The inflexibility of low-level govt officials

Very interesting (and important?) case decided Tuesday by SCOTUS.  David French summarizes in Why We Should All Be Glad a Muslim Man Just Won His Religious-Liberty Case at the Supreme Court:

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.

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