The Obama administration’s interpretation of religious liberty would devastate free-exercise protections and relegate minority religions to second-class status. The danger posed by this interpretation has already manifested itself in a lower-court decision.
The administration maintains that courts should reject religious-liberty claims unless a judge determines that “as a matter of law,” a plaintiff would suffer a “substantial” theological burden if he did not receive an exemption. The Supreme Court will rule on that interpretation of religious liberty in an upcoming case: Little Sisters of the Poor v. Burwell.
Allowing the Supreme Court to second-guess nuns’ theological conclusions is absurd and contrary to Supreme Court precedent.
In Holt v. Hobbs, the Supreme Court applied the same standard to a prison regulation that prohibited inmates from growing beards. It concluded that the regulation substantially burdened a Muslim prisoner’s religions liberty because he faced “serious disciplinary action” for refusing to comply with the law.
These precedents show that the courts have neither the license nor the ability to make legal determinations regarding gradations of sin. This is especially true regarding religious minorities, because judges might not be familiar with or sympathetic to their beliefs.
The Ben-Levi case involved a Jewish prisoner who requested permission to study Jewish texts with other prisoners for one hour each week. The prison denied his request even though it allowed members of other religions to engage in such study. The prison mistakenly believed that Judaism did not allow for such study. This mistake led the prison to single out Jews for disparate treatment and to treat Judaism like a second-class religion.
Shockingly, when Ben-Levi sued the prison, the district court upheld the discrimination. The court applied the test advocated by the Obama administration and made its own determination regarding the religious harm that Ben-Levi would suffer if denied the ability to study with other Jewish inmates. The court reached the absurd conclusion that it was actually protecting Ben-Levi’s religiosity by denying his request.
According to the court, Ben-Levi had not suffered any harm because, in its view, Judaism prohibited individuals from studying together in the absence of ten men or a rabbi. In other words, the court concluded that Ben-Levi did not deserve a religious exemption because he misunderstood his own religion — the same argument that the Obama administration is making with regard to the nuns. In doing so, the court acted as a religious tribunal rather than a secular court — and an incompetent one at that. No major denomination of Judaism prohibits the study in question.
The Fourth Circuit Court of Appeals affirmed the decision, and the Supreme Court declined to review the case. Justice Alito wrote a dissent stating that he would have taken the case and reversed the decision. He criticized the lower courts for impermissibly holding that “a plaintiff’s own interpretation of his religion must yield to the government’s interpretation.”
This case offers a clear example of the danger inherent in courts’ second-guessing plaintiffs’ religious beliefs. The district court’s interpretation of Judaism has no basis in Jewish doctrine. There is no prohibition on studying in small groups, nor is rabbinic leadership required for study. In fact, two-person study groups are one of the most common arrangements for the study of Jewish texts. Religious Jews start to learn in such duos during adolescence and continue throughout their lives.
The court’s specific misunderstanding — as baffling as it may be — is mostly beyond the point. The court’s confusion highlights why judges should not be in the business of deciding theological questions. That might be the role of Saudi Arabian courts, but it is not the role of the American judiciary.
If courts were required to weigh the relevant evidence, judges would be tasked with separating orthodoxy from heresy.
It is unlikely that the district-court judge allowed the prison to continue discriminating against Jews because he was an anti-Semite. It is more likely that he lacked expertise regarding Jewish practice and simply made a mistake. Unfortunately, the mistake was not harmless: It allowed the prison to deny Jewish prisoners the right to exercise their religion. If the Supreme Court adopts the Obama administration’s arguments in Little Sisters, such mistakes and their destructive consequences will proliferate.
The lawyers representing the prison criticized the plaintiff for failing to provide “any documentation from reliable sources or authorities on the Jewish Faith.” Such an argument is more appropriate for a heresy inquisition than a lawsuit in a secular court. How is a judge supposed to determine what constitutes a “reliable” religious source or authority?
If courts were required to weigh the relevant evidence, judges would be tasked with separating orthodoxy from heresy. They would have to determine which rabbis speak for authentic Judaism and which should be disregarded as charlatans. There are no objective standards that a court can use in making such determinations. Moreover, the government offered no explanation as to why heretical religious views are any less worthy of legal protection than orthodox ones.
The district court also attempted to justify the prison’s policy by stating that requiring rabbinic supervision “ensures the purity of the doctrinal message and teaching.” Using government force to police the “purity” of religious teaching is the job of ayatollahs, not judges. The notion that the government could use its alleged concern for religious purity to justify discrimination against disfavored religious adherents ought to terrify anyone concerned with religious liberty.In the Little Sisters case, various liberal religious groups filed amicus briefs arguing that the Court should adopt the Obama administration’s test and rule against the nuns. Let’s hope that the Ben-Levi case serves as a cautionary tale and convinces such groups that their members’ religious liberty will diminish if they continue supporting the administration’s position.
Deferring to a plaintiff’s religious understanding does not mean that the plaintiffs will win every case, but it does mean that they will get their day in court. Once a court accepts that a law conflicts with a plaintiff’s religious exercise, the government can still win the case if it demonstrates that the law is necessary to further a compelling governmental interest.
In refusing to decide the Ben-Levi case, the Supreme Court missed an opportunity to reaffirm its clear holdings that courts are prohibited from second-guessing religious practitioners’ sincerely held beliefs. Fortunately, the Supreme Court will have another chance to set the record straight when it hears the Little Sisters case at the end of the month.
— Mitchell Rocklin is a rabbi and a doctoral candidate in U.S. history at the City University of New York. He is also a chaplain in the U.S. Army Reserve. The opinions expressed by him in this piece are his own and do not necessarily reflect the opinions of the Army Reserve. Howard Slugh is an attorney practicing in Washington, D.C. He submitted an amicus brief in the Little Sisters case.