Amicus Curiae Brief — Conraad Hoever, Petitioner v. P. Belleis, et al.

No. 17-1035

IN THE

Supreme Court of the United States

CONRAAD HOEVER.

Petitioner,

v.

P. BELLEIS, ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF AMICI CURIAE OF PROFESSORS

DOUGLAS LAYCOCK AND

MICHAEL W. MCCONNELL

IN SUPPORT OF PETITIONER

Anthony J. Dick

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

Neil C. Scott

JONES DAY

250 Vesey Street

New York, NY 10281

Nicole Henning

Counsel of Record

JONES DAY

77 West Wacker Dr.

Chicago, IL 60601

(312) 782-3939

nhenning@JonesDay.com

Counsel for Amici Curiae

i

QUESTIONS PRESENTED

1. Does the First Amendment extend to a

prisoner’s non-mandatory religious exercise?

2. Does 42 U.S.C. § 1997e(e) permit a prisoner to

recover compensatory damages against prison officials who violate the First Amendment?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 2

I.

Neither the Constitutional Text

Nor This Court’s Precedent

Supports Any Distinction Between

Mandatory and Non-Mandatory

Religious Exercise................................................. 2

II. Limiting The Free Exercise Clause

To “Mandatory” Religious Exercise

Would Wrongly Exclude Many Core

Religious Practices................................................ 5

A. The Free Exercise of Religion

Requires Protecting NonMandatory Religious Practices ....................... 5

B. The Same Definition of Religious

Exercise Should Apply to

Prisoners .......................................................... 7

III. Protecting Only “Mandatory”

Religious Exercise Would Be

Discriminatory And Intrusive .............................. 9

CONCLUSION .......................................................... 12

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Brandon v. Bd. of Ed. of Guilderland

Cent. Sch. Dist.,

635 F.2d 971 (2d Cir. 1980) ................................. 10

Church of the Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993) ............................................ 6, 9

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 4

Employment Div., Dep’t of Human Res.

of Or. v. Smith,

494 U.S. 872 (1990) ............................................ 2, 3

Holt v. Hobbs,

135 S. Ct. 853 (2015) .............................................. 8

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 2

Sossamon v. Texas,

563 U.S. 277 (2011) ................................................ 9

Thomas v. Review Bd. of Indiana,

450 U.S. 707 (1981) ................................................ 7

Turner v. Safley,

482 U.S. 78 (1987) .............................................. 3, 8

Witters v. State Comm’n for the Blind,

771 P.2d 1119 (1989).............................................. 7

Wood v. Yordy,

753 F.3d 899 (9th Cir. 2014) .................................. 9

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. Amend. I ......................................... passim

42 U.S.C. § 2000bb ...................................................... 4

42 U.S.C. § 2000cc ................................................... 4, 8

OTHER AUTHORITIES

Black’s Law Dictionary (10th ed. 2014)...................... 2

H.R. Rep. 106-219........................................................ 4

Douglas Laycock,

2 RELIGIOUS LIBERTY: THE FREE

EXERCISE CLAUSE (2011) .............................. 5, 6, 11

Douglas Laycock,

Towards A General Theory of the

Religion Clauses: The Case of

Church Labor Relations and the

Right to Church Autonomy,

81 Colum. L. Rev. 1373 (1981)............................. 11

Letter from Thomas Jefferson to

Rev. Samuel Miller, 23 Jan. 1808 ....................... 10

1

INTEREST OF AMICI CURIAE

Amici are legal scholars whose research and

scholarly interests focus on religious liberty. Douglas

Laycock is the Robert E. Scott Distinguished

Professor of Law and Professor of Religious Studies

at the University of Virginia. Michael W. McConnell

is the Richard and Frances Mallery Professor and

Director of the Constitutional Law Center at

Stanford Law School, and a Senior Fellow at the

Hoover Institution. 1

SUMMARY OF ARGUMENT

This amicus brief explains why the Court should

grant certiorari on the first question presented. The

Court should clarify that the Free Exercise Clause

protects “non-mandatory” religious practices such as

reading the Bible. As explained in the petition, the

question is not only extremely important but also the

subject of a lopsided circuit split. In addition, as

explained more fully below, the Eleventh Circuit’s

outlier rule cannot be squared with this Court’s

precedent or the constitutional text. It reflects a

mistaken view of religious exercise that has already

caused significant confusion in the lower courts, and

it is likely to cause ongoing mischief unless this

Court intervenes.

