear this case the term after Hobby Lobby was decided knew this, and indeed that Ginsburg knew they knew this. Everyone knows what’s going on here.

    I am still made uncomfortable by the liberals’ votes here. I should probably get over it, because they are probably compelled by a need to hew to what would have been status quo pre-Hobby Lobby, which is a status quo for which they explicitly argued, and contrasted to the decision, *in* Hobby Lobby.

    Nevertheless, it seems to me that an opportunity to stand on broader principle (and again, they stood on narrower principle relating to precedent at a particular recent time instead, which I acknowledge is probably the right play; also they may not substantively affirm the broader principle I will articulate in any case) in full knowledge that the preferred outcome would be secure, has been given up here. Or, perhaps, it was expertly exploited by the opposing Hobby Lobby bloc.

    The principle in question would be the general one that religious exemptions to generally applicable laws should be rare and limited, notwithstanding the dictates of RFRA (“notwithstanding” here meaning “let’s work to establish a principled commitment to interpreting and defining the terms of RFRA, and for the matter the Free Exercise Clause and RLUIPA to boot, less “capaciously” and more restrictively, at least with respect to exemptions to general laws that have legitimate government interests behind them).

    To my way of thinking, it’s only a circumstance of fact, and an arguable point, that this man’s religious exemption doesn’t affect other prisoners. The Ark. DOC seems to think it does affect their personal safety enough to have the regulation. Do we believe they put it in place out of capriciousness, cruelty, or discrimination? I tend not to. And again, liberals: do we not concede that the precedent that grants them at least some more defense than the government has in other non-prison contexts, being that they’re trying to a secure a facility filled with convicted violent criminals is well-justified, or not? I do.

    The issue here is that this regulation is something of an outlier as I understand it. (Check me out on that, members of the Reality-Based Community.) What if the religious objection were to a very widespread prison regulation that seems to make a lot of sense on its face? Obviously, the answer then would be that the governmental interest would be that much more compelling and so should perhaps stand. And fair enough. But that makes no headway toward a establishing a clear liberal position on the substance of the questions of what a compelling interest is, what a substantial burden on belief is, what least restrictive means are, etc. for the purpose of establishing a commitment to the idea that religious exemptions to general applicable laws should be rare and limited (if liberals even want to establish that, rather than just want it to be the case when they do, and not when they don’t).

    That was the liberal line on Hobby Lobby. Okay, the line was really that, while we’ve moved a long way from Scalia’s “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” the limit on that movement has to be where non-believers’ rights begin. Ultimately, though, these cases always involve balancing the interests of certain religious believer against the interest of the government in protecting the interests of non-believers in that faith in some way. The way that gets worked out is where the sides come down on various scenarios in which the meanings in practice of “compelling government interest,” “burden on free exercise,” “least restrictive means,” etc. get hammered out.

    And I don’t love that the very next case on the issue of religious exemptions has the liberals all lining up in favor of the exemption, on the strength of the not insignificant but still somewhat murky distinction between ‘affecting non-believers’ and not doing so. That was always the issue. The law in practice gets decided on the specific cases. It didn’t take the liberals long, did it, to come back around to listening to the beating of their bleeding hearts when a particular religionist says that a law of general applicability burdens his religious practice so much that he is entitled to an exemption – even in a context of univesrally acknowledged, rightful greater deference to the government, which this religionist had every opportunity to avoid but subjected himself to by fairly gross misdeeds of which he was convicted. So they joined in granting him an exception to said law ([ETA:] possibly, I acknowledge, entirely in keeping with the letter of RLUIPA as given by precedent, RLUIPA being more generous with such exemptions than the First Amendment itself), because in their view the determination that beards of a certain length impact other prisoners’ safety is so preposterous it can’t be granted as compelling even in a context of unusual deference. And they did this even though the votes were likely going to line up so that he’d be granted the exemption however the liberals voted! It makes me wonder just how committed to the idea stated above (that religious exemptions to general applicable laws should be rare and limited) really is. Of course, I already should have been wondering that, since, post-RFRA, they never really showed that they were, but still, I can wish. Also, as I said, the timing of this to me makes it look very much like the Hobby Lobby majority too this case just in order to expose some of these difficulties for liberals in the implications of their dissent in that case.

