Althouse: "Hobby Lobby makes clear that all persons — human and corporate, citizen and foreigner, resident and alien — enjoy the special religious free exercise protections of the RFRA."

৭ জুলাই, ২০১৪

"Hobby Lobby makes clear that all persons — human and corporate, citizen and foreigner, resident and alien — enjoy the special religious free exercise protections of the RFRA."

Write lawyers for Guantanamo detainees who want to be able to meet in groups for communal prayer in observance of Ramadan.

Assuming the Religious Freedom Restoration Act applies to the detainees, the question is whether being deprived of communal prayer is a substantial burden on religion and, if so, whether the government has a compelling interest that cannot be served by a less restrictive means.

The linked article makes it seem as though the government is using access to communal prayer as a positive incentive to get prisoners to give up their hunger strike and not because of security needs. If that's so, then it should be easy to posit less restrictive means of deterring hunger striking. Think of incentives that have nothing to do with religion — any punishment or privilege that isn't related to a religious need might suffice.

2 problems with that argument: 1. Maybe access to communal prayer is the only incentive that will work on these particular individuals, who are, after all, far into a process of physically punishing themselves by refusing to eat, and 2. Maybe these individuals see everything in terms of religion, so that any punishment or privilege the government could come up with would also burden their religion.

৮২টি মন্তব্য:

damikesc বলেছেন...: In what universe do non citizens have constitutional protections?; ৭/৭/১৪, ১১:০৮ AM
Ann Althouse বলেছেন...: "In what universe do non citizens have constitutional protections?"

1. The case is about the application of a statute, the Religious Freedom Restoration Act, not the Constitution at all.

2. You seriously think the government can just do anything to a noncitizen -- torture, prison without due process, censor their speech, quarter soldiers in their houses, etc. etc.?; ৭/৭/১৪, ১১:২৩ AM
Hagar বলেছেন...: This is B.S.
The prisoners at Guantanamo is first of all foreigners - aliens - and not covered by the U.S. Constitution, and they are prisoners, so even if they were citizens, they would be under restraint and would not have all the rights afforded to free citizens.

A group of mafiosi in prison would not be allowed to confer together under the pretense of communal prayer either.; ৭/৭/১৪, ১১:২৩ AM
Ann Althouse বলেছেন...: The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

The government is forbidden to take certain sorts of actions. Nothing is said there about who wants to exercise the freedom, only about controlling the federal government.; ৭/৭/১৪, ১১:২৫ AM
Hagar বলেছেন...: United States citizens are subject to the Constitution, so mistreatment of prisoners as suggested by AA is forbidden, but the restrictions are on the wardens, not the prisoners.; ৭/৭/১৪, ১১:২৬ AM
Ann Althouse বলেছেন...: The Religious Freedom Restoration Act says:

"Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section."

That's "a person," not "a citizen." There's no question that a noncitizen detainee is a person. You'd have to argue some implication that these people are excluded. How would you do that?

Hobby Lobby included corporations as persons.; ৭/৭/১৪, ১১:২৭ AM
Ann Althouse বলেছেন...: Subsection (b) just states the now-familiar test:

"(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest."; ৭/৭/১৪, ১১:২৮ AM
Smilin' Jack বলেছেন...: You seriously think the government can just do anything to a noncitizen -- torture, prison without due process, censor their speech, quarter soldiers in their houses, etc. etc.?

I thought the whole point of keeping these bozos in Cuba was so we could do cool things to them that wouldn't be allowed on U.S. soil.; ৭/৭/১৪, ১১:৩১ AM
SJ বলেছেন...: If these detainees were prisonsers of war (captured wearing the uniform of a nation-state during military action against that nation-state) would they be covered under RFRA?

Additionally, if these detainees were known to be soldiers of a nation-state which was in a state of war with the U.S., and they were captured while not wearing uniforms, they could have been shot on-site as spies. (Once their status as soldiers-out-of-uniform was verified.) At least that is my understanding of various international agreements about handling detainees during wartime.

Since these men are not soldiers of a nation-state, they don't fall under either category.

Is there a well-understood status that these men fall into, under either U.S. law or international agreement/law/custom?

Does that status alter their privileges under RFRA?

I understand that the First Amendment is pretty broad about "Congress shall make no law...".

However, I also understand that the Supreme Court has set limits on how the Constitution affects certain edge-cases, while saying such things as "The Constitution is not a death-pact."

