Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, January 21, 2015

Did Justice Ginsburg endorse the Establishment Clause third-party burdens argument in Holt v. Hobbs?

I agree with Rick and Marc in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPA-required accommodations that impose third-party burdens (or allegedly impose such burdens, depending on one's understanding of the benefit/burden baseline). In my view, the Hobby Lobby amici curiae brief by Nathan Chapman lays out a better reading of the governing law than that adopted by the scholars linked in Rick's post. Unlike Rick and Marc, however, I do not read Justice Ginsburg's Holt concurrence as endorsing an Establishment Clause-based limit on third-party accommodations that should otherwise properly be recognized under RLUIPA and RFRA.

To assess this disagreement, one needs to follow Justice Ginsburg's Holt citations to her Hobby Lobby dissent: "See [Hobby Lobby], at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting)." {BTW, gotta love these Supreme Court citation conventions! See ___ (gratuitous personal op. at _:);)_).}

Justice Ginsburg's position in the cited portions of her Hobby Lobby dissent is that consideration of third-party burdens is part of the appropriate application of RFRA and RLUIPA. She does not adopt the view that these burdens could give rise to a freestanding Establishment Clause limitation on what would otherwise be required by those statutes. True, the Holt-cited portions of Justice Ginsburg's Hobby Lobby dissent do rely on Cutter v. Wilkinson and Estate of Thornton v. Caldor, which are Establishment Clause cases. But they also rely on Wisconsin v. Yoder and Prince v. Massachusetts, which are not.

Footnote 25 of Justice Ginsburg's Hobby Lobby dissent (not cited in her Holt v. Hobbs concurrence) most directly addresses the influence of the Establishment Clause on RFRA/RLUIPA analysis. It opens with the statement: "As the Court made clear in Cutter, the government's license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause." But the closing sentence relies on United States v. Lee, which was neither a third-party burden case nor an Establishment Clause case: "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens, and 'some religious practices [must] yield to the common good.' United States v. Lee, 455 U.S. 252, 259, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982)." This is consistent with the position set forth in the Chapman brief, which is that Cutter interprets RLUIPA (and RFRA, by extension) to incorporate consideration of third-party burdens into the application of the statutorily required strict scrutiny.

If this reading of Justice Ginsburg's opinion is correct, then Justice Ginsburg actually agrees both with Rick that "the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry," and also with Marc, that "the strict scrutiny standard of RLUIPA and RFRA, if 'properly appl[ied],' itself incorporates the Establishment Clause limits raised by cases like Thornton."


Walsh, Kevin | Permalink