    And I’m afraid the liberals walked right into it. I grant that the established precedent on RLUIPA might have given them no choice, given that they were so strongly arguing for a very particular status quo in Hobby Lobby. Fine. I simply concede the argument on that point.

    But on the policy merits here, I very much see this as at worst a case of being an outcome that;s worth sacrificing to principle (if you’re into that kind of thing). So the guy can’t grow his beard as long as his religion tells him to in prison. Big deal. *He’s in prison.* The authorities – local authorities – make the rules there more than other places; we all agree on that to one extent or another. If you don’t like that, don’t want to be subjected to it, stay out of prison, then. (That’s why it’s prison!) Don’t stab people. Etc.

    Beard length doesn’t seem like that great a religious burden to me in that context (prison!), compared to what I was arguing was not a heavy burden on free business owners in Hobby Lobby. How about sacking up and not just going with your bleeding liberal hearts on this one, and establishing some commitment to the broader idea given in the Hobby Lobby dissents, Court liberals, rather than just taking advantage of the narrow distinctions those dissents relied on, thus arguably weakening them somewhat?

    This vote at a minimum fails to advance what I take to be the liberal position on the principles of the Hobby Lobby dissents. I understand that they take the difference to be, as it were, legal externalities of these exemptions, such that they don’t affect non-believers. But at some point, exemptions to some prison regulations will do just that, and it will feel especially so to any additional prisoners who get shanked as a result. Moreover, the established legal presumption here is a qualified one in favor of prison administrators who are charged with maintaining secure correctional facilities. However compelling you may see the government’s interest in offsetting the natural cost of reproductive health care as it falls on women, certainly maintaining secure correctional facilities falls right in there as pretty compelling, too. I imagine that distinction is of significance to the Alitoites who supported hearing this case at this time, and imagine that we’ll hear more about how the Court’s liberals reacted to it from them going forward.Report

    • I realize this should probably be a post. I’ll endeavor to make it one. I kind of want to hear from people on whether I’m misguided on it, though. I’m also a little shy to post on this topic when Burt already has done such a fine job of it, and there are so many lawyers and people who have studied con law and the Court as an institution so much more extensively than I have. It’s also a bit of an inside-the-center-left laundry-airing exercise that may be of somewhat limited interest outside it, as much of this concern will to many outside of that orbit will just be seen as confirmation of the wrongness of the (or a particular) liberal view of the issues in Hobby Lobby.Report

    • Avatar James Hanley in reply to Michael Drew says:

      I find it interesting that any liberals would be uncomfortable with this case. Liberals overwhelmingly objected to the Smith decision, and this case would be expected to satisfy them as a contra-Smith type ruling.

      Probably that’s attributable to the intervening Hobby Lobby ruling, but if so, I’m not sure that’s an appropriate response to that ruling.

      The argument that a liberal position would more tightly constrain religious freedom, that the appellant is in prison, so “big deal,” is, to me, at odds with the traditional liberal position. It very much echoes conservatives to say if you don’t want your rights constrained then stay out of prison. Does it really make sense to use conservative tropes to push a “liberal” outcome that conflicts with what liberals have usually defended as preferred outcomes? Is Hobby Lobby really so egregious that traditional liberal positions should be abandoned to undermine it?Report

      • I suspect part of what you’re seeing is that back in the mid-1990’s when RFRA enjoyed enormous bipartisan support, religion was less of a rally-pole for the partisan right. Alsotoo, Employment Division v. Smith was decided by Scalia, and was perceived as simultaneously “punching down” on Native American religion, and wedging in a pillar of support for the War on Drugs, so invoking religious liberty as a thrust against that probably felt pretty clever to some partisans of the left. Now, there is a perception that certain elements of the politically-active religious are going beyond seeking freedom to worship as they please and instead seeking to use the law to specially privilege their beliefs and religious institutions. Is that perception accurate? YMMV, but it does seem to me that the political cleavages have rearranged somewhat since the Clinton Administration.