Does a state of war, or a state of military action against guerrilla-soldiers-not-aligned-with-a-nation-state, fit under that category?

I'm left with the impression that agrees with something Glenn Reynolds said several times. The War-on-(specific)-Terrorists has not been over-lawyered, but has been badly-lawyered.; ৭/৭/১৪, ১১:৩৪ AM
Curious George বলেছেন...: How can there be detainees in Gitmo when Obama closed it down in 2009?; ৭/৭/১৪, ১১:৩৬ AM
Michael বলেছেন...: And 3) How do we know "communal prayer" is not a cover for gathering to conspire for other purposes? BTW, non-citizens within the US actually are entitled to constitutional protections - which is why these people are kept at Gitmo, which is not within the US.; ৭/৭/১৪, ১১:৩৬ AM
Curious George বলেছেন...: I mean it must have been closed down because I haven't seen my lefty friends making a fuss about it.; ৭/৭/১৪, ১১:৩৬ AM
Curious George বলেছেন...: Or the media.; ৭/৭/১৪, ১১:৩৭ AM
Original Mike বলেছেন...: Terrorists refusing to eat? I don't see a problem.; ৭/৭/১৪, ১১:৩৭ AM
Curious George বলেছেন...: Or Democrats in Congess.; ৭/৭/১৪, ১১:৩৭ AM
Ann Althouse বলেছেন...: "I thought the whole point of keeping these bozos in Cuba was so we could do cool things to them that wouldn't be allowed on U.S. soil."

Like the Nazis in Poland?; ৭/৭/১৪, ১১:৩৮ AM
n.n বলেছেন...: Virtual presence should suffice to respect their human dignity.

The RFRA is a statute to confirm and clarify the scope of the First Amendment. The detainees are not subject to the jurisdiction of The Constitution and are not afforded its rights nor subject to its obligations.

The same opportunistic argument has been used to create an ambiguous class of citizenship for the children born of legal and illegal aliens. The Constitution only applies to "We the People of the United States".; ৭/৭/১৪, ১১:৪১ AM
Ignorance is Bliss বলেছেন...: The linked article makes it seem as though the government is using access to communal prayer as a positive incentive to get prisoners to give up their hunger strike and not because of security needs.

If that's so, then I would think the government's actions fail the compelling interest test.; ৭/৭/১৪, ১১:৪৫ AM
n.n বলেছেন...: Yeah, you're right. It applies to person, not exclusively to citizen.

Are enemy combatants subject to the same jurisdiction as citizens and legal aliens if the scope is not specified or ambiguous?; ৭/৭/১৪, ১১:৪৮ AM
Ann Althouse বলেছেন...: "If these detainees were prisonsers of war (captured wearing the uniform of a nation-state during military action against that nation-state) would they be covered under RFRA?"

Here's the text of RFRA. What is your argument to exclude them?

Here are Congress's findings to support that:

(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

"Unalienable right" refers to rights that everyone has and cannot cede to government.

Here's the most important founding era document about the meaning of religious freedom, James Madison's "Memorial and Remonstrance against Religious Assessments" (1785). I've boldfaced to emphasize the significance of "unalienable" as understood by the framers

"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority."; ৭/৭/১৪, ১১:৪৯ AM
Hagar বলেছেন...: Come on, Professor.

It is not necessary for laws enacted by a sovereign entity to start out every statute with a preamble stating that the following only applies where the entity has jurisdiction. It is self-evident.

With rights come obligations, and every U.S. citizen, and particularly government officers, are obliged to follow the Constitution, ratified treaties, and U.S. statutory and common law wherever they go. "The Constitution follows the flag."

The argument that prisoners at Guantanamo can be treated otherwise than permitted by U.S. law has no validity.; ৭/৭/১৪, ১১:৫২ AM
garage mahal বলেছেন...: This is B.S.
The prisoners at Guantanamo is first of all foreigners - aliens - and not covered by the U.S. Constitution

The Constitution goes wherever the U.S. government goes. GTMO is a U.S. base. Furthermore, the Constitution applies to persons, not just citizens.; ৭/৭/১৪, ১১:৫৬ AM
Brando বলেছেন...: In the meantime, what's the long term plan with these guys? Are we going to give them some sort of trial, or keep them in limbo until they die of natural causes?

