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Principle! At the Supreme Court!


To its credit, a unanimous Supreme Court held today that an Arkansas prison refusing to allow Muslim prisoners to maintain a short beard violates the Religious Land Use and Institutionalized Persons Act. This should be an easy case in light of Hobby Lobby, given that the burden was much more substantial and the justifications for the burden much weaker. But I wouldn’t have been shocked to see either a de facto Muslim exemption or an unquestioning deference to prison officials (which has not been unknown to the Roberts Court’s conservative members.) I’m happy that my concerns were misplaced.

Ginsburg’s concurring opinion, joined by Sotomayor, should be quoted in full:

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.

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  • David Hunt

    Ginsburg is a national treasure and she is exactly where she needs to be to best serve the nation. She’s the type of woman that makes me wish I believed in a god that guided human affairs so that I could could thank “him” for her.

    • humanoid.panda

      And yet, her not retiring after Obama won reelection and it became clear GOP are likely to win Senate in 2014, was an act of stupendous folly. People are complicated..

      • Latverian Diplomat

        Not really. Supreme court nominees were (stupidly) not covered by filibuster reform. No Obama nominee was getting on the court in 2014 either.

        • ThrottleJockey

          Proof please? If he could get in Sotomayor and Kagan he could get in a replacement for Ginsberg. I like her–a lot–but like many people in positions of power she’s held hostage by her own hubris.

        • MDrew

          So you’re guaranteeing that if a justice dies, there will be no replacement until after 2016?

          What about then, should Clinton win and the Senate not fall back into Democratic control (or even if it does, narrowly)? Will they confirm Hillary nominees?

          I think you’re wrong. If there were to be an opening, I think it would be filled within a few months, no matter what.

  • Derelict

    Oh noes!!!! Teh dirty Moooooslims have religious rights too!

    OBVIOUSLY Obama has something on Roberts, and the whole court has become nothing but a nest of liberal moles. Next thing you know, they won’t strike down ObamaCare!

    • Snarki, child of Loki

      The GOP controls the House, they should impeach Roberts.

      They might even get a bit of bipartisan support, if they ask nicely.

  • Joe_JP

    People can take this sort of thing too far. It was obvious from the oral arguments that the prisoner was going to win. Alito has been supportive of these sorts of religious claimants in various contexts for years. And, when some justices rejected the claims, they were generally evenhanded. One case in the ’80s involved a Jew wanting to wear a yarmulke. He lost.

    Ginsburg’s concurrence is great. Prisons is one place where the religious exemption rules make sense. For profit employers burdening employees are not in the same position.

    • awt76

      This. Pretty sure that this came up through Alito’s chambers and was championed by Alito in conference. It was an opportunity to deploy Hobby Lobby in what was clearly going to be a 9-0 case. Hence Ginsburg’s concurrence.

      • Snarki, child of Loki

        I look forward to the cases on behalf of prisoners who worship Zzzt-Zzzt, The Hacksaw God.

        • Joe_JP

          Another case did have members who were members of “satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian [white supremacist]” so who knows. Do they have a newsletter?

    • MDrew

      Why does it make so much sense in prisons? Do we not grant the need for more deference to authorities viz. prisoners’ constitutional and legal rights than in other contexts?

      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 others. The Ark. DOC seems to think it does affect their personally safety enough to have the regulation. Again: do we concede that we should grant them more authority being they’re trying to a secure a facility filled with convicted violent criminals, or not?

      The issue here is that this regulation is something of an outlier as I understand it. 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 line on Hobby Lobby. I don’t love that the very next case on the issue of religious exemptions has liberals lining up in favor of the exemption. 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. It also makes me wonder whether the timing and the decision to hear this case aren’t related to a Court conservative (read: led by Alito) desire to establish certain things about the principles invoked by both sides in Hobby Lobby.

      And I’m afraid the liberals walked right into that. So the guy can’t grow his beard as long as his religion tells him to in prison. Big deal. Stay out of prison, then. That doesn’t seem like that great a religious burden to me, compared to what I was arguing was not a heavy burden 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 idea given in the Hobby Lobby dissents, rather than just taking advantage of the narrow distinctions those dissents relied on, thus weakening them somewhat?

      This doesn’t argue against Scott’s point that conservatives were obligated by their Hobby Lobby (depending on your theory of the nature of law) to grant this exemption, and that it’s somewhat surprising that they did. But it does question whether the liberal position on the principles of the Hobby Lobby dissents isn’t a bit weakened as a result of their votes and opinions. After all, the owners of Hobby Lobby are not confined in a space in which the legal precedent says that the government is granted more deference to set regulations than it is most other places. I imagine that’s of significance to the Alitoites, and that we’ll hear more about it from them.

      This kind of thing is the basis for Scalia’s BS bragging about his record of going against his policy-outcome preferences as implicitly compared to that of liberals (BS because he grotesquely overplays his own record of such instances). Sometimes the liberals make it easy for him to do that kind of bragging comparatively though.

  • Anon21

    I’m not sure I understand what broader point Sotomayor is trying to get at in her concurrence. But there may not be one; she may just be pointing out some sloppy language in the majority opinion.

    • Joe_JP

      The Hobby Lobby opinion shows how religious exemptions can be applied too loosely, compelling state interests not respected etc. I think she’s just trying to be clear that this was an easy case, but there would be other harder ones where the prison wouldn’t need to provide an exemption.

    • rea

      Well, the broader point is that this plaintiff just wants to grow a beard. The analogy to Hobby Lobby would be more exact if prison officials were suing and claiming that their religious scruples meant that they shouldn’t be forced to allow beards.

      • Anon21

        I didn’t see Sotomayor’s concurrence as being pitched at the Hobby Lobby issue; I think Ginsburg (whom Sotomayor joined) said everything that needed to be said there, and very succinctly at that.

  • MDrew

    I’m a little dubious that it wouldn’t have been different if it had been a Muslim born somewhere in Asia with brown skin who had been given an Islamic-sounding name by his parents, rather than a white man born in America who had been given an Anglo name by his parents and converted to Islam.

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