        Also, note that all Nine Justices voted in favor of this outcome. Maalik gets his beard, because that’s his religious practice. I agree with the result in this particular case. My wish is for some sort of limiting principle, because Scalia wasn’t just making crap up in the Smith case: if everyone can get out of any law by claiming “That’s against my religion!” we’re not merely creating an escape hatch to accommodate religious freedom (which is good) but rather taking away the idea that the law applies to everyone. I think the left sees this to a greater degree than the right because, as I muse in the previous paragraph, the left perceives a political push to privilege particular religions — and a resulting political disadvantage to themselves.Report

      • @burt-likko

        I think it was mainly the double wammy in Smith of the very-minority religion combined with the unsympathetic to liberals (and now to many others) government aim of drug control (via prohibition) that got everyone to line up behind RFRA as a reaction to Smith. Also, a Clinton-led culture in the Democratic Party at that time of showy demonstrations of sympathy to religion in general (especially traditional and evangelical Protestantism and Catholicism) to counter the perception of a party of Godless hippies. Also, just generally it being twenty years ago, when the broad trends toward secularism hadn’t advanced as much as they have today, so that much, much more even of the Democratic establishment was sincerely devoutly religious, or at least sincerely religious, than they are today.

        Ultimately, I do acknowledge that I’m arguing more for a move back from the pre-Hobby Lobby status quo than I am just a return to it. Ginsburg has me dead to rights on what that status quo actually was. I think liberals, if they are going to hold to their true motivations on Hobby Lobby, need to go back and take another look to see if Scalia’s line in Smith was really so objectionable, because in my view, while I do see the distinction Ginsburg sees between HL and Holt (does the exemption affect others?), I don’t think it is not going to be a practical or durable one, because that was always the issue with religious exemptions. It’s not really a new line, just a new phrase indicating liberal discomfort with the direction that the free exercise reaction to Smith, both jurisprudentially and in the form of RFRA and similar laws and their interpretation have now taken. That line will just be washed away by the realities of the cases that come up on the question, and by the more established standards of compelling interest, significant burden, least restrictive means, etc.Report

      • Avatar James Hanley in reply to James Hanley says:

        I agree the left sees that push occurring. But they need to ask themselves if they’re really willing to abandon their own historic principles in the face of that push.

        From my own perspective, of course, this isn’t really problematic. My best-of-all-possible-worlds outcome would be that a lot of laws have so many exceptions that they get construed as discriminatory toward the non-religious and get junked altogether.

        The HL ruling doesn’t really bother me, for example. I’m a bit dubious about it, because I’m still undecided on whether a closely-held corporation should get that treatment or get the treatment of a public-stock corporation. But in the uncertain case I’m more inclined to go with the liberty protection.

        But even HL includes at least some limiting principle. There’s no indication that a GM or Nike can get that kind of protection. It’s limited to much more private businesses and private individuals, and I’m of the mind that forcing someone to violate their religious beliefs is an egregious act.

        And if we’re being honest, we know pretty well what most religious beliefs really are, and the costs of litigation are going to mitigate against many frivolous claims. That is, mostly we’re going to be able to identify frivolous belief claims (my religion says I have to drive on the left side of the road, for the right is unholy), and few people are going to be driven to pay the cost of pursuing clearly frivolous claims. So what we’re likely to get, overwhelmingly, is cases where someone’s real belief is touched, and in those cases I argue that we ought to give them space.

