Opposition Brief — Clare Therese Grady, Carmen Trotta, and Martha Hennessy, Petitioners v. United States

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No. 21-1297

In the Supreme Court of the United States

CLARE THERESE GRADY, CARMEN TROTTA,

AND MARTHA HENNESSY, PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

DANIEL N. LERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly rejected petitioners’ claim that the Religious Freedom Restoration

Act of 1993, 42 U.S.C. 2000bb et seq., entitles them to an

exemption from criminal prosecution for trespassing

and destroying property on highly sensitive areas of a

United States naval base.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 18

TABLE OF AUTHORITIES

Cases:

Employment Div. v. Smith, 494 U.S. 872 (1990)................ 16

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) ........................................... 9, 16

Holt v. Hobbs, 574 U.S. 352 (2015) ............................. 9, 12, 13

Lyng v. Northwest Indian Cemetery Protective

Ass’n, 485 U.S. 439 (1988) ............................................ 16, 17

Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) ............... 10

Sherbert v. Verner, 374 U.S. 398 (1963) ............................... 16

Spratt v. Rhode Island Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) ........................................... 13, 15

United States v. Allen, 760 F.2d 447 (2d Cir. 1985) ........... 10

United States v. Christie, 825 F.3d 1048

(9th Cir. 2016).................................................................. 9, 11

United States v. Wilgus, 638 F.3d 1274

(10th Cir. 2011) ........................................................ 11, 13, 15

Walker v. Beard, 789 F.3d 1125 (9th Cir.),

cert. denied, 577 U.S. 1015 (2015) ..................................... 15

Warsoldier v. Woodford, 418 F.3d 989

(9th Cir. 2005)................................................................ 13, 14

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) .............. 15

Watson v. Christo, 837 Fed. Appx. 877 (3d Cir. 2020) ....... 15

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................. 16

(III)

Constitution and statutes:

Page

U.S. Const. Amend. I (Free Exercise Clause) ................... 17

Religious Freedom Restoration Act of 1993,

42 U.S.C. 2000bb et seq. ....................................................... 4

42 U.S.C. 2000bb(b)(1) .................................................... 16

42 U.S.C. 2000bb-1(a).................................................... 4, 8

42 U.S.C. 2000bb-1(b) ............................................. 4, 8, 12

42 U.S.C. 2000bb-1(b)(2) ......................................... 4, 8, 12

42 U.S.C. 2000bb-1(c) ........................................................ 9

Religious Land Use and Institutionalized Persons

Act of 2000, 42 U.S.C. 2000cc et seq. ................................... 9

18 U.S.C. 371 ........................................................................ 2, 4

18 U.S.C. 1361 ...................................................................... 2, 4

18 U.S.C. 1363 ...................................................................... 2, 4

18 U.S.C. 1382 ...................................................................... 2, 4

Miscellaneous:

H.R. Rep. No. 88, 103d Cong., 1st Sess. (1993) .................. 16

S. Rep. No. 111, 103d Cong., 1st Sess. (1993) ..................... 16

In the Supreme Court of the United States

No. 21-1297

CLARE THERESE GRADY, CARMEN TROTTA,

AND MARTHA HENNESSY, PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSTION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-34a)

is reported at 18 F.4th 1275. The order of the district

court (Pet. App. 35a-52a) is not published in the Federal

Supplement but is available at 2019 WL 4017424. The

report and recommendation of the magistrate judge

(Pet. App. 53a-146a) is not published in the Federal

Supplement but is available at 2019 WL 5077546.

JURISDICTION

The judgment of the court of appeals was entered on

November 22, 2021. On February 16, 2022, Justice

Thomas extended the time within which to file a petition

for a writ of certiorari to and including March 23, 2022,

and the petition was filed on that date. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Georgia, petitioners

were each convicted on one count of destroying government property on a naval installation, in violation of 18

U.S.C. 1363; one count of depredating government

property, in violation of 18 U.S.C. 1361; one count of

trespassing on a naval installation, in violation of 18

U.S.C. 1382; and one count of conspiring to commit the

above offenses, in violation of 18 U.S.C. 371. Pet. App.

