People For the American Way Foundation

Ginsburg Concurrence Is an Important Reminder on Religious Liberty

The Supreme Court issued a unanimous ruling in Holt v. Hobbs yesterday upholding the religious liberty claim of a Muslim prisoner who was prohibited by corrections officials from growing a half-inch beard. As noted in our Supreme Court term preview of Holt v. Hobbs, the case involves a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Burwell v. Hobby Lobby, RLUIPA is triggered when the government imposes a "substantial burden on the religious exercise" of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

In this case, especially since so many other prisons around the country allow inmates to grow half-inch beards without a security problem, few expected the prison system would win this case. And it didn't. The Court's ruling was written by Justice Alito, author of the Hobby Lobby opinion, and all the other Justices signed on.

Importantly, while Justice Ginsburg – the author of the Hobby Lobby dissent – joined the Court's opinion, she also wrote a separate concurrence to emphasize a critically important point. In its entirety, it reads:

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. [internal citations removed]

The removed internal citations are to her Hobby Lobby dissent's discussion of how religious liberty has always been recognized as a shield to protect people's rights, not as a sword to deny others' rights. Fortunately, Holt v. Hobbs did not present an opportunity for the narrow five-person majority to continue their project, begun in Hobby Lobby, to wholly transform the concept of religious liberty. But Justice Ginsburg (joined by Justice Sotomayor) was right to remind us of the traditional meaning of that phrase in American society and law.