I realize many of these detainees are dangerous and have committed terrorist acts, but that being the case I don't see why we don't try and convict them before deciding to hold them indefinitely. And it's inhumane to not provide any due process considering some number of these guys were probably guilty of association only.; ৭/৭/১৪, ১১:৫৮ AM
Hagar বলেছেন...: The Nazis were free to do what they did in Poland and elsewhere, but also had to accept the consequences of their actions, for which you may google pictures of Berlin and other German cities from 1945.; ৭/৭/১৪, ১২:০২ PM
Mark বলেছেন...: Can of worms just got opened by Alito, the repercussions are just barely being felt.

I have the feeling that while Hobby Lobby 'won' it will soon be a win on paper only.; ৭/৭/১৪, ১২:০৬ PM
Ignorance is Bliss বলেছেন...: Mark said...

Can of worms just got opened by Alito, the repercussions are just barely being felt.

If so, I suspect it is a very small can. And what about Alito's decision advances the case for these individuals? They could have always brought this suit. The only hotly debated part of the decision was the application of the law to for-profit corporations, which is not relevant to these prisoners.

This sounds like the prisoner's lawyer jumping on the Hobby Lobby decision for PR purposes only.; ৭/৭/১৪, ১২:২৩ PM
Ann Althouse বলেছেন...: "How do we know "communal prayer" is not a cover for gathering to conspire for other purposes?"

Based on the article, access to communal prayer is treated as a privilege for good behavior, to get prisoners to give up on the hunger strike. If those who don't hunger strike do have access, it would support the position that the govt interest in question is to keep the prisoners alive and healthy.

But we haven't seen the govt detail its reasons. I think if the reason were security, it should win on that ground.

As the Supreme Court wrote in Cutter v. Wilkinson http://www.law.cornell.edu/supct/html/03-9877.ZO.html (analyzing RLUIPA, which uses the same compelling interest test as RFRA):

"We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, see supra, at 5, “[c]ontext matters” in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003).11 Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103—111, p. 10 (1993)).12"; ৭/৭/১৪, ১২:৩০ PM
garage mahal বলেছেন...: Can of worms just got opened by Alito, the repercussions are just barely being felt.

Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives.; ৭/৭/১৪, ১২:৩৩ PM
Lucien বলেছেন...: Since the story is that the Hobby Lobby decision changes the law as to whether these detainees are persons for purposes of RFRA, and that at least some court had previously ruled otherwise, there must have been some rationale asserted by the Government as to why the detainees were not RFRA persons. What was it, and what is it about Hobby Lobby that changes the calculus?; ৭/৭/১৪, ১২:৩৪ PM
Left Bank of the Charles বলেছেন...: Is it too cynical to expect the Obama administration to "settle" the RFRA suit by closing Gitmo?; ৭/৭/১৪, ১২:৩৫ PM
Alexander বলেছেন...: Communal prayer - yes, what could possibly go wrong with allowing these chaps the opportunity to correspond with one another?

Prisoners of war do not have constitutionally protected rights - beyond what the public at any given moment feels compelled to demand (say, barring torture). Prisoners of war are government by the laws of war, and these are enforced by fears of retribution against our own people should we break them. The Constitution does not apply and never has:

POW's do not have any right or expectation to privacy, or unlawful search and seizure. They have no right to a trial. They have no right to free speech. They have no right to firearms, etc. etc.

This is not exactly groundbreaking.

Of course, up until Obama's great trade, the left categorically refused the argument that these chaps were prisoners of war - to do so would be to admit that the US government (under Bush) had every right to lock them away indefinitely.; ৭/৭/১৪, ১২:৩৭ PM
Brando বলেছেন...: Interesting--so if the First Amendment applies to "persons" and not just U.S. Citizens, could an Iraqi bring a suit against the U.S. if our Army destroyed a particular mosque in Iraq? What about if U.S. soldiers helped rebuild a mosque?

I realize usually actions such as these could be considered "religion neutral" (e.g., we had to destroy any building being used as a sanctuary by enemy snipers, and weren't targeting mosques as such, or we have a policy of helping rebuild any building damaged in the war to appease the local population). But the idea of our overseas government representatives (i.e., our military) being accused by foreign nationals of violating the Free Exercise or Establishment clauses in their countries seems outlandish.; ৭/৭/১৪, ১২:৩৮ PM
Ann Althouse বলেছেন...: @Hagar

The relevant statutory text is "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section."

