Bench Memos

Law & the Courts

Linda Greenhouse’s Distorted Attack on Religious Liberty

Linda Greenhouse’s online column yesterday bears the portentous title “The Supreme Court Nears the Moment of Truth on Religion.” Greenhouse warns ominously “about the growing threat that an increasingly weaponized free-exercise clause poses to civil society, along with the statutes meant to extend its reach.”

If a “moment of truth” is approaching, the distortions that pervade Greenhouse’s piece won’t help to discern it. And it is the hostility to religious liberty that she manifests that poses the real threat to civil society.

Let’s run through some particulars:

1. Greenhouse opens by expressing her alarm at a recent Sixth Circuit opinion that involved a claim by Michigan prisoners that the state violated their religious-liberty rights under the federal Religious Land Use and Institutionalized Persons Act. The prisoners claim to belong to the “Christian Identity” religion, which advocates white separatism. They sought the right to engage in group worship and baptism. The district court ruled against them on the ground that the state’s denial of their request “did not substantially burden [their] exercise of their religion under the second of the three-step analysis for evaluating RLUIPA claims.” The Sixth Circuit panel ruled that the district court erred in ruling against the prisoners at this step of the analysis, and it remanded the case to the district court so that it could determine whether the state “satisfied the standard of strict scrutiny under RLUIPA’s third step.”

Greenhouse says that she did a “double-take” when she read this “ridiculous” decision. But she obscures from her readers the three-step analysis that RLUIPA plainly requires, and she gives them the false impression that the prisoners prevailed on their RLUIPA claim. Pointing out that the Christian Identity group has an anti-Semitic and racist theology and considerable influence among extremists, Greenhouse asks, “What sensible person, or judge, would want to allow it to flourish inside a prison?” She doesn’t disclose that the Sixth Circuit panel expressly stated that the prison’s “interests in safety and security” are “relevant at step three [of the RLUIPA analysis], not step two.” And she doesn’t state that the panel sent the case back to the district court to apply step three.

Greenhouse also doesn’t note that Justice Ginsburg’s unanimous opinion for the Court in Cutter v. Wilkinson (2005) held that RLUIPA’s standard was constitutionally permissible—and did so, as Greenhouse reported at the time, in a case involving prisoners who invoked white-supremacist and Satanist religious beliefs. Explaining that “context matters” in applying strict scrutiny, Ginsburg stated that there was “no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.”

2. Greenhouse faults the Supreme Court for “instructing judges to accept almost any religious claim, no matter how preposterous, at face value and to put the government to an extremely tough test to justify any infringement on a ‘sincere’ religious belief.” She asserts that in Burwell v. Hobby Lobby the Court “gave dispositive weight” to the claim by business owners that including contraceptive coverage in their health plans “would make them complicit in the sin of birth control.” She quotes with disapproval Justice Alito’s statement in his majority opinion that “It is not for us to say that [the Hobby Lobby owners’] religious beliefs are mistaken or insubstantial.”

Greenhouse evidently imagines that judges or other government officials should be deciding which religious beliefs “are mistaken or insubstantial.” Again, she hides from her readers that Alito, far from breaking new ground, was reciting a proposition that was set forth in the Court’s opinion in Thomas v. Review Board in 1980—an opinion joined by liberal icons William Brennan and Thurgood Marshall—and that was implicit in the Court’s earlier Free Exercise decisions. This proposition did not have “dispositive weight” in the Court’s analysis. It meant only that the challengers satisfied the threshold test of acting on a religious belief. (Greenhouse also misdescribes the religious beliefs of the Hobby Lobby owners: they had religious objections to abortion and opposed providing contraceptives that might also operate as abortifacients.)

More broadly, the “tough test” that Greenhouse complains that the federal Religious Freedom Restoration Act and RLUIPA impose is the test that Brennan and Marshall believed that the Free Exercise Clause required. The express purpose of RFRA, in overturning the effect of the Court’s decision in Employment Division v. Smith (1990), was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”

3. Greenhouse seems to think that religious-liberty rights belong to some people but not others. She complains that RFRA, “initially seen by a broad liberal coalition that supported it as protection for minority religious practices, has become a powerful tool in the hands of a politically energized Christian majority.” But RFRA provides equal protections for all religious believers. (And, of course, if the supposed “Christian majority” that Greenhouse says is “politically energized” had the power she imagines, Christian believers wouldn’t have to go to court to seek to protect their rights.)

4. Greenhouse’s opening about white-supremacist prisoners is an odd lead-in to her discussion of an important new case on the Court’s docket, Fulton v. City of Philadelphia. The question in this case is whether the city of Philadelphia violated the Free Exercise Clause and the Free Speech Clause by excluding a religious agency from the city’s foster-care system unless the agency agreed to act and speak in a manner inconsistent with its religious beliefs about marriage. Greenhouse is correct that the case gives the Court an opportunity to overturn Employment Division v. Smith (and, although she doesn’t say it, restore the Free Exercise test that Brennan and Marshall favored). But she leaves out that the agency also powerfully argues that the city’s “shifting rationales” show that it isn’t applying a neutral and generally applicable law in a way that would satisfy Smith.

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