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amici or their counsel

made any monetary contribution intended to fund the

preparation or submission of this brief. All parties received

timely notice of amici’s intent to file this brief as required under

Rule 37. Counsel for both petitioner and respondents consented

to the filing of this brief.

2

ARGUMENT

I.

Neither the Constitutional Text Nor This

Court’s Precedent Supports Any Distinction

Between Mandatory and Non-Mandatory

Religious Exercise

The First Amendment provides that “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.” The

plain text of this provision provides no basis for

distinguishing between mandatory and nonmandatory religious practices. According to its

ordinary meaning dating back to the 14th Century,

“to exercise” simply means “[t]o make use of ” or “to

put into action.” Black’s Law Dictionary (10th ed.

2014). People thus exercise their religion whenever

they choose to put their religious beliefs into action,

not just when they think they must.

This Court’s precedent confirms that religious

“exercise” refers to any “religiously motivated

conduct,” including the “performance of (or

abstention from) physical acts . . . for religious

reasons.” Employment Div., Dep’t of Human Res. of

Or. v. Smith, 494 U.S. 872, 875, 877 (1990). See also,

e.g., Sherbert v. Verner, 374 U.S. 398, 403 (1963)

(describing religious exercise as any “conduct

prompted by religious principles”). Thus in Smith,

for example, it was sufficient to establish the

existence of a religious exercise by noting that the

“sacramental use of peyote” at issue was “religiously

motivated,” with no consideration of whether it was

religiously mandatory. 494 U.S. at 875. And of

particular relevance here, this Court has recognized

in the prison context that “the commitment of

3

marriage may be an exercise of religious faith,” again

with no consideration of whether getting married is

religiously required. Turner v. Safley, 482 U.S. 78, 96

(1987).

In his opinion for the Court in Smith, Justice

Scalia provided a few other common examples of

religious exercise, including “assembling with others

for a worship service, participating in sacramental

use of bread and wine, proselytizing, abstaining from

certain foods or certain modes of transportation.” 494

U.S. at 877. Notably, most of these illustrative

examples are non-mandatory in many circumstances.

For example, there is no obligation for a Catholic to

attend Mass on weekdays—or to take communion

more than once a year—but that does not make these

practices any less of a religious exercise.

To be sure, Smith held that there is typically no

constitutional right to engage in a religious exercise

if doing so would violate a “neutral, generally

applicable law.” 494 U.S. at 881. That holding

overturned the prior constitutional rule that any

substantial burden on religious exercise must be

justified by a “compelling governmental interest.” Id.

at 883. At the same time, however, Smith left

untouched the longstanding definition of religious

exercise as including any “religiously motivated”

conduct. Id. at 875. Indeed, the breadth of that

definition was one of the main justifications for the

majority’s view that most substantial burdens on

religious exercise should not be subject to exacting

judicial scrutiny, lest each religious adherent

“become a law unto himself.” Id. at 885.

In recognition of this Court’s longstanding

interpretation, Congress has also taken the view that

4

religious exercise includes non-mandatory religious

practices. In response to the Smith decision, a nearly

unanimous bipartisan majority enacted the Religious

Freedom Restoration Act (RFRA), which was

expressly designed “to restore the compelling interest

test . . . and to guarantee its application in all cases

where free exercise of religion is substantially

burdened.” 42 U.S.C. § 2000bb(b)(1). While the

statute enacted a new statutory standard of review,

it did not alter the underlying definition of religious

exercise, providing merely that “‘exercise of religion’

means the exercise of religion under the First

Amendment to the Constitution.” When that

definition

generated

unanticipated

litigation,

Congress amended it to expressly include “any

exercise of religion, whether or not compelled by, or

central to, a system of religious belief.” 42 U.S.C.

§ 2000bb-2(4), incorporating the definition in the

Religious Land Use and Institutionalized Persons

Act, 42 U.S.C. 2000cc-5(7)(A) (emphasis added). See

H.R. Rep. 106-219 at 13, 30 (explaining that this

definition was “clarifying issues that had generated

litigation under RFRA”).

In City of Boerne v. Flores, 521 U.S. 507 (1997),

this Court held that RFRA’s heightened standard of

judicial scrutiny could not be enforced against the

states. It did not, however, cast any doubt on the

standard definition of religious exercise, which has

generally been understood to refer to all “religiously

motivated conduct” before, during, and after the

Smith decision. Id. at 538 (Scalia, J., concurring).

5

II. Limiting The Free Exercise Clause To

“Mandatory” Religious Exercise Would

Wrongly Exclude Many Core Religious

Practices

A. The Free Exercise of Religion Requires

Protecting Non-Mandatory Religious

Practices

Denying protection to non-mandatory religious

practices would allow the government to selectively

prohibit a vast array of the most cherished religious

activities without any constraint under the Free

Exercise Clause. For Protestants, there is no

obligation to host a Bible study in your home, teach

Sunday school, or join the church choir. For

Catholics, there is no obligation to pray the rosary,

take daily communion, or attend vespers. For Jews,

there is no obligation to recite Psalms or to eat

matzah outside of the Passover Seder. For Muslims,

there is no requirement to pray on a traditional

“prayer rug,” even though many do so as a matter of

course.

Construing the Free Exercise Clause to

categorically exclude such religious practices and

customs would enshrine an artificially narrow,

purely negative view of religion that consists of

nothing more than following the rules. On this view,

“[i]t is as though all of religious experience were

reduced to the Book of Leviticus,” which is a “view of

religion held by many secularized adults, who left

the church in their youth after hearing much

preaching about sin and failing to experience any

benefits.” Douglas Laycock, 2 RELIGIOUS LIBERTY:

6

THE FREE EXERCISE CLAUSE, 93 (2011). In reality,

however “serious believers rarely concentrate their

efforts on identifying the minimum that God

requires.” Id. at 95. Instead they engage in a wide

variety of “affirmative, communal, and spiritual”

activities that are plainly religiously inspired, but by

no means required. Id. at 93

Under any plausible reading of the Free Exercise

Clause, the government cannot prohibit religious

practices with a law that is not neutral, or that is

less than generally applicable, without satisfying the

most stringent constitutional scrutiny. See Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 531 (1993). But under a “non-mandatory”

view of religious exercise, the government could

prohibit all of the practices described above without

giving rise to any Free Exercise claim whatsoever.

Indeed, under that artificially narrow view, “no free

exercise issue would be raised by a People’s Bureau

for the Management and Supervision of NonMandatory Aspects of Religious Practice.” Laycock, 2

RELIGIOUS LIBERTY, at 95.

While such hypotheticals might seem far-fetched,

the possibility even of targeted religious restrictions

on non-mandatory religious practices is all too real.

For example, some women choose to wear a veil out

of a sense of religious modesty even though they do

not believe the practice is strictly required by their

religion. But if a state followed the example of

France and banned the practice of wearing a veil in

public, surely the First Amendment would recognize

a Free Exercise claim.

To be sure, this Court has properly recognized

that religious exercise includes “conduct mandated

7

by religious belief.” Thomas v. Review Bd. of Indiana

Employment Sec. Div., 450 U.S. 707, 718 (1981). But

the Court should now take the opportunity to clarify

that the Free Exercise Clause is not limited to that

subset of religious practice. That clarification is long

overdue. After Thomas was decided, one state

Supreme Court astonishingly appeared to conclude

that entering the religious ministry is not a protected

form of religious exercise because it is not “conduct

mandated by religious belief.” Witters v. State

Comm’n for the Blind, 112 Wash. 2d 363, 371, 771

P.2d 1119, 1123 (1989) (quoting Thomas, 450 U.S. at

718).

The holding in the present case is equally

alarming. In the decision below, the Eleventh Circuit

applied its “non-mandatory” rule to hold that

studying the Bible is not a protected religious

exercise because it is “beneficial, not mandatory”

under the plaintiff ’s religious beliefs. Pet. App. 8a.

By the same logic, the Free Exercise Clause would

pose no obstacle to the government’s targeted

prohibition of scriptural reading for virtually every

religious faith, since very few religions regard the

reading of scripture as mandatory in most

circumstances.

B. The Same Definition of Religious

Exercise Should Apply to Prisoners

Although Free Exercise claims can pose a special

challenge in the prison context, the proper way to

address that challenge is by taking into account the

prison’s legitimate penological interests, not by

creating an ad hoc exception to the ordinary meaning

of religious exercise. That is precisely the teaching of

8

Turner v. Safley, which recognized that prisoners

retain their the right to “exercise [their] religious

faith,” albeit “subject to substantial restrictions as a

result of incarceration.” 482 U.S. at 95–96.

The workability of robust Free Exercise claims in

the prison context has been strongly confirmed by

nearly two decades of cases applying the Religious

Land Use and Institutionalized Persons Act of 2000

(RLUIPA). Under RLUIPA, any prison that accepts

federal funds is prohibited from substantially

burdening an inmate’s religious exercise unless doing

so is the “least restrictive means” of furthering a

“compelling governmental interest.” 42 U.S.C.

§ 2000cc–1(a). Like RFRA, RLUIPA broadly defines

“religious exercise” to include any religious practice

regardless of whether it is “compelled by, or central

to, a system of religious belief.” Id. § 2000cc–5(7)(A).

Accordingly, in order to qualify for protection, an

inmate’s religious practice need not be “mandatory”

in any sense, but must only be “sincerely based on a

religious belief and not some other motivation.” Holt

v. Hobbs, 135 S. Ct. 853, 862 (2015). Despite the

breadth of this protection, this Court has recognized

that RLUIPA still “affords prison officials ample

ability to maintain security” and protect their other

legitimate interests. Id. at 866.

As a practical matter, recognizing nonmandatory religious exercise under the First

Amendment would impose little if any additional

burden on prisons, because constitutional Free

Exercise claims typically trigger far less exacting

scrutiny than RLUIPA claims. See Safley, 482 U.S. at

89 (holding that a neutral and generally applicable

prison policy that restricts religious exercise is not

9

subject to “strict scrutiny” under the First

Amendment). The only exception is when a prison

discriminates by regulating religious practices and

not regulating secular practices that undermine the

same state interests to a similar or greater degree.

Cf. Lukumi, 508 U.S. at 543. This type of religious

discrimination triggers strict constitutional scrutiny,

id., thus providing a viable claim for damages that is

not available under RLUIPA. 2 Accordingly, the

primary result of denying First Amendment

protection to inmates’ non-mandatory religious

practices would be to give prisons extra leeway in the

discriminatory treatment of such practices.

III. Protecting Only “Mandatory” Religious

Exercise Would Be Discriminatory And

Intrusive

Limiting the Free Exercise Clause to

“mandatory” religious practices would also raise two

other fundamental problems.

First, it would have the perverse result of

favoring more orthodox and rule-based religions over

others. For example, it would recognize weekly

churchgoing as a protected religious exercise for

those who treat it as mandatory, but not for those

who view it as merely beneficial. The same goes for

all manner of prayer, fasting, and other religious

2 In Sossamon v. Texas, 563 U.S. 277 (2011), this Court held

that RLUIPA does not allow official-capacity damages claims

due to sovereign immunity. Moreover, every circuit to consider

the issue has held that, unlike a § 1983 suit under the First

Amendment, RLUIPA does not allow a damages claim against

prison officials in their private capacities. See, e.g., Wood v.

Yordy, 753 F.3d 899, 903 (9th Cir. 2014) (collecting cases).

10

observance. One of the most fundamental principles

of religious liberty is that “[e]very religious society

has a right to determine for itself the times for

[religious] exercises, & the objects proper for them,

according to their own particular tenets[.]” Letter

from Thomas Jefferson to Rev. Samuel Miller, 23

Jan. 1808. But giving favorable treatment to

orthodox believers who engage in more “obligatory”

religious practices would violate the basic principle

of equal treatment among different religious faiths.

Lower courts that have denied constitutional

protection to non-mandatory religious exercise have

reached precisely this type of discriminatory result.

For example, the Second Circuit has held that

excluding a Christian prayer group from campus

during a school day does not raise any Free Exercise

issue because Christians are not required to pray at

any particular time. Brandon v. Bd. of Ed. of

Guilderland Cent. Sch. Dist., 635 F.2d 971, 977 (2d

Cir. 1980). The court distinguished Christian prayer

from “the case of a Moslem who must prostrate

himself five times daily in the direction of Mecca,”

which the court suggested would be entitled to

greater protection. Id.

Second, placing dispositive weight on the

“mandatory” character of religious practices would

entangle the courts in the delicate task of probing

the contents of private religious beliefs. Instead of

asking simply whether a person’s asserted religious

exercise is sincere, courts would also need to make a

further inquiry into the content of the person’s faith,

to determine whether the religious practice is truly

required. Assigning this task to the judiciary is

especially problematic because in many religions it is

11

far from clear what it means for a practice to be

“required.” Does the practice have to be mandated by

a deity? Does the mandate have to be backed by

some threat of divine sanction, or some promise of

reward? What if the believer simply feels obligated to

engage in a practice out of gratitude for divine

providence, or due respect for religious tradition?

Such questions highlight the reality that, “for many

believers, the attempt to distinguish what is required

from what grows organically out of the religious

experience is an utterly alien question, perhaps a

nonsensical and unanswerable question.” Laycock, 2

RELIGIOUS LIBERTY, at 95 (emphasis added).

The difficulty is further compounded because

beliefs about the obligatory nature of religious

practice may evolve and change over time. “The

dominant view of what is central to the religion, and

of what practices are required by the religion, may

gradually change. Today’s pious custom may be

tomorrow’s moral obligation, and vice versa.”

Douglas Laycock, Towards A General Theory of the

Religion Clauses: The Case of Church Labor

Relations and the Right to Church Autonomy, 81

Colum. L. Rev. 1373, 1391 (1981).

Even during the same time frame, many faiths

are riven by strong differences of opinion over

whether certain practices are “moral obligations” or

mere “pious customs.” Such disputes can occur not

only between competing religious authorities, but

also between devout religious leaders and their

wayward flock (or vice versa). Accordingly, making

the protection of the Free Exercise Clause turn on

the “obligatory” nature of religious activities will

inevitably embroil courts in private religious

12

controversies. In some cases it may also distort

religious doctrine by pressuring believers to cast

their practices as mandatory in order to qualify for

constitutional protection.

CONCLUSION

The Court should grant the petition for writ of

certiorari.

MARCH 19, 2018

Respectfully submitted,

Nicole Henning

Counsel of Record

JONES DAY

77 West Wacker Dr.

Chicago, IL 60601

(312) 782-3939

nhenning@JonesDay.com

Counsel for Amici Curiae