        From the liberal side, it appears to me that there may be a shift from “religious freedom, unless overriding it is critically important” to “religious freedom, unless it is inconvenient to public policy.” Legally, of course, that would map somewhere onto the distinction between compelling government interest and a legitimate government interest. Not that I think liberals are likely to slide all the way over to simple rational basis review, but I prefer we hold tightly to strict scrutiny.Report

      • Avatar zic in reply to James Hanley says:

        Read Ginsberg’s dissent again: religious freedom when it’s your actions; not when it’s someone else’s actions; they have their own beliefs. The beard is his own. The contraceptives would be used by somebody else, not by the owners of HL. It’s not their decision; it’s somebody else’s belief.

        I do not know why this continues to slip out of so many people’s grasp.Report

      • Avatar j r in reply to James Hanley says:

        I do not know why this continues to slip out of so many people’s grasp.

        Everyone grasps it. A lot of people just don’t agree that failing to provide something is the same as actively prohibiting it.Report

      • My best-of-all-possible-worlds outcome would be that a lot of laws have so many exceptions that they get construed as discriminatory toward the non-religious and get junked altogether.

        What do you think of this, @burt-likko ?

        Should our vision of Congress’ duty to assess potential legislation for violations of the limits placed on itself by the constitution involve parsing laws that are not meant to prohibit the free exercise of religion for any potential impact on religious exercise, and should it seem that if there would be significant enough impact that assuring the proper exemptions in the text would essentially create a document that would be discriminatory against the non-religious, always decide not to pass said legislation? Or, failing that, should the courts endeavor to seek this outcome?

        This is about as starkly as one can put the issue. Well done, James.Report

      • The blade he could hide in a beard longer than X could be used on somebody else, so it potentially just as much affects others other than the believer seeking the exemption.

        The issue is whether a quarter-inch limit is so beyond the pale of reasonable discretion that we have to overturn a presumption of deference that’s established. As with the limits on protesting outside abortion clinics, my inclination is, once we’ve granted the basic reason for the regulation, to give deference on the particulars of it.

        Either way, it’s not as clear a difference in principle as you or Ginsburg suggest, @zic . Other prisoners’ interests (in personal safety) are very much at issue (I believe the DOC has that as their legitimate aim here); all that’s in question is the reasonableness of the authorities decisions as to the particulars. It’s really just a coincidence of fact that this regulation appears to be a bit past the line of appropriate discretion under RLUIPA, and that these authorities chose to be south hardasses about it. It could have been otherwise.Report

      • Avatar James Hanley in reply to James Hanley says:

        for any potential impact on religious exercise

        If I might, I would soften that “any,” since I do recognize that there is both a class of compelling interests and a class of minimal impacts, and the latter in particular need not considered. For example, a noise ordinance banning the tolling of church bells prior to, say, X a.m. (without any intent of getting pinned down on a precise hour!), or limiting the volume of a mosque’s call to prayer between the hours of Y p.m. and Z a.m.)

        But that’s a minor quibble, not a fundamental disagreement.

        I hesitate to discuss this issue again with you, since last time you lied about what I was saying. But I will say this. First, you continue to write as though receiving something from someone else (or having someone contribute to something one receives) was a right. One can make that argument, but it cannot be made in terms that absolutely demonstrate its truth, and others continue to argue the opposite, that there cannot be a right to have others contribute to your needs. To say that people still “do not get” it is to fail that they do get your point, but that they still believe you are incorrect.

        Most of all, in that, it seems to me that you do not grasp what others see as a fundamental distinction between saying “You may not have that” (a ban) and saying “Your employer does not have to provide that” (not a ban). Or maybe you do, and you reject that distinction? But that distinction is fundamental to the position of your critics, and you can’t just wave it away (or you can, but understand that just claiming the distinction is not relevant or important is not a persuasive argument to your critics).