That's not limited to the territorial United States or to citizens. That is a profound and intentional undertaking by the federal government with respect to everything it does to refrain from substantially burdening anyone's exercise of religious unless it's necessary to serve a compelling governmental interest.

What is the basis for inferring limits?; ৭/৭/১৪, ১২:৩৯ PM
Ann Althouse বলেছেন...: (Actually, Hagar, I don't really know what you are "Come on, Professor"ing me about. Have you misread me?); ৭/৭/১৪, ১২:৪১ PM
Hammond X. Gritzkofe বলেছেন...: Don't know much about the Law, much less the finer points of RFRA.

But Instapundit had a link to Jonathan Adler, Volokh Conspiracy article at the "Washington Post. I noticed this:

...whether the government can show a compelling interest in subjecting the plaintiff to the policy and that there is no less-restrictive alternative to meet the government’s interest.

So to prevail, the Government must prove a negative?; ৭/৭/১৪, ১২:৫৭ PM
Ignorance is Bliss বলেছেন...: garage mahal said...

Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives.

What about the ruling ( or the law ) would allow one person to impose their beliefs on another?; ৭/৭/১৪, ১:০৪ PM
SomeoneHasToSayIt বলেছেন...: Ann Althouse said...
The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"

The government is forbidden to take certain sorts of actions. Nothing is said there about who wants to exercise the freedom, only about controlling the federal government.

Oh my god. And you're a law professor?; ৭/৭/১৪, ১:০৪ PM
Hagar বলেছেন...: I think you need a good night's sleep.

The United States have no jurisdiction over citizens of other countries, except such as may be visiting U.S. territory and are accepted as guests subject to rules regarding good behavior.

There is no such thing as "international law," only some agreements that if you do this to me, I am going to punch back twice as hard, so don't do it!
And if the other party does do it, you must punch back twice as hard, otherwise such agreements are not worth the paper they are printed on.; ৭/৭/১৪, ১:০৬ PM
YoungHegelian বলেছেন...: Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives.

How about, before every aggravated lefty rants on about what horrible things are going to happen now that the RFRA has been enjoined by a Christian company, the same folks rant on about how horrible it is that certain Native Americans get to skirt the drug possession laws and commit felonies all in the name of their silly, anti-scientific, religious beliefs?

Oh, but it's all about oppressed minorities & psychedelic drugs? Well, never mind, then.

Guys, the whole, fucking Democratic Party signed the RFRA into law, from the Prez on down to the most junior representative! Did you think it would only apply to little stoned & oppressed brown people? If so, then, bluntly, you're too stupid to live.; ৭/৭/১৪, ১:৩৩ PM
jr565 বলেছেন...: "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest."

If you are detaining people and having them meet in groups allows them to commune about terrorist activities then it would be in govts interest to restrict such meetings.; ৭/৭/১৪, ১:৪৪ PM
jr565 বলেছেন...: 3) governments should not substantially burden religious exercise without compelling justification;

Felons for example are not allowed to vote.; ৭/৭/১৪, ১:৪৬ PM
jr565 বলেছেন...: Alito didn't open this can of worms. Obama did.
He couldn't have gotten his health care law passed except by telling pro lifers that they wouldn't be forced to pay for abortions and/or abortifacients. Then when the law passed he changed the rules.

Additionally when Hillary care was discussed they had even broader exemptions for religious ojections to abortions.; ৭/৭/১৪, ১:৫৭ PM
Scott বলেছেন...: What would Christopher Hitchens do?; ৭/৭/১৪, ২:০০ PM
Nichevo বলেছেন...: 1. Compelling interest: win GWOT
2. If a fetus isn't a person why should a terrorist be a person?
3. Anything short of cutting our own throats, oh and maybe leaving a few blondes alive in the face down ass up position, is an imposition on their religion.
4. I am happy to declare Islam not a religion.; ৭/৭/১৪, ২:০১ PM
jr565 বলেছেন...: Althouse wrote:
2. You seriously think the government can just do anything to a noncitizen -- torture, prison without due process, censor their speech, quarter soldiers in their houses, etc. etc.?