8a-10a. Petitioner Grady was sentenced to 12 months

and one day of imprisonment, to be followed by three

years of supervised release; petitioner Hennessy was

sentenced to ten months of imprisonment, to be followed

by three years of supervised release; and petitioner

Trotta was sentenced to 14 months of imprisonment, to

be followed by three years of supervised release. Id. at

11a. The court of appeals affirmed. Id. at 1a-34a.

1. The United States Naval Submarine Base Kings

Bay (Kings Bay) in St. Marys, Georgia, is home to the

only strategic weapons facility on the Eastern Seaboard. Pet. App. 4a. Among other critical military assets, the base houses the Trident II ballistic missile system and serves as the home port for six submarines that

can be armed with such missiles. Id. at 47a. Those capabilities are central components of the United States’

nuclear-deterrence strategy. Id. at 47a-48a.

To protect its vital military functions, Kings Bay “is

highly secured.” Pet. App. 4a. The base is not open to

the general public and is surrounded by 26 miles of perimeter fencing, with “only three authorized points of

entry, which are manned at all times by armed guards.”

Ibid. Those “guards are authorized to exercise deadly

force against unauthorized entry or trespassers if necessary.” Ibid.; see id. at 48a, 56a-57a.

Inside the perimeter fence, some areas of Kings Bay

are relatively accessible. See Pet. App. 57a. Such areas

include an engineering-services building and a “static

missile display” that showcases decommissioned ballistic missiles. Ibid. “More sensitive areas, however, are

protected by additional barriers and security protocols.” Ibid. For example, the Limited Area—which

houses nuclear-weapons storage bunkers—is separated

from other areas of the base by double lines of fencing

and “concertina” (coiled and barbed) wire. Id. at 4a; see

id. at 5a, 57a. “Written warnings that deadly force may

be used against intruders are posted along” that fencing, and a loudspeaker broadcasts that same warning

every few minutes. Id. at 4a.

2. Petitioners are members of the Plowshares Movement, “a Christian protest and activism group opposed

to nuclear weaponry.” Pet. App. 55a. On April 4, 2018,

“under the cover of darkness,” petitioners and four

other members of the Plowshares Movement cut a padlock on the Kings Bay perimeter fence and illegally entered the base. Id. at 5a. The intruders, who had devoted “approximately two years of secret planning” to

the breach, were “equipped with spray paint, bolt cutters, hammers, [bottles of human] blood, banners, crime

scene tape, [and] Go-Pro cameras.” Ibid. Once inside

Kings Bay, “the seven individuals split into groups and

proceeded to different areas of the base” to engage in

what they called “symbolic disarmament.” Ibid.

Petitioners Grady and Hennessy first went to the

engineering building, where they spray-painted antinuclear and religious messages on the sidewalk, poured

blood on the door of the building and sidewalk, placed

crime-scene tape around the building, and taped an “indictment” of the government to the door. Pet. App. 5a6a, 81a. They then went to the static missile display,

where they hammered on the display, hung more crimescene tape, and spray-painted messages at the base of

the display. Id. at 7a-8a. Meanwhile, petitioner Trotta

proceeded with other group members to the Limited

Area. Id. at 8a. After cutting through protective fencing and concertina wire, they entered the area and displayed banners protesting nuclear weapons. Ibid. After several hours on the base, the intruders were apprehended by base security. Ibid.

A grand jury charged each intruder with one count

of destroying government property on a naval installation, in violation of 18 U.S.C. 1363; one count of depredating government property, in violation of 18 U.S.C.

1361; one count of trespassing on a naval installation, in

violation of 18 U.S.C. 1382; and one count of conspiring

to commit the above offenses, in violation of 18 U.S.C.

371. Pet. App. 8a-9a.

3. Petitioners moved to dismiss the indictment on

the ground that prosecuting them for their conduct on

the base violated the Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. RFRA

provides that the government “shall not substantially

burden a person’s exercise of religion,” unless the government demonstrates that application of that burden

to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of

furthering that compelling governmental interest.” 42

U.S.C. 2000bb-1(a) and (b).

