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Lawyers For Gitmo Detainees Using Hobby Lobby To Argue For Expanded Religious Freedoms

Guantanamo Bay Camp Entrance

Lawyers for the prisoners being held at Guantanamo Bay are using the Court’s recent decision in the Hobby Lobby case in an effort to expand their client’s religious expression rights while in custody:

Lawyers for two Guantanamo Bay detainees have filed motions asking a U.S. court to block officials from preventing the inmates from taking part in communal prayers during the Islamic holy month of Ramadan. The lawyers argue that – in light of the Supreme Court’s recent Hobby Lobby decision – the detainees’ rights are protected under the Religious Freedom Restoration Act (RFRA).

The motions were filed this week with the Washington D.C. district court on behalf of Emad Hassan of Yemen and Ahmed Rabbani of Pakistan. U.K.-based human rights group Reprieve said both men asked for the intervention after military officials at the prison “prevented them from praying communally during Ramadan.”

During Ramadan, a month of prayer and reflection that began last weekend, Muslims are required to fast every day from sunrise to sunset. But what is at issue in this case is the ability to perform extra prayers, called tarawih, “in which [Muslims] recite one-thirtieth of the Quran in consecutive segments throughout the month.”

U.S. Army Lt. Col. Myles B. Caggins III, a spokesman for the Department of Defense, told Al Jazeera on Friday that the “Defense Department is aware of the filing,” and that the “government will respond through the legal system.”

The detainees’ lawyers said courts have previously concluded that Guantanamo detainees do not have “religious free exercise rights” because they are not “persons within the scope of the RFRA.”

But the detainees’ lawyers say the Hobby Lobby decision changes that.

“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,” the lawyers argued in court papers.

In its controversial Hobby Lobby decision, the Supreme Court ruled Monday that the contraception insurance coverage requirement in the Affordable Care Act – also known as Obamacare – violated the rights of “closely held for-profit corporations,” if a company’s owners object to birth control on religious grounds. The court, which decided the case 5-4, said that the mandate “substantially burdens” the corporation’s exercise of religion in violation of RFRA.

Lawyers for the detainees also contend that both Hassan and Rabbani are being prevented from participating in communal prayers because they are on hunger strike.

“Why are the authorities at Guantanamo Bay seeking to punish detainees for hunger striking by curtailing their right to pray? If, under our law, Hobby Lobby is a ‘person’ with a right to religious freedom, surely Gitmo detainees are people too,” said Cori Crider, an attorney for the detainees and a director at Reprieve.

The Defense Department did not directly address whether the men were being punished for their hunger strike, but responded more broadly.

“We are committed to religious freedoms and practices for the detainees, keeping in mind the overall goal of security and safety for detainees and staff,” Caggins said.

Since the filings in these cases are generally not made public, it’s hard to say just how strong a legal argument the prisoner’s attorneys have here. In general, the issue of religious accommodations for people in custody has been one that frequently finds itself before the courts, even though such cases rarely make their way to the Supreme Court. These “prisoner free exercise” cases as they are typically require courts to balance the Constitutional rights of the prisoner with the interests of prison authorities to maintain order and other similar goals. The same applies in the situation at Gitmo even though its a military prison. In fact, this isn’t the first time that there have been reports of litigation related to the ability of Guantanamo Bay prisoners to practice their faith and, while the results of those actions are sealed, it seems safe to assume that the applications are judged by generally the same legal standards as the claims filed by prisoners in civilian prisons.

Given all of that, I am not at all sure that the Hobby Lobby decision really changes much of anything when it comes to the issues surrounding the ability of prisoners to freely exercise their faith. As I noted in my post about the decision, in the case the Supreme Court applied a balancing test to determine if the burden being placed on the religious rights of person making the claim is outweighed by a compelling government interest that is being accomplished by the least restrictive means possible. In Hobby Lobby, the Court determined that there were means available to achieve the goal of greater availability of contraceptives that were less of an intrusion on religious liberty than the mandate that the owners of Hobby Lobby complained about. In this case, the balancing test would be between whatever expanded religious practices the prisoners in question are seeking and the needs of prison authorities to maintain order and discipline. Quite obviously, in this case the government has a stronger argument than they did in Hobby Lobby.