In war, if you are captured on the battlefield you don't get traditional due process. And they can be held for the duration of hostilities. IF the face trials then can face tribumals conducted under military justice.; ৭/৭/১৪, ২:০৩ PM
damikesc বলেছেন...: 2. You seriously think the government can just do anything to a noncitizen -- torture, prison without due process, censor their speech, quarter soldiers in their houses, etc. etc.?

I think, yes, the government can completely squelch all religious activity of a non-citizen in custody if they so wish to do so.

Torture et al are governed by other laws against that behavior was always my understanding.

Supplying them with Korans is more than we are obligated to do.

I don't feel anybody not subject to the Constitution themselves (which Gitmo detainees are not) have any expectation of free exercise of religion. It's not different than denying non-citizens the vote.

These detainees aren't covered by any applicable laws. They aren't govered by the Geneva Conventions. They aren't covered by US law. Anything we do for them is kindness, not legal obligation.

"Unalienable right" refers to rights that everyone has and cannot cede to government.

For US citizens, yes. For international citizens? No. I can't think of a valid argument for non-citizens not residing inside the US itself to have any EXPECTATION of Constitutional protections, much less any ACTUAL protections.

Based on the article, access to communal prayer is treated as a privilege for good behavior, to get prisoners to give up on the hunger strike. If those who don't hunger strike do have access, it would support the position that the govt interest in question is to keep the prisoners alive and healthy.

Professor, if they didn't allow the prisoners out of their cells EVER while they are there, what laws, exactly, would be violated in the process?

Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives.

Because they'd get the hardest. Not Progressive women or gays. Islam is long known as a pro-gay faith, after all.

I respect you, Professor --- but if the legal community wishes to argue that non-citizen combatants have any Constitutional protections, I wonder what the value of the legal community is at this point.; ৭/৭/১৪, ২:১১ PM
Hagar বলেছেন...: Come to think of it, I repeat that the RFRA is un-Constitutional on the face of it.
As yourself point out the 1st Amendment says:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…" and there is nothing said about burdens, substantial or otherwise.

We have lost our way wandering in the weeds due to Justice Black somehow convincing his brethren to set the Amendment on its head and interpreting it as a free license for the government to interfere with the "free exercise of religion" all over the place.; ৭/৭/১৪, ২:১২ PM
dwick বলেছেন...: Ladies and gentlemen, we have a Godwin's Law Award winner for this thread: Althouse takes the prize on only the 16th comment!

Congratulations!; ৭/৭/১৪, ২:১৪ PM
jr565 বলেছেন...: There is a compelling govt interest in not letting people on hunger strikes die from hunger strikes. And there is a compelling govt interest to not let people who might gather to discuss criminal activity do so.
In the case of govt forcing companies to pay for contraceptives, the fact is contraceptives are cheap AND you can buy them at CVS. There is therefore no compelling interest to force religious people to buy them.
If you are in a prison setting there is a compelling govt interest to keep you locked up. You have limited protections, and you are allowed leeway with religion, but only insofar as govt is willing to grant in a prison setting. How is that contradictory?; ৭/৭/১৪, ২:১৭ PM
jr565 বলেছেন...: Alito didn't open a can of worms. He just interpreted existing law. if the problem is with the law, then look to those that passed the law.
Oh wait, it was Clinton wasn't it? YEt again, here we are with the dems arguing war on women and evil republicans and here were are having Clinton be the architect (think DOMA, DADT, deregulation of Banks, Iraq Liberation Act etc etc etc).; ৭/৭/১৪, ২:২১ PM
holdfast বলেছেন...: garage mahal said...

Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives.

Curious how you think this would play out. A Muslim employer stops serving pulled pork in the company caffeteria? Muslim employers refuse to offer bible camp tuition as a benefit?

I'd love to see a hypothetical that would be newly-permitted by the Hobby Lobby case and would actually be a real burden or imposition. Even the New Republic has recognized that Hobby Lobby is narrow and hardly any sort of game changer.; ৭/৭/১৪, ২:২২ PM
Ann Althouse বলেছেন...: "In war, if you are captured on the battlefield you don't get traditional due process. And they can be held for the duration of hostilities. IF the face trials then can face tribumals conducted under military justice."

Now, you're addressing the scope of constitutional rights. That's a question that follows after it is determined that this is a right that this person can invoke, which is what I have been talking about regarding the constitution.

