Bench Memos

Law & the Courts

Greenhouse Gaffes

In her online piece for the New York Times today, Linda Greenhouse discusses at length Justice Alito’s recent dissent, in Ben-Levi v. Brown, from the denial of a prisoner’s petition that advanced a religious-liberty claim. I’ll limit myself to highlighting two gaffes that Greenhouse makes:

1. Greenhouse says that Alito’s opinion is “the first time in 10 years on the court that [she] can recall him ever expressing empathy with a prison inmate.” (By “expressing empathy with,” it would seem that Greenhouse really means “recognizing the legal rights of.”) But it was just last year that Alito wrote the Court’s unanimous opinion in Holt v. Hobbs holding that a Muslim prisoner had a religious-liberty right to grow a short beard. In case Greenhouse somehow couldn’t remember the Holt case, Alito’s Ben-Levi opinion discusses and relies on it.

2. As she has done before (see point 3 here), Greenhouse conflates (a) the well-settled proposition that courts have no authority to inquire into the correctness (as distinct from the sincerity) of a person’s understanding of his religion, with (b) the very different proposition that courts must defer to a person’s assertion that a governmental action substantially burdens his religious beliefs.

Greenhouse posits that Alito “is swinging for the fences” in his Ben-Levi opinion in order to influence the soon-to-be-argued HHS mandate cases (Little Sisters of the Poor and others). But there’s no “swinging for the fences” involved in setting forth the elementary proposition, recognized in the Court’s Hobby Lobby ruling two years ago (and in the Free Exercise precedents that the Religious Freedom Restoration Act incorporated), that a massive fine for declining to engage in conduct that violates a person’s sincerely held religious beliefs imposes a substantial burden on that person within the meaning of the Religious Freedom Restoration Act.

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