No doubt, many on the political left will get a chuckle out of the idea that a decision conservatives have praised is being utilized in this matter, and indeed some are. However, it’s worth nothing that this is what happens with Court precedent, it get’s used in future arguments in future cases. Whether that argument will be ultimately persuasive is an entirely different question.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    They aren’t Christians so they don’t stand a chance in this countries court system.
    The SCOTUS has chosen our Nat’l religion.
    Others need not apply.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 1

  2. @C. Clavin:

    The matters will be handled by the military court system, and based on reports in the past the military has actually been very accommodating when it comes to the ability of the prisoners to practice their religion.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. al-Ameda says:

    Well, after all, a government operated prison is a religious establishment.

    Like or Dislike: Thumb up 7 Thumb down 0

  4. EddieInCA says:

    Doug –

    Professor Althouse has a very different reading than you do. I’m paraphrasing here: She is claiming that since Hobby Lobby was not decided on Constitutional grounds, but instead on Legislative grounds, that the Gitmo detainees might have a valid case. Her take is more in the comments than in the actual post.

    https://www.blogger.com/comment.g?blogID=6329595&postID=6461220492211631494

    Does this make a difference?

    Like or Dislike: Thumb up 7 Thumb down 0

  5. PD Shaw says:

    Since 1993, there have been about 2500 federal court opinions containing the phrase: “Religious Freedom Restoration Act.”

    Like or Dislike: Thumb up 2 Thumb down 0

  6. PD Shaw says:

    @Doug, I think “Eddie Althouse” has a point. I think the issue arises either under (a) the Religious Freedom Restoration Act, or (b) the Religious Land Use and Institutionalized Person Act. They are both interpreted with the same balancing test, but I think (a) applies to the federal government and (b) applies to the states in zoning and prison cases.

    There are tons of religious freedom cases brought by prisoners, and its not at all clear why Hobby Lobby would be useful, as opposed to other prisoner review cases.

    @Eddie, I’m not sure I agree with Althouse’s assumption that domestic law applies to Gitmo the same as it does in the States. That the Bush administration was wrong in assuming that no domestic law constraints apply there, isn’t the same as domestic law constraints apply in the same manner. It may very well be that the rights of prisoners in a U.S. prison are not the same as those detained in Gitmo. I have no idea, and I’m not sure it matters in the vast scheme of things.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. @EddieInCA:

    I didn’t say that they don’t have a valid claim. I said that the balancing test that would be applied in their case is far different from the one that was applied in Hobby Lobby.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. EddieInCA says:

    Doug –

    Thanks for that, and not trying to be snarky… but haven’t the Supreme Court justices who voted in the majority for Hobby Lobby put the Surpreme Court in a position where they must now judge the validity of religious beliefs in all sorts of circumstances and religions?

    If so, doesn’t that create a problem in what is supposed to be a secular society?

    I’m one of those who can’t, even for a minute, figure out why certain religious beliefs are “valid” (Hobby Lobby/Contraception) when it comes to the Supreme Court and others might not be (Jehovah’s Witnesses/Transfusions) – per Alito’s decision.

    Like or Dislike: Thumb up 10 Thumb down 0

  9. @EddieInCA:

    haven’t the Supreme Court justices who voted in the majority for Hobby Lobby put the Surpreme Court in a position where they must now judge the validity of religious beliefs in all sorts of circumstances and religions?

    No, Congress did that when it passed the Religious Freedom Restoration Act in 1993.

    Like or Dislike: Thumb up 1 Thumb down 2

  10. al-Ameda says:

    @EddieInCA:

    but haven’t the Supreme Court justices who voted in the majority for Hobby Lobby put the Surpreme Court in a position where they must now judge the validity of religious beliefs in all sorts of circumstances and religions?

    Exactly, and as we’re now learning, the Court majority does not intend that the Hobby Lobby opinion be construed or applied narrowly.

