JURIST Guest Columnist Steven Smith, of the University of San Diego School of Law, discusses the significance surrounding the decision made in Holt v. Hobbs and our nation’s commitment to religious freedom …

In Holt v. Hobbs [PDF], the US Supreme Court methodically applied the Religious Land Use and Institutionalized Persons Act (RLUIPA) and ruled that a Muslim inmate in an Arkansas prison has a legal right to wear a half inch beard in accordance with his understanding of what his faith requires. A generation ago, such a decision would have been unremarkable. Today, when the nation’s longstanding commitment to religious freedom is under challenge, the decision has modestly greater (though uncertain) significance.

Religious Freedom Under Challenge

The national commitment to religious freedom is manifest in the First Amendment and in statutes such as RLUIPA and the Religious Freedom Restoration Act (RFRA). A couple of decades ago the commitment seemed securely anchored in public and academic opinion as well, reflecting an American tradition running back to Jefferson, Madison, William Penn and Roger Williams. Liberals such as Justice Brennan were the leading champions of religious freedom.

Much has changed over the last twenty years. In many sectors, religious freedom is now viewed as a sort of special interest policy mainly benefiting religious conservatives while obstructing efforts to end discrimination and to provide access to abortion and contraceptives. In the academic milieu, the classic justifications for protecting religious freedom offered by Jefferson (“Almighty God hath created the mind free”), Madison, Penn and Williams have largely been ruled out of order because they are theological in nature and thus inadmissible in a public discourse that aspires to be secular (or so many academics think). Consequently, the special commitment to religious freedom may come to seem like a historically contingent artifact without contemporary justification. Douglas Laycock, a leading scholar and litigator in this field, thus notes that,

“[f]or the first time in nearly three hundred years, important forces in American society are questioning the free exercise of religion in principle—suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.”

The resistance to any vigorous commitment to religious freedom was apparent in the shrill (and often mendacious) denunciations of Arizona’s modest effort to strengthen its religious freedom law and in the outcry over the court’s unpretentious Hobby Lobby decision. There is no getting around the fact, of course, that commitments to religious freedom are expressed in the Constitution and in pertinent statutes. So opponents typically do not repudiate religious freedom per se; rather they argue for limitations that would seriously constrict the scope and significance of these legal protections.

One such limitation, vigorously urged by a small group of law professors, is sometimes described (by them, at least) as the “third-party harms doctrine.” Since the mid-twentieth century, justices and commentators have sometimes worried about a “conflict between the clauses”—between the Establishment Clause and the Free Exercise Clause. The former was interpreted by the Supreme Court to mean that government cannot advance religion; the latter was construed to mean that government had some obligation to accommodate religion. But isn’t “accommodating” a form of “advancing”? The court didn’t think so, but without ever providing meaningful clarification the court did occasionally acknowledge that accommodation could go so far as to be a form of unconstitutional advancement. Proponents of the “third-party harms doctrine” have recently excavated some language and results from these old cases to construct an ostensible doctrine that would prohibit government from accommodating religious practice if such accommodation would impose harms or costs on third parties.

The basic idea seems hard to square with the most famous form of religious accommodation—namely, exemption from military service for religious objectors. If a Quaker is excused from serving in the military, and perhaps in Vietnam, someone else presumably will have to do it: if that is not a harm, it is hard to know what would be. The third-party harms doctrine was scarcely noticed by the court in Hobby Lobby. As we will see, however, proponents believe that Holt offers some help, or at least hope, for their argument.

Reaffirming Religious Freedom—For Now

In this fraught context, probably the most obvious and important feature of Holt is that it is a unanimous decision that unhesitatingly applies a statute requiring religious accommodation. Along the way, the decision reaffirms understandings that ought to be plain enough but that can become obfuscated under the exigencies of advocacy (as the debate about the Hobby Lobby case reflected).