Petitioners contended that their actions at Kings

Bay were an exercise of a sincerely held religious belief

that they must take action in opposition to the presence

of nuclear weapons. Pet. App. 43a-44a. They further

contended that the government could not show that its

decision to prosecute them for their crimes was the least

restrictive means of furthering its compelling interests

in the security of the base. Id. at 9a. Petitioners suggested that the government could have achieved its

compelling interests through less-restrictive alternatives, including “(1) reducing the number and severity

of the charges; (2) not prosecuting [petitioners] and offering instead civil injunctions, civil damages, community service, ‘ban and bar’ letters, or pretrial diversion;

and (3) giving [petitioners] permission to practice symbolic disarmament in a designated area on the base.”

Id. at 9a-10a.

After holding an evidentiary hearing, a magistrate

judge recommended denying the motion to dismiss.

Pet. App. 55a-130a. The magistrate judge determined

that petitioners’ “sincerely held religious belief required” them to “engage in * * * acts of protest at the

Kings Bay base,” but that “the evidence does not

demonstrate that [petitioners] had a sincere religious

belief that required them to engage in those activities

without permission or on portions of the facility behind

the perimeter fence line.” Id. at 117a. The judge accordingly reasoned that petitioners’ “religious beliefs

are not in conflict with general laws prohibiting trespass, injury to government property, or conspiracy, and

those laws do not impose a substantial burden on [petitioners’] religious beliefs.” Id. at 117a-118a. In any

event, the judge determined, petitioners’ defense failed

because “the Government has shown that” prosecution

under “the trespass and property laws * * * is the least

restrictive means of furthering its compelling interests”

in securing the base. Id. at 129a.

The district court adopted the magistrate judge’s

recommendation to deny petitioners’ motion to dismiss.

Pet. App. 35a-52a. The court concluded that the criminal charges had substantially burdened petitioners’ sincere religious exercise. Id. at 44a-45a. The court agreed

with the magistrate judge, however, that the government had met its burden of showing that application of

the laws to petitioners was the least restrictive means

of furthering the government’s compelling interests in

securing Kings Bay. Id. at 46a-52a. The court explained that “the majority of [petitioners’] suggested alternatives (such as forgoing prosecution, pre-trial diversion, or imposing only civil injunctions, fines, or ban

and bar letters) reflect less punitive—but equally

restrictive—government accommodations.” Id. at 50a

(citation omitted). Accordingly, “[n]one of these options

would have permitted [petitioners] to trespass on Kings

Bay and destroy and depredate government property.”

Ibid. The court noted that petitioners’ “final proposed

means, a permitted protest at Kings Bay, likewise fails

because such a means would not have permitted [them]

to have engaged in the religious exercises that they engaged in—namely, trespassing onto Kings Bay and destroying and depredating government property.” Ibid.

Petitioners proceeded to a jury trial and were found

guilty of all the charges against them. Pet. App. 10a.

The district court sentenced them to between ten and

14 months of imprisonment. Id. at 11a.

4. The court of appeals affirmed. Pet. App. 1a-34a.

The government did not dispute on appeal that petitioners’ actions at Kings Bay constituted an exercise of

their sincerely held religious beliefs or that the application of the criminal laws to them substantially burdened

that exercise. Id. at 13a. Petitioners did not dispute

that the government had a compelling interest in the security of the base. Ibid. Accordingly, the court focused

on “whether the government met its burden of demonstrating that criminal prosecution of [petitioners] was

the least-restrictive means of furthering its significant

compelling interests in the safety and security of the”

base. Id. at 13a-14a.

The court of appeals held that the government had

met that burden. Pet. App. 11a-20a. The court first

stated that, to meet its burden, “the government must

refute the alternative schemes proposed by” petitioners. Id. at 14a. The court noted that petitioners’ principal “less restrictive alternative” on appeal was “for

the naval base to make arrangements for them to practice symbolic disarmament in a designated area.” Id. at

15a. But that alternative, the court explained, did not

“address the particular [religious] practice” for which

petitioners were prosecuted—unauthorized entry followed by destruction and depredation of property. Ibid.

