The following is an excerpt from OpinionJournal’s “Best of the Web” at WSJ written by the editor, James Taranto.
Shortest Books Ever Written
“What Men’s Fashion Shows Mean for the Average Guy”—headline, The Wall Street Journal, Jan. 17
Justice Ginsburg Bristles
Judging by the howls from the left, you’d have thought the world was coming to an end last summer when the U.S. Supreme Court decided Burwell v. Hobby Lobby. More than six months later, the world is still here, and the high court has just handed down another ruling that affirms a religious-liberty claim. This time the ruling, styled Holt v. Hobbs, was unanimous and is likely to produce few howls—although there was a telling whimper in a concurrence from two liberal justices.
Gregory Holt is an Arkansas prison inmate and self-described devout Muslim—he also goes by Abdul Maalik Muhammad—who objected to the prison’s grooming policy, which prohibits beards on the grounds that they could be used to conceal contraband and make inmates harder to identify. Holt’s religious beliefs forbid shaving. He offered to wear a beard trimmed to half an inch, but the warden said no dice. So he sued. In a decision written (like Hobby Lobby) by Justice Samuel Alito, the court held that Holt is free to maintain his half-inch beard.
Hobby Lobby and Holt were decided under different laws—respectively, the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000, unwieldily known as RFRA and Rilupa for short. Each statute was enacted in response to a high court ruling interpreting religious freedom narrowly: Employment Division v. Smith (1990), which held that the First Amendment does not entitle believers to exemptions from generally applicable laws, and City of Bourne v. Flores (1997), which held RFRA unconstitutional as applied to the states.
Both RFRA and Rilupa mandate that courts apply the legal standard known as “strict scrutiny” to a plaintiff’s claim that a generally applicable law or policy violates his religious liberty. The justices held that while the Correction Department’s objectives do constitute a “compelling interest”—one necessary condition of strict scrutiny—its policy as applied to Holt was not the “least restrictive means” of achieving this interest, and thus failed the test.
This was not a hard case. Neither, for that matter, was Hobby Lobby, in which it was, if anything, even clearer that the government’s asserted compelling interest—making a range of contraceptive treatments and devices available to persons with employer-provided medical insurance—could have been accomplished via less-restrictive means.
But Hobby Lobby was politically polarizing, whereas Holt was not. That’s why all the justices voted the law this time, while only a bare majority did last year.
Which brings us to the Holt concurrence by Justice Ruth Bader Ginsburg (joined by Justice Sonia Sotomayor, who contributes her own concurring digression on prison policies). The Ginsburg opinion is so brief, we can quote it in its entirety (omitting citations):
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 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.
Ginsburg’s logic has a certain plausibility, especially if you don’t value religious freedom very highly. Whereas some Hobby Lobby employees possibly would like to avail themselves of a benefit to which they would otherwise be entitled by law at their employer’s expense, Holt’s beard doesn’t impose any tangible burden on anybody. If you look at it that way, Holt had a stronger claim than Hobby Lobby.
But that isn’t the way the law looks at it. Neither RFRA nor Rilupa contains language limiting its applicability to cases in which “accommodating petitioner’s religious belief . . . would not detrimentally affect others.”
Detrimental effect on others could, of course, constitute a compelling governmental interest, as a majority of the court (Justice Anthony Kennedy plus the four dissenters) seemed to agree it did in Hobby Lobby. But RFRA and Rilupa put the burden on the government to overcome the detrimental effect. It may infringe on religious freedom only when there is no way to avoid such infringement (or if Congress enacts an exception from the applicable religious-freedom statute).
Ginsburg’s brief concurrence, then, amounts to a declaration that she accepts the majority’s decision in this case because she finds the outcome unobjectionable—unlike in Hobby Lobby, in which she deplored the outcome for reasons extraneous to the law. She might have a decent political argument for repealing, rewriting or enacting exceptions to RFRA. But judges aren’t supposed to engage in that sort of politicking.
Orwell at Vanderbilt
Our friend Carol Swain is back in the news. The Vanderbilt professor of political science and law, whom we defended against the Southern Poverty Law Center back in 2009, had an op-ed last week in the Tennessean last week titled “Charlie Hebdo Attacks Prove Critics Were Right About Islam.”
As TheCollegeFix.com reports, the op-ed has raised a ruckus on campus:
[A] Saturday afternoon protest was organized by Muslim student Farishtay Yamin, who looked on proudly as chants of “Vanderbilt united will never be divided!” and “To reach peace, teach peace!” grew louder. . . .
The overall tone of the protest, though passionate, did not attack Swain personally.
Yamin herself acknowledged after the event that Swain “has substance and that she is an educated woman” and has “a lot of qualifications to be teaching at Vanderbilt.”
But Swain’s speech must be curtailed, Yamin said: “What I’m really trying to show her is that she can’t continue to say these kinds of things on a campus that’s so liberal and diverse and tolerant.”
To be sure, there’s plenty to disagree with in Swain’s op-ed. For example, she declares: “Islam is a dangerous set of beliefs totally incompatible with Western beliefs concerning freedom of speech, freedom of assembly and freedom of association”—surely an overgeneralization based on particular strains within Islam.
Then again, that astonishing quote from Yamin—“she can’t continue to say these kinds of things on a campus that’s so liberal and diverse and tolerant”—would seem to back up Swain’s generalization. But that isn’t Islam, it’s political correctness.
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