    I personally do not see how the nexus is sensibly made to square-up detainee religious rights with corporate employee rights, but here we go.

    Like or Dislike: Thumb up 6 Thumb down 0

  11. PD Shaw says:

    @EddieInCA: The government cannot determine what religious beliefs are valid; that would violate the Constitution. The RFRA requires the government to accommodate religious beliefs that are sincerely held.

    Like or Dislike: Thumb up 4 Thumb down 0

  12. C. Clavin says:

    @EddieInCA:

    they must now judge the validity of religious beliefs

    The SCOTUS specifically DID NOT evaluate the sincerity of HL’s beliefs…or even, for that matter, the science of contraception. The quite clearly took the claims of religious belief at face value…and the same with claims of what the identified contraceptives do…The SCOTUS was wholly uninterested in what they actually do. So today it is only necessary to claim religious beliefs…it’s not necessary to actually hold them. And we all know how Republicans feel about science to begin with….

    Like or Dislike: Thumb up 8 Thumb down 1

  13. EddieInCA says:

    @PD Shaw:

    Okay… so the government has to judge which religious beliefs “are sincerely held” in order to provide an accommodation?

    This seems to me to be a difference without a distinction.

    Still seems like the government (or judges) have to decide which religious activities are “sincerely held” and worthy of an accommodation.

    Or do I have that wrong?

    Like or Dislike: Thumb up 11 Thumb down 0

  14. Stonetools says:

    So far it looks like Ginsburg and not Alito is going to be right about the potential for the Hobby Lobby decision to cause confusion and headache in the Courts. Alito may have wanted to limit it just to keeping sex consequential but the genie is out of the bottle. Serves him and the rest of the majority right.

    Like or Dislike: Thumb up 9 Thumb down 0

  15. PD Shaw says:

    @EddieInCA: It is a subjective test, as opposed to objective, which makes all of the difference. In an objective test, the court might find itself asking whether praying towards Mecca, or consuming wine or peyote are really religious mandates. The Baptists use grape fruit juice, are they not Christians? What about the person with religious beliefs outside of the framework of organized religion?

    If an employer decides after Hobby Lobby to stop covering contraception, and tweets that it is doing so to push back on “Democratic overreach” and “Obama’s steady-march towards fascism,” the government could refuse the accommodation since its not based upon “sincere” religious beliefs, but politics.

    In 2005, the SCOTUS ruled that prisoners, who were adherents of “nonmainstream” religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian, had the right to have their beliefs accommodated by the prison and this didn’t violate the Constitution’s establishment clause. The unanimous decision was written by Justice Ginsburg: Cutter v. WIlkinson.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. EddieInCA says:

    @PD Shaw:

    You’re making my point for me, unless I am misunderstanding you. Seems to me that the courts are now in a position where they, and they alone, get to decide what is sincerely held religious belief and worthy of an accommodation from existing law (the ACA).

    Jehovah’s Witnesses sincerely believe that Blood Transfusions are morally wrong, and they use Biblical passages to support their belief. Why should the JW owners of a closely held company have to provide insurance coverage to anyone who might get a blood transfusion with their health insurance? I can’t see the difference between this and the contraception issue.

    Muslim owners of businesses, closely held, have many beliefs that, based on the Hobby Lobby decision, deserve an accommodation.

    I don’t see this ending up well, for the Supreme Court, or for the country.

    Like or Dislike: Thumb up 9 Thumb down 0

  17. PD Shaw says:

    @EddieInCA: Do you believe the government can decide whether a conscientious objector is “sincere” in his/her opposition to military service?

    Courts decide in a wide-variety of situations whether someone’s professed beliefs are sincere, without passing judgment on whether those beliefs are true, reasonable or part of an organized belief system.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. EddieInCA says:

    @PD Shaw:

    I don’t have a problem with the government deciding what is “sincere” or not in a secular setting.

    I do have a problem with certain religious practices are deemed sincere while others are not. I do have a problem with the beliefs of certain religions being judged as “worthy of an accommodation” and others not.

    Can’t you even acknowledge that this presents a quandary for the courts going forward? Or am I mistaken?