(citation omitted; brackets in original). Because petitioners’ proposed approach did not address “the religious exercise practiced in this case,” the court determined that it could not constitute a less-restrictive alternative under RFRA. Id. at 16a; see id. at 16a-17a.

More generally, the court of appeals explained that

“it would be impossible to achieve all of the government’s compelling interests in the safety and security of

the Kings Bay naval base * * * and also accommodate

[petitioners’] destructive religious exercise in this

case.” Pet. App. 19a. The court thus determined that

the “need for the uniform application of laws prohibiting

unauthorized entry on naval base property, as well as

the depredation and destruction of naval base assets,

are the least-restrictive means of achieving the

government’s compelling interest in national security—

an interest of the highest order.” Ibid. Accordingly, the

court explained, RFRA does not require “recognition of

the proposed exceptions to these criminal laws.” Ibid.

“Simply put, RFRA is not a ‘get out of jail free card,’

shielding from criminal liability individuals who break

into secure naval installations and destroy government

property, regardless of the sincerity of their religious

beliefs.” Id. at 17a.

ARGUMENT

Petitioners contend (Pet. 7-18) that RFRA entitles

them to an exemption from criminal prosecution for

trespassing and destroying property on highly sensitive

areas of a United States naval base. The court of appeals correctly rejected that claim, holding that application of the criminal laws to petitioners’ criminal conduct was the least restrictive way of furthering the government’s compelling interest in military security. The

court’s decision does not conflict with any decision of

this Court or another court of appeals, and this case

would be a poor vehicle in which to consider the RFRA

issues petitioners seek to raise even if those issues otherwise warranted consideration. The petition for a writ

of certiorari should accordingly be denied.

1. RFRA provides that the federal government

“shall not substantially burden a person’s exercise of religion,” unless the government “demonstrates that application of the burden to the person * * * (1) is in furtherance of a compelling governmental interest” and

“(2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. 2000bb1(a) and (b). “A person whose religious exercise has

been burdened in violation of [RFRA] may assert that

violation as a claim or defense in a judicial proceeding

and obtain appropriate relief against a government,”

including dismissal of criminal charges. 42 U.S.C.

2000bb-1(c); see, e.g., United States v. Christie, 825

F.3d 1048, 1055 (9th Cir. 2016).

At the first stage of the RFRA analysis, the claimant

bears the burden of establishing a substantial burden

on his or her sincere religious exercise. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006); see also Holt v. Hobbs, 574

U.S. 352, 360-361 (2015) (describing the parallel provisions of the Religious Land Use and Institutionalized

Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et

seq.). If the claimant makes that showing, the government must demonstrate that the burden is the “least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(2); see, e.g., O Centro, 546 U.S. at 428-429; see also Holt, 574 U.S. at 362.

Here, petitioners did not contest that the government has compelling interests in the safety and security

of the Kings Bay naval base. Pet. App. 13a-14a. And

the court of appeals correctly held that the government

had demonstrated that prosecuting petitioners for their

crimes on the base was the least restrictive means of

furthering those compelling interests. Id. at 11a-20a.

That conclusion follows directly from a straightforward

and commonsense application of RFRA.

Petitioners’ unlawful entry onto the Kings Bay naval

base—accomplished by cutting a padlock “under the

cover of darkness” following “approximately two years

of secret planning”—was a serious crime. Pet. App. 5a.

Petitioners’ further criminal conduct on the base—particularly their cutting of fencing and concertina wire to

enter the Limited Area—created even more significant

security risks. Id. at 8a; see id. at 50a-51a (district court

finding that petitioners’ conduct “could have easily led to

deadly consequences and did in fact interrupt operations at the base”). Congress, in enacting RFRA, did not

create a religious exemption to prosecution for such brazen and damaging criminal conduct; to the contrary, “nothing in RFRA supports destructive, national-securitycompromising conduct as a means of religious exercise.”

Id. at 17a. Indeed, courts have long recognized that “no

plausible argument can be advanced why the Government must accommodate the religious beliefs of those

who would destroy government property.” United

States v. Allen, 760 F.2d 447, 453 (2d Cir. 1985); cf.