        Second, since, as far as I can tell, everyone agrees that sole-proprietorships and non-profits with a primarily religious focus (such as a church) should not be required to contribute to birth control, your argument that it is outrageous and abominable (my words interpreting you, of course, not a claim that those are your particular words) for HL to not provide contraceptive care are thereby weakened. We have already agreed in our public discourse that there is a class of organizations that do not have to provide contraceptive care to our employees, so the bare fact of not providing it cannot stand as a true outrage (unless you are going to attack those exemptions, too). We are simply quibbling over the exact definition of that class, and exactly what types of organizations are within, and which are without, that class.

        TL/DR, your “they don’t get it” claim is false. They don’t accept it, and for reasons that are not obviously invalid.Report

      • Avatar zic in reply to James Hanley says:

        @j-r the HL decision wasn’t rooted on ‘not providing,’ though that’s a big deal to you, I know; it was that there was another method of meeting the requirements of the law — of providing women with a full slate of reproductive coverage in their health insurance (which had a long history of discriminating against women).

        So no your bit of insight here has nothing to do with things; ‘providing things’ was not and is not the standard of the HL decision; it presumed insurance would ‘provide’ via some other means.Report

      • Avatar zic in reply to James Hanley says:


        again, read what Ginsberg wrote. You’re religious freedoms do not, in my opinion (and two SC justices) have the right to infringe on mine; shaping laws to provide some exercise of belief that is forced on others, despite their beliefs, is a violation of someone’s religious freedom.

        That’s a most basic, simple, and individual right — to be protected from someone else’s religious beliefs. You cannot force your 18-year old daughter to wear a head scarf, you’re son to circumcise his son, your mother-in-law to refrain from eating bacon, or you father to pray at certain times of day. It’s what’s going in in France right now; where the boundaries of respect are under examination. One extreme would mean all those Jesus sculptures and paintings in churches the world over would have to be removed; they’re all graven images of a prophet. That’s the heart of the issue — how religious belief extends beyond your own practice to what others do.Report

      • The “hide-a-blade-in-your-beard” issue was dismissed as something between a fever dream and a desparate concoction at every level of the litigation. Rightly so. Add to that the fact that the ingenuity of prisoners can render literally anything at all into a weapon, and the fact that this rule didn’t address head hair… the court treated this “justification” of the no-beards rule with the respect it deserved.

        On to the more serious question — will the super-Sherbert rule result in a complex of laws so riddled with exceptions that effectively they discriminate against the non-religious? I suspect that the political process will self-correct before it gets to that state, but yes, that’s within the realm of concievable possibility. Will the transaction costs of litigation weed out non-frivolous claims of religious exemptions to various laws? A little bit, but less than one might think. As the super-Sherbert rule gains profile and dominance, it will be invoked more and more until its legal limits are reached, or until the political process observes abuse and corrects. My concern in that regard is that religion itself has become a partisan rallying pole, such that you get Republicans in favor of religion (even that Muslim religion) because pro-religion laws benefit Christians, and Democrats wind up oppositionally polarizing against it and it just makes our society that much more tribal because it turns out there are Republican atheists and Christians who are also Democrats and all permutations of politics and religion do not preclude the ability of people to wish in good faith to better society for all and to live together in tolerance and mutual respect for one another without abandoning one’s own beliefs. That sort of rule which erodes the ability of differing kinds of people to live together strikes me as dangerous.Report

      • @james-hanley

        Like with the ‘always’ thing, I was just trying to get the spirit of the thing across. Your precise meaning here is my meaning.Report

      • Avatar zic in reply to James Hanley says:


        My concerns is religion used to enforce misogyny and racism.Report

      • I would tend to be a little more sympathetic to the concerns of those making the rule here. As two lower federal courts were. Not that that justification should prevail, but just not dismissing the concern so much to say that the authorities were not at all motivated by concern for the interests of nonbelievers in maintaining this regulation, as @zic and Ginsburg seem to.