As for the statutory rights under RFRA, RFRA is an undertaking by the federal government to limit itself with respect to everything it does. Then there are issues that follow on: what is a substantial burden, what is a compelling govt'l interest, and when is there a less restrictive alternative.; ৭/৭/১৪, ২:২৯ PM
jr565 বলেছেন...: Althouse wrote:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest."

Isn't it asked and answered by those two exceptions? is it in govts interest to let people confer to discuss terrorist activities or to die from hunger strikes? Therefore you can't use religion to achieve those.
Can you buy contraceptives and abortifacients absent Hobby Lobby paying for them? Yes, so then why burden Hobby Lobbby to pay for abortifacients.; ৭/৭/১৪, ২:৩১ PM
Ann Althouse বলেছেন...: "There is a compelling govt interest in not letting people on hunger strikes die from hunger strikes."

What is the connection between that and denying communal prayer? Even if it's some incentive, it's hard to see how that's the least restrictive alternative.

As noted in the post, security does not seem to be the interest the govt asserts.; ৭/৭/১৪, ২:৩৩ PM
damikesc বলেছেন...: But the first question is "Does this person have a right to religious exercise?".

For US citizens, it is a yes. Non citizens is a no.; ৭/৭/১৪, ২:৩৫ PM
David বলেছেন...: People seem to be having a real problem with the idea that RFRA is a statute; a limitation that congress put upon itself and which it can get rid of whenever it wants. So, if congress doesn't want detainees in Guantanamo not to have any rights under RFRA, it can just say so.; ৭/৭/১৪, ২:৩৬ PM
Hagar বলেছেন...: And a "compelling interest" is just what Ollie Douglas or Barack Obama thinks would be nice for the Government to do, never mind the Constitution!; ৭/৭/১৪, ২:৩৭ PM
damikesc বলেছেন...: Going with precedent, the power the government is claiming is irrelevant to a court finding if another one exists.; ৭/৭/১৪, ২:৩৯ PM
holdfast বলেছেন...: So which is less burdensome:

1)Using communal prayer as a carrot (or stick) to discourage hunger striking.

2) Strapping a detainee to a gurney and forcing food into his gullet via a tube shoved down his throat.

2 is clearly more violative of the person's bodily integrity, whereas 1 is a burden on the exercise of religion. 1 seems more reasonable on its face, but 2 is not restricted by the RFRA.; ৭/৭/১৪, ৩:১৫ PM
Jason বলেছেন...: If there's no security or safety risk, or it can be essentially mitigated into insignificance, I say, let 'em pray.; ৭/৭/১৪, ৩:১৯ PM
jr565 বলেছেন...: What is the connection between that and denying communal prayer? Even if it's some incentive, it's hard to see how that's the least restrictive alternative.

Prisons or detention centers sometimes put people in solitary confinement and/or prevent people from conferring with others. Whatever the compelling reason would be to allow that for non religious people would supercede religious requirement for assembly I would imagine.
Prisons and Gitmo already grant a lot of leeway for religious practice. But if they don't want people to meet up in groups then the reason for not wanting that would supercede any RFRA objections. Since they do already.
Prisons could argue they don't restrict religious practice except in cases where doing so is in furtherance of a compelling interest and the restriction is the easiest way to achieve that compelling interest.
In the case of allowing companies to opt out of paying for abortifacients it's not as if govt couldn't have paid for them or simply not covered them at all. And it's not as if there aren't easy ways to get them even if the companies didn't cover them in insurance plans.
I don't see how there would be too many other ways for prisons to address compelling interests but do what they do.; ৭/৭/১৪, ৩:২২ PM
Jerry Bowles বলেছেন...: Don't you ever get discouraged listening to all these low information, high opinion knuckledraggers on your own side expounding on international law and other things they know absolutely nothing about? Just curious.; ৭/৭/১৪, ৩:২৮ PM
Saint Croix বলেছেন...: The government is forbidden to take certain sorts of actions. Nothing is said there about who wants to exercise the freedom, only about controlling the federal government.

You tell 'em, A.A.!; ৭/৭/১৪, ৩:৩৫ PM
Hagar বলেছেন...: and it's over a hundred years old and stuff.; ৭/৭/১৪, ৪:২৮ PM
jr565 বলেছেন...: Is the issue with the Hobby Lobby case for liberals that it referenced the RFRA and said that Obama's actions were a violation of it, or are they made that the Supreme Court considered Hobby Lobby a person?; ৭/৭/১৪, ৪:৩২ PM
jr565 বলেছেন...: Althouse wrote:

What is the connection between that and denying communal prayer? Even if it's some incentive, it's hard to see how that's the least restrictive alternative.