    Like or Dislike: Thumb up 10 Thumb down 0

  19. PD Shaw says:

    @EddieInCA: Courts do not acknowledge whether a certain religious practice is sincere; it is whether the person’s belief is sincere. If a person says that they are opposed to serving in the Vietnam War, but not in World War II, he is not sincere in his moral opposition to war. He is opposed to the policy.

    As noted earlier, there have been 2500 federal court cases just involving the RFRA since 1993. Prior to 1993, there were probably thousands more from 1963 to 1990 under the Court’s religious freedoms jurisprudence, and even before then there were thousands of statutes that required religious accommodations on a statute-by-statute basis. State courts deal with these issues as well. The courts have been dealing with these issues for a long time.

    Like or Dislike: Thumb up 1 Thumb down 3

  20. Stonetools says:

    @EddieInCA:

    Eddie you are spot on. This is precisely what Ginsburg said in her dissent. Alito and the majority want to limit it to contraception ONLY, but his rationale is really applicable to every kind of religious practice. He apparently thought it was good enough to say “thus far and no further” but plaintiffs are already going beyond that and quite frankly there is no limiting principle that would constrain judges to restrict it to contraception only.
    There is one federal judge who has already condemned the decision as opening the floodgates. He told the High Court that it was time to literally STFU.

    Like or Dislike: Thumb up 6 Thumb down 0

  21. EddieInCA says:

    @PD Shaw:

    With all due respect, P.D. Shaw, I ask one question?

    If this is true, and I have no doubt that it is as you say…

    As noted earlier, there have been 2500 federal court cases just involving the RFRA since 1993. Prior to 1993, there were probably thousands more from 1963 to 1990 under the Court’s religious freedoms jurisprudence, and even before then there were thousands of statutes that required religious accommodations on a statute-by-statute basis. State courts deal with these issues as well. The courts have been dealing with these issues for a long time.

    … why was there a need for the Hobby Lobby case to go to the Supreme Court?

    Why did the Supremes take the case if the courts had been dealing with these issues for a long time?

    Like or Dislike: Thumb up 5 Thumb down 0

  22. PD Shaw says:

    @EddieInCA: The Affordable Care Act is a different kind of law. I’m saying that many of the principles are not new, but new laws can create reasonable questions about how those principles apply here. Each case is decided by its facts.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. EddieInCA says:

    P.D. Shaw –

    Facts? Really? The Supreme Court didn’t rule on facts. They ruled on beliefs, and anti-scientific, emotional pleas. The plaintiffs called certain drugs abortofacients. Science disagrees. The judges spoke to “sincerely-held”, which cannot be proven. Hobby Lobby themselves, as a company, provided these very same contraceptives until filing the lawsuit. So, please, don’t insult us by saying it was based on facts.

    Again, not trying to be difficult, but I can’t see the consistency in your position. I can’t see how this ruling, in the future, can deny ANY religion ANY ‘sincerely held” belief to force an accommodation from laws they don’t like that don’t discriminate in any other way.

    What it the consistent, logical, rational, basis on which judges can deny any religion any “sincerely held” belief that they want to use to remove themselves from obeying laws to which they wish to be granted an accommodation?

    I seriously can’t wrap my head around what that would look like. Or why this particularly-held religious belief is any more sincerely-held than others.

    But thank you for the debate.

    Like or Dislike: Thumb up 5 Thumb down 0

  24. anjin-san says:

    My gut is telling me that we just took the first step on the road to establishment of a state religion. Sounds ridiculous, I know, but this decision is ridiculous, and it is coming from the supreme court. That’s pretty scary.

    Like or Dislike: Thumb up 5 Thumb down 1

  25. DrDaveT says:

    @PD Shaw:

    Do you believe the government can decide whether a conscientious objector is “sincere” in his/her opposition to military service?

    I believe they have done an extremely poor job of that in the past. Quakers get more sympathy than Jainists, who get more sympathy (by far) than atheists.

    Once you take the position that an action is more acceptable if done for religious reasons than if done for ‘mere’ ethical reasons, you’ve jumped the constitutional shark.