        Is your view that it was flat-out frivolous, @burt-likko ? What’s your account of why it was created, and why it was maintained for years, and why two lower federal courts upheld it?Report

      • …From my perspective, if we are granting that the concern about hiding things in the beard is valid but that a quarter inch is too short to hide anything in, well, that would kind of be the point of a regulation intended to keep bears too short to hide anything in, wouldn’t it? Enforcement won’t be perfect, so if the allowance is a half inch, surely authorities are concerned about guys that will have three-quarter- and inch-long beards in reality. I would be too. That’s also kind of my view on protecting people trying to get into abortion clinics. Once we’ve granted the need to retract speech to do so, let them do so enough to get the job done.

        The issue of non-beard hair, though, is a fair one, and I wonder what the guards said to that.Report

      • Why was the no-beard rule there, for reals? Several candidates present themselves:

        1. Bias against beards. Turns out, that’s a thing.
        2. Bias against Muslims, if the warden knows or believes that Muslims must grow out their beards.
        3. Fear that a beard will become a grabby-point in hand-to-hand fighting amongst prisoners. (Seems to me that for the callous prison administrator, this problem is self-correcting.)
        4. Demonstration of ability of prison to impose control upon intimate areas of prisoner’s life, aka “Respect my authoritaii.”
        5. Policy inertia, aka “We’ve always done it that way and who are you to tell us to change?”

        But to really answer that question will require speculation.Report

      • Avatar Michael Drew in reply to James Hanley says:

        #4 seems to me the most likely non-sympathetic reason. But, again the whole point of the establishment in jurisprudence of the deference that is established for people making rules in prisons is to try to see their reasons sympathetically and treat them accordingly. I happen to support that inclination in law in this case So, what I’m trying to figure out is what the courts made of the Arkansas DOC’s reasons for this regulation, coming at it sympathetically, and why were they not granted deference? (More the former than the latter; I get why the latter happened, and I don’t strenuously disagree that on the merits this probably was too unjustified a rule to be deferred to. Maybe.)Report

      • Avatar Michael Drew in reply to James Hanley says:

        …#4 for the creation of the rule, and #5 for refusing to revisit it, I suppose.Report

      • Avatar Don Zeko in reply to James Hanley says:

        @james-hanley But this is stretching things a fair bit, I would say. Hobby Lobby wasn’t about welfare; it was about an employer refusing to provide the compensation that it was legally required to provide to its employees for their labor. I don’t see any reason that it should be legally distinct from a business citing religious reasons for refusing to provide overtime pay to its employees or worker’s compensation benefits. So I don’t see the problem Zic’s framing. In return for their labor, HL’s employees have a legal right to health insurance that includes birth control coverage with no co-pay. That you have a problem with the law that establishes this right on policy grounds ought to be beside the point.Report

      • Avatar Michael Drew in reply to James Hanley says:

        …So yeah, not ‘why the reg for reals,’ but according to you, ‘why the reg on an account where their reasons are assessed sympathetically as deference instructs us to do, but that still fails to be justified, even by a deferential standard.”

        Ie., no amount of deference would justify creating the rule if the reason for it was #2. But deference, AFAICT, doesn’t just mean deferring (or not) to the rule more than you otherwise would; it means giving reasons that would hold some wtre for you more of a hearing than your true inclinations might tell you to do, and then upholding or striking the rule *in light of those reasons* – and by a deferential standard! (I mean, isn’t that what deference means ina context like this? Because you’re never going to show much deference if you don’t allow your inclination to think about whether it’s reasons 1 or 2 to be affected by the instruction to show deference, because even deference can’t really justify #2, for example. It seems to me an instruction to show deference says to discount #2 absent evidence telling you to do otherwise. (For example.)

        So what I’m asking is, on this method of assessing reasons – sympathetically because we need to defer (to some extent or other) because that’s what precedent says – what is your account of the authorities’ reasons for the regulation that nevertheless is not enough of a justification for it to stand – on a deferential standard, no less?Report

      • Avatar Don Zeko in reply to James Hanley says:

        And before Zic jumps in to point this out, I would argue it’s worse than a company refusing to provide overtime or WC benefits, because refusing to cover birth control with no co-pay has the effect of targeting the deprivation of benefits on a particular suspect class of employees: women.Report

      • Avatar James Hanley in reply to James Hanley says:


        Given your vile misrepresentation of my argument on the “Short Answer: No” threads, I will have no further discussion with you.Report

      • Avatar Michael Drew in reply to James Hanley says:

        …Incidentally, did Breyer write on this? This seems right up his alley.

        Where has he been lately? He doesn’t seem to have had much to say independently of interest on a lot of the major cases of this dramatic Obama-Roberts era in Court history, during which he is one of the more senior justices. Sort of disappointing.

        I guess he got really excited about a textual interpretation debate with Scalia over recesses. Eye-grabbing stuff, that.Report

      • Avatar Michael Drew in reply to James Hanley says:

        I’m sure it was truly vile. Good word.Report

      • Justice Breyer has authored one majority opinion so far this term, which was published yesterday. Teva Pharmaceuticals v. Sandoz seems to be moderately-big news in the world of patent law, but I’m not particularly well-versed in patent law so I don’t feel comfortable opining about it absent further education.

        Chief Justice Roberts has done a pretty good job these past several years of distributing majority opinions so that all nine of the Brethren get approximately equal numbers of opinions authored under their names. So it’s very likely that Breyer will get several more opinions this Term; there just aren’t any more as of today’s date.Report

      • Avatar Michael Drew in reply to James Hanley says:

        Thanks for the fill-in on that, Burt.Report

      • Avatar j r in reply to James Hanley says:

        @j rthe HL decision wasn’t rooted on ‘not providing,’ though that’s a big deal to you, I know; it was that there was another method of meeting the requirements of the law — of providing women with a full slate of reproductive coverage in their health insurance (which had a long history of discriminating against women).
        So no your bit of insight here has nothing to do with things; ‘providing things’ was not and is not the standard of the HL decision…

        From the SCOTUSblog:

        Holding: As applied to closely held corporations, the regulations promulgated by the Department of Health and Human Services requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act.

        I am not sure why it’s so hard to admit that this is not a misunderstanding, but a disagreement.Report

      • Avatar zic in reply to James Hanley says:

        Given your vile misrepresentation of my argument on the “Short Answer: No” threads, I will have no further discussion with you.

        Ha. That’s really funny. Doesn’t really matter if you’re delicate sense of honor is offended by me; you’ll find someone else to target before the days over, and I’ll be equally amused. It just happens, doesn’t matter which way the light shines. Too bad, really, because you have a decent head on your shoulders when you’re not pursuing being offended as an art form.Report

  12. Avatar KatherineMW says:

    I’m now leaning towards agreeing with what Jaybird has said on previous threads about extending an equivalent of ‘religious freedom’ to non-religious people. If someone’s religious belief doesn’t require any doctrinal support to qualify as a belief in religious freedom court cases, then drawing a line between ‘moral convictions of religious people’ (protected) and ‘moral convictions of irreligious people’ (not protected) sounds a lot more arbitrary.

    On the other hand, I still feel that such an expansive definition of the right to freedom of religion/conscience can be wildly abused by people to claim that any law they disagree with is violating their freedom of religion.Report

    • Avatar Burt Likko in reply to KatherineMW says:

      Quakers might refuse to pay taxes because a substantial percentage of their tax money goes to buy weapons of war and pay the salaries of soldiers who use those weapons in war. Do they get a religious exemption, an ability to deduct a portion of their taxes?

      And if Quakers get an exemption, what about pacifists who happen to also be atheists?

      And if Quakers get an exemption for war materiel, what about other religions, or other moral contentions?

      I suspect that this will be found over the line — you have to pay your taxes even if you don’t approve of everything the government spends your tax dollars on, because your remedy for Congress spending your money in ways you don’t like is to elect different representatives. But I can’t see how to get there under the super-Sherbert rule currently prevailing, absent writing in an arbitrary exception that does not yet exist.Report