As noted in the post, security does not seem to be the interest the govt asserts.

In truth we'd have to see what options are available to the govt to prevent a hunger strike. Don't see how communal meeting would really be related.; ৭/৭/১৪, ৪:৩৬ PM
SGT Ted বলেছেন...: They are enemy prisoners of war. The Geneva Conventions are operative for those guys, not necessarily the RFRA, nor do they get the protection of all civilians under US law.

Their meeting is a security risk. Their National Lawyers Guild Commie lawyers are playing bullshit lawyer games, for prisoners that really don't give a shit about the laws of the US, except where they can be used against us.; ৭/৭/১৪, ৪:৪৫ PM
Big Mike বলেছেন...: ... and, if so, whether the government has a compelling interest that cannot be served by a less restrictive means.

In their case, the risk that these individuals entail as a group generates the compelling interest.; ৭/৭/১৪, ৫:০৯ PM
Birkel বলেছেন...: Professor Althouse:

The problem with your argument is putting together two words: "communal prayer".

The government may not be allowed to interfere with the second word of your proposed phrase. However jails are specifically designed to prevent people communing together, no matter the purpose. That is, the jailers at Gitmo are free to stop prisoners gathering because it is a content neutral restriction.

And that neutrality is not upset when the government restricts the actions of some prisoners and not others. In fact, that goes toward proving the purpose of government not as a restriction on religious matters but as a restriction on gathering by criminals at war with the United States.; ৭/৭/১৪, ৫:৪৭ PM
Robert Cook বলেছেন...: "They are enemy prisoners of war."

How do you know? Because we're holding them captive? The one doesn't prove the other.

Well, they're prisoners of war, because we started a war against Afghanistan and have taken them prisoner. But...how do we know these particular men are or were terrorists? Many were just bought for bounty by the U.S. The bounty hunters who sold them to us may have just wanted the money, and kidnapped and brought us anyone they could take prisoner. Or perhaps some are victims of those who held personal or tribal grudges against them, and who turned them in as terrorists to us to settle these grudges. Or perhaps others were just in the wrong place at the wrong time, picked up in military dragnets.

Given the many former Gitmo prisoners--a majority, in fact--who have been quietly released over time, as no proof could be presented of their being guilty of anything, how can you know any of those still there are guilty? And, guilty of what? Or, assuming some of them were engaged in terrorism against America, which of them are? How many of them? What acts of terrorism?

I don't assert that none of the men at Gitmo are innocent of planning or taking part in acts of terrorism directed against the U.S.--although if all that can be shown is that they fought against U.S. troops invading their homeland, all one can say about that is they were defending their homeland--but...how do we know? How do you know? Because our government says so?

I hope we're all past the point of accepting anything said by the government without proof as being anything other than a lie.; ৭/৭/১৪, ৬:২৩ PM
Robert Cook বলেছেন...: "I thought the whole point of keeping these bozos in Cuba was so we could do cool things to them that wouldn't be allowed on U.S. soil."

That was what the Bush administration had in mind, but they were mistaken.

The Supreme Court disabused them of their ignorance right quick.; ৭/৭/১৪, ৬:২৯ PM
Robert Cook বলেছেন...: "BTW, non-citizens within the US actually are entitled to constitutional protections - which is why these people are kept at Gitmo, which is not within the US."

Even kept on Gitmo, those same protections apply. The Bushies tried an end run around the Constitution--those honorable, honorable men--but they were foiled by their ignorance...or hubris.; ৭/৭/১৪, ৬:৩৬ PM
Robert Cook বলেছেন...: "I realize many of these detainees are dangerous and have committed terrorist acts...."

How do you "realize" this? Is a "realization" the same as a verdict having been reached in a legal hearing, a verdict beyond all reasonable doubt?

I know I'm belaboring this "how do you know?" bit, but it is crucially important. How do we know our government is acting properly? Within the law? In accordance with the Constitution? Not just as it pertains to the prisoners we are holding at Gitmo, but...ever?

Do we just accept the government's actions and unverified claims as proper and legal? Do we trust the men and women in government to be forthright and honorable? Do we cast aside the doubts our founders had about the motives of men, doubts--(actually, knowledge of the corruption of men)--which caused some among them to demand a bill of rights be added to the Constitution? Do we assume men and women in power are more honorable and trustworthy than the founders knew the men of their time to be?

