Why We Should All Be Glad a Muslim Man Just Won His Religious-Liberty Case at the Supreme Court

Why We Should All Be Glad a Muslim Man Just Won His Religious-Liberty Case at the Supreme Court January 21, 2015

Supreme Court Washington DC USA

Yesterday the Supreme Court ruled unanimously in favor of a Muslim prison inmate who wished to grow a short (1/2 inch) beard for religious reasons. The good folks at the Becket Fund for Religious Liberty have won again, and it’s their second unanimous religious-liberty victory in the last three years. 

The opinion itself is mainly a straightforward application of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal statute that protects religious liberty under the same framework as the (recently) much-maligned Religious Freedom Restoration Act (RFRA). The Court rightly rejected the state’s “security” justification for rejecting the plaintiff’s short beard, and did the right thing — inquired whether the beard-length prohibition was truly the “least restrictive means” of accomplishing the state’s security objective. Courts must not grant “unquestioning deference” to the state’s chosen methods — an obvious point, but a necessary one.

But the importance of the case goes beyond its reasoning to the decisive nature of the victory. Once again, the Supreme Court has unanimously rejected a government restriction on religious freedom, sending a strong and vital message to lower courts. The Becket Fund’s Eric Rassbach, writing at the Volokh Conspiracy, notes that these unanimous victories are a sign of, essentially, extreme government intolerance when facing its religious citizens. Here’s Rassbach:

What’s a better reason for governments’ losing streak? Part of the answer lies in the extreme litigation positions taken by governments in religion cases.

In Hosanna-Tabor, the federal government took the position that the long-recognized ministerial exception simply did not exist. The Court called the federal government’s position “extreme,” “untenable,” and a “remarkable view.” (If anyone is aware of another case where the Solicitor General’s litigation position has been called “extreme,” “untenable” and “remarkable” by the unanimous Supreme Court, please feel free to say so in the comments. Hosanna-Tabor might be the only case.) In Holt, Arkansas asked for complete deference, claiming that judges in the “calm serenity of judicial chambers” had no ability to evaluate whether prisons could accommodate religious exercise.

Why the intolerance? In large part because the growth of the regulatory state is insulating the law-making process from true democratic oversight. Here’s Rassbach again:

Another part of the answer lies in the typical process of government regulation. Governmental agencies, which do not answer directly to the public, simply aren’t inclined to compromise with small religious groups or religious individuals. Since there is little if any political price to pay, and members of minority religions are often without significant political power (as our Holt co-counsel Prof. Douglas Laycock has long argued), there is little incentive to compromise.

Put another way, government agencies will try to get away with as little accommodation as possible. In most areas of the law, government agencies can regulate on a because-I-say-so basis. But when federal civil rights statutes like RLUIPA and RFRA intervene, this approach fails and the government loses in court.

Rassbach’s observations exactly mirror my own experience. I’ve been consistently amazed at the inflexibility of low-level government officials in the face of religious liberty (and free speech) claims. Their lawyers adopt and amplify their clients inflexibility, leading to lengthy, contentious litigation over often quite elementary constitutional principles. For example, no one should have to litigate three years to strike down university speech-code language that’s never been upheld in any federal court, anywhere. The result is a series of litigation wins that secure individual justice but fail to move the needle on the larger problem of government intolerance. And since most people don’t think to sue (or don’t know lawyers who can take their case pro bono), government agencies tend to get away with their abuses.

Supreme Court cases, however, can move the needle more than any other form of case and can mobilize new legal resources to take advantage of nationally controlling precedent. For the short term, I’d predict government intolerance continuing and perhaps even increasing, but a series of large attorneys’ fee awards can focus even the government mind. In any case, there’s no choice but to keep fighting, and Becket’s win yesterday gives us further hope that liberty can, ultimately, prevail.

This article first appeared here on National Review.

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What Are Your Thoughts?leave a comment
  • Amen Specklebird

    Talibangelicals joining hands with Jihadis.

    It’s not surprising, since the extremist Christianists and extremist Islamists aren’t really all that far apart on dogma.

    The Christian Origins of Islam | Peter J. Leithart | First Things
    firstthings.com/web-exclusives/2012/12/the-christian-origins-of-islam

  • Alice0721

    Congratulations, you have won the GET A LIFE award! This award is given to people who have nothing better to do with their life than comment on blogs of religions they believe are “fairytales” in hopes to give them something more useful to do. Things more useful to do include:

    #1 Underwater basket weaver
    #2 Skittles Sorter
    #3 Jack-in-the-box tester

    Please choose one of these now.

  • Amen Specklebird

    When do you get a life? Or do you have nothing better to do than setting everybody straight, according to your fairy tales?

  • Alice0721

    I’m not the one posting on a random fairytale’s board disrupting their discussions.

  • Amen Specklebird

    Disrupting? That’s a bald-faced lie. You have the ability to comment freely.

  • Alice0721

    When one of the bloggers shuts down their comment section because of comments like yours, I’d call that disruptive. When your only comment is to insult the blogger’s audience, that is disruptive.

  • Amen Specklebird

    I call it an angry temper tantrum caused by cognitive dissonance.

    In psychology, cognitive dissonance is the mental stress or discomfort experienced by an individual who holds two or more contradictory beliefs, ideas, or values at the same time, or is confronted by new information that conflicts with existing beliefs, ideas, or values.
    […]
    Cognitive dissonance has been associated with left frontal activity in the cortex (Harmon-Jones, 1999 and Harmon-Jones and Harmon-Jones, 2002). In addition, the left frontal cortex has been associated with anger, with anger supporting a motivational purpose behind its anger showing the left frontal activity being active. Together, cognitive dissonance and anger are supported with the motivational directional model.
    wikipedia.org/wiki/Cognitive_dissonance

  • Alice0721

    Man… you have to be a kid if you think you have to explain cognitive dissonance like most people don’t know what that means. Now that you’ve learned a new vocab word or two and know how to copy and paste from Wikipedia, lets see if you can put it into the correct context.

    I would say that it would be cognitive dissonance if you were actually respectfully bringing rational, well thought out arguments to the table and he was unable to answer them, but name calling like a child does not bring about cognitive dissonance. The only discomfort brought about by that is the discomfort of sharing the same blogsphere with a little bully.

    I think you are the one with cognitive dissonance.