Mahoney v. Doe, 642 F.3d 1112, 1122 (D.C. Cir. 2011)

(Kavanaugh, J., concurring) (emphasizing, in the freespeech context, that “[n]o one has a First Amendment

right to deface government property”).

Petitioners’ principal contention below was that the

government could have furthered its compelling interests in base security by “reducing the number and severity of the charges” against them, or by “offering instead civil injunctions, civil damages, community service, ‘ban and bar’ letters, or pretrial diversion.” Pet.

App. 9a-10a. As the district court recognized, those proposals are “less punitive,” but they do not qualify as

less-restrictive alternatives under RFRA because they

are “equally restrictive” of petitioners’ desired religious

exercise. Id. at 50a (citation omitted).

In any event, as both courts below correctly held,

failing to apply criminal sanctions for a severe breach

like petitioners’ would not adequately protect the government’s compelling interests in securing the base.

Pet. App. 17a, 51a. Petitioners’ approach would also create separation-of-powers concerns, “plung[ing] courts

far too deep into the business of reviewing the most

basic exercises of prosecutorial discretion.” Christie,

825 F.3d at 1062. “Simply put, RFRA is not a ‘get out

of jail free card,’ shielding from criminal liability individuals who break into secure naval installations and

destroy government property, regardless of the sincerity of their religious beliefs.” Pet. App. 17a.

Petitioners separately contended below that the government could have made “arrangements for them to

practice symbolic disarmament in a designated area” at

some future date. Pet. App. 15a. But petitioners did

not give the government that option: Rather than requesting such an accommodation, petitioners took matters into their own hands by breaking into the base “under the cover of darkness”—and then engaged in destructive vandalism, not mere “symbolic disarmament.”

Id. at 5a. As the court of appeals explained, the question

under RFRA is not whether the government could have

allowed petitioners to engage in some other religiously

motivated conduct without undermining its compelling

interests; the question is whether forbidding the specific “religious exercise practiced in this case” is the

least restrictive means of furthering the government’s

compelling interests. Id. at 16a. It is.

2. Petitioners now principally contend (Pet. 10) that

the court of appeals erred by stating in a footnote that

“[t]he government does not bear the burden of proffering less restrictive alternatives or demonstrating that it

actually considered and rejected those alternatives.”

Pet. App. 15a n.12. Petitioners assert (Pet. 9) that the

court’s statement derives from United States v. Wilgus,

638 F.3d 1274 (10th Cir. 2011), which held that RFRA

does not require the government “to do the impossible

—refute each and every conceivable alternative regulation scheme.” Id. at 1289. According to petitioners

(Pet. 8, 11), application of that “Wilgus principle” violates the “plain statutory language of RFRA.”

Petitioners’ contention lacks merit. RFRA’s text requires the government to “demonstrate[],” 42 U.S.C.

2000bb-1(b), that it used the least restrictive means of

furthering its compelling interest. The court of appeals

expressly recognized “the government’s burden” to do

that in this case, Pet. App. 14a, and explained in detail

why the government had met that burden, see id. at

14a-20a. The court naturally focused on the purportedly less-restrictive alternatives that petitioners had

identified as the strongest bases for resolving the case

in their favor. Id. at 14a-15a (collecting cases adopting

the same approach); see, e.g., Holt, 574 U.S. at 367 (similar). But the court also separately determined that “it

would be impossible to achieve all of the government’s

compelling interests in the safety and security of the

Kings Bay naval base, its base personnel, and its base

assets and also accommodate [petitioners’] destructive

religious exercise in this case.” Pet. App. 19a; see ibid.

(“The need for the uniform application of laws prohibiting unauthorized entry on naval base property, as well

as the depredation and destruction of naval base assets,

are the least-restrictive means of achieving the government’s compelling interest in national security.”). The

court thus fully complied with RFRA’s text.

Contrary to petitioners’ contentions, no court has

held that, to “demonstrate[]” that it used the least restrictive means within the meaning of RFRA, 42 U.S.C.

2000bb-1(b), the government must (1) “ ‘proffer less restrictive alternatives’ ” in addition to those proffered by

the claimants; (2) show that it “considered and rejected”

each of those alternatives, Pet. 10 (emphasis omitted)

(quoting Pet. App. 15a n.12); and (3) “refute each and

every conceivable alternative regulation scheme,” Pet.

9 (quoting Wilgus, 638 F.3d at 1289). That approach has

no footing in the statutory text or pre-RFRA case law.

It is also impractical and illogical, as it would require

the government to “do the impossible,” which cannot be

what Congress required in RFRA. Holt, 574 U.S. at

372 (Sotomayor, J., concurring) (citation omitted).

Petitioners point (Pet. 11-12) to cases stating that,

under RLUIPA, a “prison ‘cannot meet its burden to

prove least restrictive means unless it demonstrates

that it has actually considered and rejected the efficacy

of less restrictive measures before adopting the challenged practice.’ ” Spratt v. Rhode Island Dep’t of

Corr., 482 F.3d 33, 41 (1st Cir. 2007) (quoting Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005)). But

such statements are not inconsistent with the decision

below. Indeed, the First Circuit decision cited by petitioners expressly stated that RLUIPA does not “require prison administrators to refute every conceivable

option in order to satisfy the least restrictive means

prong of RFRA.” Id. at 41 n.11 (citation omitted). The

cases cited by petitioners thus stand for the uncontroversial proposition that government entities and courts

cannot “assume a plausible, less restrictive alternative

would be ineffective.” Warsoldier, 418 F.3d at 999 (citation omitted).

It is unclear, moreover, what additional alternatives

the government could have considered under the circumstances here. Unlike the plaintiffs in the prison

cases on which they rely, petitioners did not request a

religious accommodation or raise their RFRA claim as

a pre-enforcement challenge to the government’s policy

on protests at Kings Bay. See, e.g., Spratt, 482 F.3d at

35-36 (challenge to prison’s prohibition on preaching by

inmates); Warsoldier, 418 F.3d at 991-992 (challenge to

prison’s grooming policy). Petitioners instead asserted

their RFRA claim only after engaging in the criminal

conduct and facing prosecution. At that point, the government had limited options: It could either apply the

criminal laws at issue to petitioners, or it could allow

their crimes to go unpunished. See Pet. App. 51a. The

courts below addressed the latter alternative and found

that it would “not permit the government to achieve its

compelling interest.” Ibid.; see id. at 16a-17a. Thus,

even if petitioners were correct that the government

must “refute each and every conceivable alternative

regulation scheme,” Pet. 9 (citation omitted), the government did so here.

3. Contrary to petitioners’ contentions (Pet. 10-14),

the decision below does not implicate any conflict of authority among the courts of appeals. Petitioners contend that the Eighth, Tenth, and Eleventh Circuits apply the “principle outlined” in Wilgus, which requires

the government to “ ‘refute the alternative schemes offered by the challenger,’ ” but not to “ ‘refute each and

every conceivable alternative regulation scheme.’ ” Pet.

9 (citation and emphasis omitted). In contrast, they assert, the First, Third, and Ninth Circuits have rejected

the “Wilgus principle” and require the government to

demonstrate “ ‘that it has actually considered and rejected the efficacy of less restrictive measures before

adopting the challenged practice.’ ” Pet. 11-13 (citation

and emphases omitted).

Petitioners’ mischaracterize those decisions. The

First, Third, and Ninth Circuits have not, as petitioners

contend, rejected the principles articulated by the

Tenth Circuit in Wilgus. To the contrary, each of those

circuits has in fact adopted Wilgus’s holding that the

government is not required to “refute each and every

conceivable alternative regulation scheme,” to meet its

burden under RFRA’s least-restrictive-means analysis.

638 F.3d at 1289. As noted above, the First Circuit in

Spratt stated that RLUIPA does not “require prison

administrators to refute every conceivable option in order to satisfy the least restrictive means prong of

RFRA.” 482 F.3d at 41 n.11 (citation omitted). The

Third Circuit has similarly stated (albeit in an unpublished decision) that “courts have not required prisons to identify and evaluate ‘every conceivable option in

order to satisfy the least restrictive means prong of

RFRA.’ ” Watson v. Christo, 837 Fed. Appx. 877, 880

n.7 (2020) (citation omitted); cf. Washington v. Klem,

497 F.3d 272, 284 (3d Cir. 2007) (stating more generally

that the government must “must consider and reject

other means before it can conclude that the policy chosen is the least restrictive means”). And the Ninth Circuit has stated that, “[a]lthough the government bears

the burden of proof to show its practice is the leastrestrictive means, it is under no obligation to dream up

alternatives that the plaintiff himself has not proposed.”

Walker v. Beard, 789 F.3d 1125, 1137, cert. denied, 577

U.S. 1015 (2015).

There is accordingly no conflict between the leastrestrictive-means analysis applied by the First, Third,

and Ninth Circuits, and the “Wilgus principle” that petitioners challenge here. And in any event, even if petitioners were correct that some circuits have in some circumstances required prison administrators to show that

they actually considered and rejected less-restrictive

alternatives before refusing to grant religious accommodations to prison policies (cf. Pet. 11-12), this case

arises in a starkly different context: Petitioners’ own

conduct deprived the government of any opportunity to

consider less-restrictive alternatives in advance. And

petitioners point to nothing suggesting that other

circuits—or any other court—would accept the remarkable proposition that RFRA entitles them to an exemption from criminal prosecution for trespassing on and

defacing government property at sensitive locations on

a military base.

4. Finally, even if the proper application of RFRA’s

least-restrictive-means analysis otherwise warranted

this Court’s review, this unusual case would not be an

appropriate vehicle in which to consider it. In the court

of appeals, this case was litigated on the assumption

that the federal laws prohibiting petitioners from trespassing and destroying property on a naval base substantially burdened their exercise of religion within the

meaning of RFRA. Pet. App. 13a-14a. But RFRA, including its substantial-burden standard, was enacted to

“restore” the standard “set forth in [Sherbert v. Verner,

374 U.S. 398 (1963),] and [Wisconsin v. Yoder, 406 U.S.

205 (1972)].” 42 U.S.C. 2000bb(b)(1); see O Centro, 546

U.S. at 424. Congress thus intended for courts to “look

to free exercise cases decided prior to [Employment Division v. Smith, 494 U.S. 872 (1990),] for guidance in determining whether the exercise of religion has been

substantially burdened.” S. Rep. No. 111, 103d Cong.,

1st Sess. 8 (1993) (Senate Report); see H.R. Rep. No.

88, 103d Cong., 1st Sess. 6-7 (1993) (same). And those

pre-Smith decisions made “clear” that “strict scrutiny

does not apply” where, as here, the challenged government action concerns “the use of the Government’s own

property or resources.” Senate Report 9.

For example, in Lyng v. Northwest Indian Cemetery

Protective Ass’n, 485 U.S. 439 (1988), the Court rejected

three Indian tribes’ challenge to plans to permit timber

harvesting in, and construction of a road through, a portion of a national forest traditionally used for tribal religious practice. Id. at 441-442. The Court acknowledged that the project would have “devastating effects

on traditional Indian religious practices.” Id. at 451.

But the Court held that those harms were not a cognizable burden under the Free Exercise Clause of the First

Amendment, explaining that some citizens will inevitably find “[a] broad range of government activities” to be

inconsistent with the “tenets of their religion,” and that

the “government simply could not operate if it were required to satisfy every citizen’s religious needs and desires” in matters such as the administration of public

property. Id. at 452.

That logic applies with even greater force where the

public property at issue is a sensitive military base. The

free exercise of religion protected by RFRA creates a

sphere of religious liberty and autonomy that is to be

free of governmental interference unless that interference is necessary to serve a compelling governmental

interest. But it does not give religious adherents the

right to dictate the government’s use of its own land or

resources. The government’s maintenance of military

facilities—including protecting them from trespass and

destruction—thus does not impose the sort of substantial burden on religious exercise that is cognizable under RFRA.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.