People the world over are stupid. Emotional. Pavlovian.Their government calls some other people "enemy" and this is all that is necessary for so many among them to froth like mad dogs for those "enemies" to be tortured, killed, rent limb from limb. Americans are no smarter than anyone else...we're just as dirt stupid and mad dog mean.

So, to protect ourselves--even if you don't particularly care at all about the people just like you who by happenstance live on bits of dirt that don't fall within our borders--to protect ourselves, we must hold our government to the strictest scrutiny in its every action, hold it to the highest standards of ethical and legal propriety in all cases, or we will be the victims of the government for whom we have released all restraints.

As Thomas Paine said:

"He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself."

This is always true, everywhere.; ৭/৭/১৪, ৬:৫৯ PM
Robert Cook বলেছেন...: "The United States have no jurisdiction over citizens of other countries, except such as may be visiting U.S. territory and are accepted as guests subject to rules regarding good behavior."

This is not about jurisdiction; this is about the limits the Constitution places on the U.S. government in its proper treatment of any persons that find themselves subject to American authority.; ৭/৭/১৪, ৭:০৫ PM
Just asking questions (Jaq) বলেছেন...: Obama's policy is better, similar in spirit to machine gunning lifeboats rather than being burdened with the occupant as prisoners on your ship, Obama just kills them with robots.

Much less messy for those not involved in cleaning up the blood, gathering up the separated heads, arms and legs, and dealing with the wounded, blinded, and crippled.

Having these guys alive still is one more of Bush's failures.; ৭/৭/১৪, ৭:১২ PM
Drago বলেছেন...: Robert Cook: "Well, they're prisoners of war, because we started a war against Afghanistan and have taken them prisoner."

LOL

There is so much stupidity and inaccuracy in that short sentence it's amazing that Cookie could cram it all in.

Kudos.

Cookie: "Is a "realization" the same as a verdict having been reached in a legal hearing, a verdict beyond all reasonable doubt?"

LOL

That this can be written by an October Surprise and 9-11 truther demonstrates the utter lack of self-awareness of those on the left.; ৭/৭/১৪, ৭:৪৫ PM
Nichevo বলেছেন...: Yes, also, dwick +1. Aside from your slappable ignorance, and if you don't know the diff between anything done to KSM et al, and what was done in the camps, you should learn it on your own pretty hide:

Sorry, were Jews Gypsies et al protected persons in Germany or France? Was that the idea of Poland as killing floor, that it was not LEGAL to do it at home?

And you, married to a Jew at one time. Is that why you got divorced, because he suddenly realized he was not married to a human being? What's the matter with you!; ৭/৭/১৪, ৭:৪৭ PM
chillblaine বলেছেন...: Any remaining Guantanamo detainees will be released by executive order in 2016. They will be returned to Afganistan as part of our SOFA with the Afgan government, or pardoned outright. If they were going to be tried, they would have been by now.; ৭/৭/১৪, ৮:০১ PM
Paco Wové বলেছেন...: "Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives."

Fascinating that in your little retaliatory fantasy that Muslims are so selective in their impositions. What gets you off the hook?

"Don't you ever get discouraged listening to all these low information, high opinion knuckledraggers"

Garage's constant litany of ignorance and hate is kind of a downer, but you know, keep your chin up, carry on, etc.; ৭/৭/১৪, ৮:৩২ PM
MayBee বলেছেন...: Is withholding communal prayer actually a law?

Isn't it more like a guideline?; ৭/৭/১৪, ৯:৪৭ PM
Revenant বলেছেন...: Can't wait for Muslims to impose their deeply held religious beliefs on white Christian conservatives

I hate to break this to you, but Christians and Jews are the only two religious groups Muslims are encouraged to get along with. The "people of the book" are supposed to be tolerated, albeit as second-class citizens.

Atheists like myself, and members of other religions? Convert to Islam or die, buddy.; ৮/৭/১৪, ২:০৬ AM
Revenant বলেছেন...: I thought the whole point of keeping these bozos in Cuba was so we could do cool things to them that wouldn't be allowed on U.S. soil.

That's the political reason, not the legal reason.; ৮/৭/১৪, ২:১৩ AM