    Like or Dislike: Thumb up 8 Thumb down 0

  26. Dave D says:

    Why don’t they just have their lawyer file paperwork to become a non-profit religious corporation and then they can get rights. If they are non-profit they don’t have to worry about the lack of money in the fact that they just want extra prayer, but with incorporation come legal rights. I don’t see a downside and it might even allow them to solicit donations which will most assuredly make their lives better, just look at all the cool stuff Billy Graham, Pat Robertson and Orel Roberts had/have.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. Tony W says:

    @PD Shaw:

    If a person says that they are opposed to serving in the Vietnam War, but not in World War II, he is not sincere in his moral opposition to war. He is opposed to the policy.

    You’re still making Eddie’s point – are you saying, opposition to contraceptives by one religion is not the same as opposition to blood transfusions by another?

    Like or Dislike: Thumb up 2 Thumb down 0

  28. Barry says:

    @C. Clavin: Seconding this. SCOTUS not only said that the government can’t judge the sincerity of a party’s religious beliefs, but also can’t judge the factual claims being made. If those birth control methods were indeed abortifacients, then the government couldn’t make them pay for it.

    The heart of the decision was that the facts didn’t matter, when *certain* religious beliefs were involved.

    Like or Dislike: Thumb up 2 Thumb down 0

  29. Barry says:

    Doug: ” As I noted in my post about the decision, in the case the Supreme Court applied a balancing test to determine if the burden being placed on the religious rights of person making the claim is outweighed by a compelling government interest that is being accomplished by the least restrictive means possible. ”

    They *declared* a narrow decision, which basically said that when certain forms of birth control was involved, religious claims were hearable, but not for any other issues. That in and of itself was a sectarian decision.

    They then demonstrated that they were liars with the Wheaton College decision, which opened it to all forms of birth control, and stated that even opting out of a government program is a burden. IANAL, but I’ve never heard of that (if anybody has heard of such things, please let me know).

    They’ve also sent back a large number of decisions for review, which means that this decision will be far broader than Alito said.

    Like or Dislike: Thumb up 3 Thumb down 0

  30. Barry says:

    @Dave D: “Why don’t they just have their lawyer file paperwork to become a non-profit religious corporation and then they can get rights.”

    Because they are highly dishonest, and want to have it both ways. They want the legal and financial advantages of a public stock corporation, but still want to opt out of things if they please, like a nonprofit.

    Like or Dislike: Thumb up 2 Thumb down 0

  31. PD Shaw says:

    @Tony W: I should have been clear that I’ve only being trying to address the first part of the analysis. To trigger the inquiry, a person must have a sincere religious belief. Then the question becomes balancing the the person’s interest and the government’s, with particular attention to whether there are less restrictive means of achieving the government’s objective (conflict avoidance). That a person has a sincere belief about blood transfusions doesn’t automatically require that belief to be accommodated.

    These detainees probably have a sincere belief about the lack of communal prayer. It could be challenged if, for example, the guards found messages showing that the demand for communal prayer was intended to provide opportunities for plotting or achieving an escape (live or dead). It could not be challenged on the grounds that communal prayer is not a requisite of Islam (as opposed to prayer generally).

    Like or Dislike: Thumb up 2 Thumb down 0

  32. Dave D says:

    @Barry: I meant the prisoners who want to be able to pray. Seems to me incorporation is the way to go if you want rights these days.

    Like or Dislike: Thumb up 1 Thumb down 0

  33. rudderpedals says:

    It seems the Court forgot to run the first part of the test, or perhaps I missed the part where it analyzed the burden and determined it was substantial. If I didn’t miss it the Court just takes it on faith that every burden is substantial and moves on to strict scrutiny…at least when HL is the plaintiff.

    Like or Dislike: Thumb up 1 Thumb down 0

  34. jd says:

    “Then the question becomes balancing the the person’s interest and the government’s”
    Exactly!
    The subject is Obamacare and the Court is conservative.
    How could the result surprise anyone?

    Like or Dislike: Thumb up 0 Thumb down 0