In a little-noticed Supreme Court argument today, the government admitted something quite important. The case is Holt v. Hobbs, which involves a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by a state prisoner seeking to maintain a religiously mandated beard. In Hobby Lobby v. Burwell (2014), if you recall, one of Justice Ginsburg’s key arguments in dissent was that the Religious Freedom Restoration Act (RFRA) merely reinstates case law prior to the Supreme Court’s decision in Employment Division v. Smith (1990) rather than imposing actual strict scrutiny on all of federal law.
This morning during the government’s argument, Justices Kagan and Ginsburg were shadowboxing with the Supreme Court’s majority decision in Hobby Lobby. On pages 24–26, for instance, Justices Kagan and Scalia sparred about whether the cost of religious accommodation would affect the analysis, with the federal government’s lawyer steadfastly defending the text of the statute.
But the really interesting exchange came a couple of pages earlier, on pages 21–24 of the transcript. Justice Ginsburg asked whether pre-RLUIPA case law was intact or whether it had been overruled by RLUIPA:
JUSTICE GINSBURG: Mr. Yang, before you sit down, your brief lists a whole series of cases on page 14 that were decided before RLUIPA. Safley and a bunch of others. Are all those practices which we approved up for grabs now under RLUIPA? There – there were restrictions on receipt of publications was one.
MR. YANG: I think the analysis is different now. It has – it could be litigated. Any of these claims could be litigated. The State would then have the burden of coming forward to show that the restriction would, in fact, be a least restrictive means of –
JUSTICE GINSBURG: So they would – all those that we approved, correspondence limitations, all those would have to be looked at anew under the RLUIPA standard.
MR. YANG: I think that’s right, because if you were to go back to pre-RLUIPA case law, no one would doubt that a State could, in fact, prohibit a 1/2-inch beard under the prior constitutional standards. But Congress has set a higher bar and it imposes upon States the obligation to come forward to explain and justify it.
This is an ironic twist. The government is here arguing that the religious liberty statute imposed a more protective standard than did the pre-statute case law, that is, strict scrutiny. That ought to imply similar treatment of its sister statute RFRA, which uses nearly identical wording to RLUIPA. But in Hobby Lobby, the government argued (and Justice Ginsburg concluded) that RFRA imposed a less protective standard inferred from pre-Smith case law, even though RFRA used precise language describing strict scrutiny.
It’s certainly interesting to see Justices Ginsburg and Kagan doing their best to drive a wedge between RFRA and RLUIPA, but it’s even more interesting to see the federal government’s lawyer resolutely refusing to take the bait.
Update: An earlier version of the headline indicated that the government lawyer was Deputy Solicitor General, not Assistant Solicitor General.