Thus, the court made clear that in order to justify a burden on someone’s religion, the government cannot merely recite some general policy of importance (like “equality” or “health”); it must show, rather, that a specific and “compelling” interest would be frustrated without compliance by the religious objector. Thus, “prison security” is surely an important interest; but it does not follow that prisons must forbid Muslims from wearing short beards. The court also persuasively explained that so long as an individual’s claim is sincere, it is not defeated by the fact that some people who adhere to the same general religion do not share a specific objector’s understanding of what the religion requires. Some Muslim men may not believe their religion obligates them to wear beards; many Catholics are not conscientiously opposed to contraception. These facts are simply irrelevant in considering the claims of objectors who do sincerely believe these things. The court’s unanimity in Holt indicates the solidity of these understandings.

Or does it? When we learn that a foreign dictator has reportedly been reelected with the support of 95 percent of the voters, we are naturally suspicious. I confess to having analogous suspicions when, in a deeply contested controversy (such as the controversy over the “ministerial exception” three years in Hosanna-Tabor), the Supreme Court offers a unanimous decision about which some of the justices might have been expected to have reservations. Was there some behind-the-scenes arm-twisting? That seems pretty unlikely in a case like Holt. But justices are busy people, with lots of cases to decide. So could it be that one or more justices did not pay full attention to what the court was saying, or did not quite bother to grasp the larger stakes of the controversy or did not have the time to write a dissenting or concurring opinion registering reservations about what was contained in the majority opinion?

There is no way to be sure. For now, we can say that Holt straightforwardly and unanimously reaffirmed the received commitment to religious accommodation. Whether the justices will remember to say similar things when the controversy involves not a Muslim prisoner who wants to wear a beard but instead a traditional Christian who is religiously opposed to, say, some aspect or application of an anti-discrimination law…well, we shall see.

The “Third-Party Harms Doctrine”?

Two justices—Justice Ginsburg and Justice Sotomayor—did take the trouble to write short concurring opinions. Joined by Sotomayor, Ginsburg explained that she was joining the majority opinion because accommodating the Muslim prisoner “would not detrimentally affect others who do not share the petitioner’s belief.” Proponents of the “third-party harms doctrine” promptly seized on this sentence and declared it to be the most notable feature of the decision. They think—although critics dispute—that the sentence supplies at least provisional validation for their position.

Are the proponents right? They claim to be expounding a limit derived from the Establishment Clause, but Ginsburg said nothing about the Establishment Clause. No one believes that the obligation to accommodate religious objectors is absolute; accommodation always involves some “balancing” of interests and impact on third parties will always figure in that balancing. Ginsburg may merely have been acknowledging this obvious fact. Still, she did go to the trouble of writing separately to underscore the concern; that makes it look like she was trying to do more than acknowledge what everyone understands anyway.

Let us suppose that the proponents correctly interpret what Ginsburg was trying to say in her terse observation. A follow-up question would then arise. Which is more significant? The fact that Ginsburg made the point? Or the fact that only one of her colleagues saw fit to join her (even though it would have been surpassingly easy to do so)? Does Ginsburg’s sentence portend a new jurisprudential development? Or has she simply replaced Justice Stevens (who did present a similar argument in Establishment Clause terms) as the lonely representative of an outlier position that has never gotten any traction on the court?

There is no way to answer this question on the basis of the decision itself. The answer will depend on what the court sees fit to do in future cases. And probably on other developments. Like who is elected to be the next President, perhaps. And, more broadly, whether public support for religious freedom persists or declines.

Conclusion

Lawyers, law professors and advocates generally will push Holt in one direction or another, as their various causes and agendas dictate; that is what lawyers, law professors and advocates do. Just in itself, and for now, Holt stands as a modest reaffirmation of the traditional understanding that religious freedom is a central American commitment and that religious freedom means that government ought to accommodate religious beliefs and practices unless there is some “compelling” reason not to.

Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego and Co-Executive Director of the University’s Institute for Law and Religion. He has written books and articles about religious freedom, including (most recently) The Rise and Decline of American Religious Freedom (Harvard U Press 2014).

Suggested citation: Steven D. Smith, Holt v. Hobbs and the Struggle over Religious Freedom, JURIST – Academic Commentary, Feb. 14, 2015, http://jurist.org/forum/2015/02/steven-smith-religious-freedom.php.