an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
In Holt v. Hobbs, the Court unanimously and easily held that Arkansas prison officials cannot bar an inmate from wearing a ½ inch beard that he claims is required by his religion. The exemption to hair grooming standards, the Court held, is required by the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing substantial burdens on religious exercise unless its policies are narrowly tailored to achieve a compelling interest.
Holt isn't a hard case. The prison officials could offer no good reason for restricting the inmate’s beard. The prison permitted slightly shorter beards for medical reasons. And the Court pointed to the fact that numerous other states and the federal prison system permit beards. Moreover, the main reason given for the beard length restriction—that prisoners would hide contraband in a ½ in beard—was implausible on its face.
The result of the case was never really in dispute. What is notable, however, is that Justice Ginsburg (joined by Justice Sotomayor) wrote a two-line concurring opinion, which reads:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), 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.
For those following recent developments involving the Religion Clauses, this is a significant statement. Justice Ginsburg’s concurrence signals that the third party harms doctrine is alive and well, at least for the justices who dissented in Hobby Lobby. As wehavebeenarguingrepeatedly, accommodations under RLUIPA or RFRA are constrained by the Establishment Clause, which requires the government to refrain from granting religious exemptions that impose significant costs on third-party nonbeneficiaries. Several Supreme Court cases implement this principle and none gainsay it.
Hobby Lobby was not initially framed as a third-party harm case. The government instead argued that it had a compelling government interest in ensuring that women receive contraception coverage. What the government didn’t argue, until fairly late in the litigation (and after scholars pointed it out), is that exempting Hobby Lobby to protect the owners’ religious rights imposed direct and substantial costs on its employees.
Avoiding such costs is emphatically an Establishment Clause value. No one should be forced to bear significant costs on account of someone else's religious practice. If an accommodation for a religious practice imposes burdens, or – in the case of prisons – increases the dangers to other inmates, it would violate the Establishment Clause. As the Court has now repeatedly indicated, RLUIPA and RFRA must be read with this constraint in mind.
Justice Ginsburg, joined by the entire Court, said as much in Cutter v. Wilkinson, so this isn’t new. But it is important that she took the time to reiterate the point in Holt. Other decisions by the Court that consider free exercise exemptions are also grounded in concerns about third-party harms.
Indeed, the Hobby Lobby Court signed onto the third party harms limit. Writing for the majority, Justice Alito stated, “[I]t is certainly true that in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’” (quoting Cutter). But the Court held that there were no harms to the employees in allowing Hobby Lobby to avoid paying for contraception coverage because the government could easily supply the coverage at no cost.
Unfortunately, and as we have previously noted, the Court was wrong as a practical matter.Though the government may eventually pick up the tab, there is currently a gap in health care coverage for the employees of Hobby Lobby and other companies that have received religious exemptions. Nevertheless, the principle remains: future accommodations under RFRA and RLUIPA cannot impose significant burdens on third parties.
A final point: some commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents in Estate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance.
Micah J. Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu
Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu
Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu