Amicus Curiae Brief — Hjalmar Rodriguez, Jr., Petitioner v. Edward H. Burnside, et al.

No. 22-594

IN THE

Supreme Court of the United

States

____________________

HJALMAR RODRIGUEZ, JR.,

Petitioner,

v.

EDWARD H. BURNSIDE, ET AL,

Respondents.

____________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit

____________________

BRIEF OF COUNCIL ON AMERICAN-ISLAMIC

RELATIONS AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

____________________________

LENA F. MASRI

GADEIR I. ABBAS

JUSTIN SADOWSKY

HANNAH MULLEN

CAIR LEGAL DEFENSE

FUND

453 New Jersey Ave SE

Washington, DC 20003

ALAN MYGATT-TAUBER

Counsel of Record

LAW OFFICE OF ALAN

MYGATT-TAUBER

10089 Ashley Circle NW

Silverdale, WA 98383

(202) 236-9734

alan@amtappeals.com

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES ………………………… iii

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

SUMMARY OF ARGUMENT................................... 2

REASONS FOR GRANTING THE WRIT................ 3

I.

“Facially Neutral” Policies are Used to

Cloak Violations of Religious Freedoms....... 4

A. “Facially neutral” laws have been

used to interfere with religious

exercise…………….………………... ...... 5

II. Individualized Exemptions are

Necessary to Protect Religious Rights ......... 8

A. Individual Exemptions Offer

Necessary Protections to Religious

Beliefs……………… .............................. 9

B. Granting Individual Exemptions

for Free Exercise Claims is

consistent with other First

Amendment claims ............................ 14

C. Congress recognized the necessity of

individualized exemptions in RFRA

and RLUIPA

16

CONCLUSION ........................................................ 18

ii

TABLE OF AUTHORITIES

Page

CASES

American Legion v. American Humanist

Ass’n, 139 S. Ct. 2067 (2019) ............................. 15

Ayotte v. Planned Parenthood of N. New

Eng., 546 U.S. 320 (2006) .................................. 14

Bowen v. Roy, 476 U.S. 693 (1986) ........................... 6

Braunfeld v. Brown, 366 U.S. 599

(1961) ...........................................................5, 7, 11

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014)............................................ 13

Central Hudson Gas & Electric Corp. v.

Public Service Commission of New

York, 447 U.S. 557 (1980) .................................. 15

Church of the Lukumi Babalu Aye, Inc.,

v. City of Hialeah, 508 U.S. 520

(1993) ...............................................................5, 11

Edwards v. South Carolina, 372 U.S.

229 (1963) ........................................................... 15

Elmajzoub v. Davis, No. 3:19-cv-00196

(D. Nev. 2022) .................................................... 12

Employment Div. Dept of Human

Resources of Oregon v. Smith, 494

U.S. 872 (1990)................................................7, 14

Feiner v. New York, 340 U.S. 315 (1951)................ 16

Fulton v. City of Philadelphia, 141 S.Ct.

1868 (2021) ............................................6, 7, 16, 17

Gallagher v. Crown Kosher Super

Market of Mass., Inc., 366 U.S. 617

(1961) .................................................................... 5

Gillette v. United States, 401 U.S. 437 ..................... 6

iii

Gonzales v. O Centro Espirita

Beneficente Unaio do Vegetal, 546

U.S. 418 (2006)................................................7, 11

Kennedy v. Bremerton School District,

142 S.Ct. 2407 (2022)........................................... 4

Little Sisters of the Poor v.

Commonwealth of Pennsylvania, 591

U.S. ___, 140 S.Ct. 2367 (2020) ......................... 13

McGowan v. Maryland, 366 U.S. 420

(1961) .................................................................... 5

Norman Shaw v. Scott Davis, No. 3:18cv-00551 (D. Nev. 2022) ..................................... 12

Sherbert v. Verner, 374 U.S. 398 (1963) ..............6, 16

Snowden v. Prince George’s County,

MD, No. 18-00160 (D. Md.)................................ 12

Thomas v. Review Bd. of Ind.

Employment Security Div., 450 U.S.

707 (1981) ....................................................6, 7, 11

Turner v. Safley, 482 U.S. 78 (1987) ........................ 3

United States v. Stevens, 559 U.S. 460

(2010) .................................................................. 15

West Va. Bd. of Education v. Barnette,

319 U.S. 624 (1943).........................................7, 15

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......6, 11, 16

STATUTES

42 U.S.C. §§ 2000bb et seq. ....................................... 9

42 U.S.C. §§ 2000cc et seq. ........................................ 9

48 U.S.C. § 2000cc-1 ................................................ 17

48 U.S.C. § 2000cc-3(e) ........................................... 17

OTHER AUTHORITIES

Blaine L. Hutchison, Revisiting

Employment Division v. Smith, 91

U. Cin. L. Rev. 396 (2022) ................................. 15

iv

Bradley J. Lingo and Michael G.

Schietzelt, A Second Class First

Amendment Right? Text, Structure,

History and Free Exercise After

Fulton, 57 Wake Forest L. Rev. 711

(2022) ...............................................................8, 15

Christopher C. Lund, “Second-Best Free

Exercise,” 91 Fordham L. Rev. 843

(2022) .............................................................10, 11

Mark L. Rienzi & Stephanie H. Barclay,

Constitutional Anomalies or AsApplied Challenges? A Defense of

Religious Exemptions, 59 B.C. L.

Rev. 1595 (2018) ................................................ 14

Memorial and Remonstrance Against

Religious Assessments.......................................... 9

1

INTEREST OF THE AMICI CURIAE 1

The Council on American-Islamic Relations

(CAIR) was founded in 1994 with the purpose of securing civil rights, promoting justice, empowering

American Muslims, and enhancing society’s understanding of Islam. One area where American Muslims’ religious rights are most frequently violated is

in prisons and jails.

As a result, the CAIR Legal Defense Fund has

brought lawsuits on behalf of incarcerated American

Muslims seeking such routine religious rights as the

right to attend weekly congregational prayer, to perform daily prayers together when otherwise allowed

to congregate, to obtain Halal meals, to be properly

fed during the monthly fast of Ramadan, and to maintain a beard or wear a kufi consistent with their sincere religious beliefs.

In the course of CAIR Legal Defense Fund’s substantial litigation efforts, they have discovered that

prisons and jails often have misconceptions or fear of

Islam. They have become aware of officials that believe Islam is a racist or black supremacist religion,

that it is a gang, or that it endorses violence and terrorism. All these preconceptions are false. Often

these preconceptions derive from chaplains and chaplaincy organizations with an evangelical Christian

background, who have neither knowledge of nor trust

in Islam or American Muslims.

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

and no person or entity other than amicus or its counsel funded

its preparation or submission. In accordance with Rule 37.2, all

counsel for the parties were made aware of amici’s intention to

file this brief more than 10 days before the due date.

2

American Muslims make up a disproportionate

amount of this country’s jail and prison population.

Further, many incarcerated individuals discover and

convert to Islam in jail or prison settings to better

themselves and find redemption. The Constitution

and laws of the United States demand that those individuals be allowed to seek that redemption. And

CAIR and the CAIR Legal Defense Fund exist to help

them guarantee that right.

SUMMARY OF ARGUMENT

I. The relationship between a person and their

maker is uniquely profound and important. Yet state

officials, relying on laws and policies cloaked in the

language of facial neutrality and fairness, use the discretion inherent in all enforcement decisions to discriminate against disfavored religious practices. At

one time, this Court recognized that even facially neutral policies which have as their effect an undue burden on religious practice will not withstand First

Amendment scrutiny and cannot be used as a means

to mask such unlawful discrimination.

II. Likewise, because the relationship between a

person and their God is so personal, blanket exemptions to even facially neutral policies are doomed to

fail to accommodate everyone. For this reason, the

courts and Congress have recognized the need for individualized exceptions from policies which incidentally interfere with an individual’s communion

with the Almighty.

3

Because the court below refused to recognize these

basic truths, this Court should grant the writ of certiorari and reverse the decision below.

REASONS FOR GRANTING THE WRIT

Prison officials rely on a facially neutral policy to

violate Petitioner’s religious freedoms in two separate

ways. First, by prohibiting him from accessing a

shower on a daily basis, they make it impossible for

him to engage in a required cleansing ritual before he

offers his daily prayers, rendering those prayers

“void” and meaningless. Second, when officials do allow him to shower, they require him to walk to the

shower wearing almost no clothing, violating his religious obligation to maintain his modesty. Despite an

easily accessible alternative—placing Petitioner in a

cell with its own shower in a different wing of the

same unit, which would address both harms—prison

officials insist on denying Petitioner his rights to

freely exercise his religion, without even bothering to

explain why they rejected his proposed accommodation.

The court below held that, under the test laid out

in Turner v. Safley, 482 U.S. 78 (1987), Petitioner

could not prevail on his Free Exercise claim unless he

proposed an alternative shower policy that could be

implemented on a prison-wide basis. That requirement conflicts with this Court’s holdings in every

other area of First Amendment law, which allow for

individualized exemptions. It also conflicts with Congress’s well-considered judgment in the free exercise

4

space to require individual accommodations from generally applicable policies.

The freedom to commune with God in the way a

prisoner deems fit is especially important in prisons,

because God is the only interlocutor with whom a

prisoner can converse at any time. Unlike family and

friends, whose visiting time is tightly constrained, a

prisoner can commune with God at any time and in

any place. But only if the prison does not take steps

to sever this most important relationship.

I.

“Facially neutral” Policies are Used to

Cloak Religious Discrimination

Religious freedom is uniquely susceptible to violation by facially neutral policies because, unlike other

First Amendment rights, religion almost invariably

involves conduct. As this Court recognized just last

term in Kennedy v. Bremerton School District, 142 S.

Ct. 2407 (2022), the Free Exercise Clause does not

only protect “the right to harbor religious beliefs inwardly and secretly.” Rather, “[i]t does perhaps its

most important work by protecting the ability of those

who hold religious beliefs of all kinds to live out their

faiths in daily life through the performance of (or abstention from) physical acts.” Id. at 2421 (internal

quotations and citation omitted). But facially neutral

policies can all too easily prevent physical acts necessary to fulfill a religious command or require acts that

violate one.

5

A.

“Facially neutral” laws have been

used to interfere with religious exercise

One need not look very far into this Court’s jurisprudence to discover attempts by government officials

to prohibit behavior that individuals sincerely believe

is necessary to fulfilling their religious obligations, or

to require behavior that individuals sincerely believe

their religion forbids. Even when government policies

are phrased in ways that apply to all, when applied,

the burdens of these policies fall more heavily on

some. For this reason, this Court has recognized that

“[f]acial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends

beyond facial discrimination.” Church of the Lukumi

Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520, 534

(1993).

In a series of cases in the early 1960s, this Court

was confronted with challenges to Sunday closing

laws. Those laws uniquely burdened Jews and Sabbatarians, whose religion required they close their

businesses on Saturday. As a result, the laws put

them to a choice between economic ruin or violating

sincerely held religious beliefs. See McGowan v. Maryland, 366 U.S. 420 (1961), Braunfeld v. Brown, 366

U.S. 599 (1961), and Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U.S. 617 (1961). The

Court upheld those laws under the Free Exercise

Clause despite the burden they placed on religious adherents, but explained that such laws would not be

valid if “the State may accomplish its purpose by

means which do not impose such a burden” on religious practice. Braunfeld, 366 U.S. at 607. And two

6

members of the Court recognized that despite their

supposed neutrality, the burdens did not fall on all religious observers equally. McGowan, 366 U.S. at 521

(Frankfurter, J., concurring) (“[Sunday closing laws]

do create an undeniable financial burden upon the observers of one of the fundamental tenets of certain religious creeds, a burden which does not fall equally

upon other forms of observance.”).

Just two years later, in one of the Court’s quintessential free exercise cases, Sherbert v. Verner, 374

U.S. 398 (1963), Justice Douglas recognized that generally applicable laws can target “beliefs that are protected by the First Amendment but which could easily

be trod upon under the guise of ‘police’ or ‘health’ regulations reflecting the majority’s views.” Id. at 411

(Douglas, J., concurring). The Court has consistently

recognized the perils of neutral laws which, in their

application, “nonetheless offend the constitutional requirement for government neutrality if [they] unduly

burden[] the free exercise of religion.” Wisconsin v.

Yoder, 406 U.S. 205, 220 (1972). See also Thomas v.

Review Bd. of Ind. Employment Security Div., 450

U.S. 707, 717 (1981) and Fulton v. City of Philadelphia, 141 S.Ct. 1868, 1890 (2021) (Alito, J., concurring).

Facially neutral laws have had the effect of burdening the religious exercise of Native Americans,

Bowen v. Roy, 476 U.S. 693 (1986) (requirement to obtain and provide a social security number to receive

state benefits violated sincerely held religious belief

of member of Abenaki Tribe); Catholics, Gillette v.

United States, 401 U.S. 437 (1971) (Selective Service

7

Act exemption for conscientious objectors did not include Catholic belief that they may only fight in just

wars); Fulton v. City of Philadelphia 141 S. Ct. 1868

(anti-discrimination provision of city contract used as

a basis to exclude Catholic Social Services from foster

care system); Jews, Braunfeld v. Brown, 366 U.S. 599

(Sunday closing laws); Jehovah’s Witnesses, West Va.

Bd. of Education v. Barnette, 319 U.S. 624 (1943) (policy requiring all students to salute the flag); Sabbatarians, Thomas v. Review Bd. of Ind. Employment

Security Div., 450 U.S. 707 (Sabbatarian who refused

to accept work on Saturday denied unemployment

benefits); and Christian Spiritists, Gonzales v. O Centro Espirita Beneficente Unaio do Vegetal, 546 U.S.

418 (2006) (Federal government argued the Controlled Substances Act prevented the use of hoasca

tea as part of sacramental right), among others.

In this Court’s much-criticized decision in Employment Div. Dept of Human Resources of Oregon v.

Smith, 494 U.S. 872 (1990), the Court held that such

generally applicable laws did not offend the Free Exercise Clause. But Justice O’Connor, concurring in

the opinion, noted that “laws neutral toward religion

can coerce a person to violate his religious conscience

or intrude upon his religious duties just as effectively

as laws aimed at religion.” Id. at 901 (O’Connor, J.,

concurring). Justice O’Connor went on to warn that

the history of the Free Exercise Clause demonstrated

the “harsh impact” majoritarian rule has had on unpopular religions. This, of course, would extend to

hostility toward religion itself.

8

Finally, as scholars have recognized, inherent in

the enforcement of all laws and policies is an unofficial discretion that can be used to target religion. Under the cover of facially-neutral laws, government officials can smuggle religious discrimination into their

exercise of discretion. See, e.g., Bradley J. Lingo and

Michael G. Schietzelt, A Second Class First Amendment Right? Text, Structure, History and Free Exercise After Fulton, 57 Wake Forest L. Rev. 711 (2022).

In Fulton, the majority found that Philadelphia’s nondiscrimination policy was not generally applicable because it allowed for formal exemptions from the policy. See Fulton, 141 S. Ct. at 1878-79. Professors

Lingo and Schietzelt argue that this concern should

apply equally to informal mechanisms of discretion.

Lingo & Schietzelt, supra, at 733-35. For example, in

Petitioner’s case, the prison had available cells with

showers in the same secure unit where Mr. Rodriquez

was held. Housing him in one of those cells would

have addressed both of his sincerely held religious beliefs. Yet the prison chose not to grant this accommodation and did not even provide a reason. This is just

one example of how an act of informal discretion can

impact the right to practice one’s religion.

II.

Individualized Exemptions are Necessary

to Protect Religious Rights

In recognition of the impacts that laws and policies

can have on an individual’s religious practices, this

Court has long stated that exemptions are necessary,

even to generally applicable burdens. Both in the specific context of the Free Exercise Clause, as well as in

every other aspect of the First Amendment, courts

have regularly addressed as-applied challenges and

9

provided individualized exemptions where necessary

to safeguard these rights. Such exemptions are crucial not only because they allow individuals to practice their sincerely-held religious beliefs—they also

prevent discriminatory animus against religion,

which often lurks behind the discretionary enforcement of facially-neutral rules. And Congress recognized the necessity of individualized exceptions when

it passed two statutes in response to this Court’s Free

Exercise decisions, the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq., and the

Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. §§ 2000cc et seq. Although these

laws leave gaps, they are strong indicators that the

appropriate means of protecting religious freedom is

to provide individualized exceptions to generally applicable laws.

A.

Individual exemptions offer necessary protections to religious beliefs

No two people’s understanding of their relationship with God is the same, even amongst those who

practice in hierarchically arranged religions. For this

reason, this country has a long history, going back to

the Founding, of respecting each individual’s views on

what constitutes their sincere religious beliefs. As

James Madison explained in his Memorial and Remonstrance Against Religious Assessments (1785),

“[t]he Religion of every man must be left to the conviction and conscience of every man; and it is the right

of every man to exercise it as these may dictate.”

Facially neutral laws avoid overt expressions of

discriminatory animus. But they nonetheless must be

10

subject to careful examination by courts when they

burden religious practice. If plaintiffs were required

to show some form of discriminatory animus before

they were entitled to an exception from such laws,

then their ability to practice in conformity with their

sincerely held religious beliefs would be in substantial

jeopardy. Particularly for minority religions, infringements may truly be incidental, as a law’s authors may be unaware of its impact on minority religious practice. For such plaintiffs, seeking a needed

exemption would be fruitless.

Likewise, conditioning an exemption on plaintiff’s

ability to show that some policy is being enforced in a

discriminatory manner leaves one’s ability to practice

one’s religion to what Professor Christopher Lund

calls “constitutional luck.” Christopher C. Lund, “Second-Best Free Exercise,” 91 Fordham L. Rev. 843,

869-72 (2022). In other words, someone’s religious beliefs would be accommodated by a facially neutral law

only if their religious belief happened to coincide with

secular needs. For example, there is no secular need

to drink wine one day a week. During Prohibition, a

blanket ban on alcohol consumption would have infringed upon the religious practices of a great many

devout Christians and Jews. (Congress recognized

that concern and provided a statutory exemption to

the Volstead Act, when it enacted Prohibition.)

The problem is even more acute for members of

minority religions, such as Muslims, whose practices

may not comfortably mirror the practices of dominant

religions. As seen in the Sunday closing law cases,

facially neutral policies often uniquely burden members of minority religions, while the most important

11

aspects of practice for members of the majority religion remain protected without resort to the Free Exercise Clause. Christmas is a national holiday, and

even when it falls on a weekend, it is observed on either Friday or Monday. Yom Kippur and Eid are important days in the Jewish and Muslim religions respectively, but for adherents to go to temple or

mosque, they may be required to take time off from

work, as their holy days do not receive the same government recognition. For this reason, accommodations are necessary to counter the fact that the democratic process only focuses on accommodating the

needs of religious majorities. As Professor Lund

points out, members of minority religions are the least

likely to have practices which share secular analogues. Lund, Second-Best Free Exercise, at 871-72.

This may be why, until recently, it was mainly minority religions who brought Free Exercise cases. After

all, the majority religions in this country don’t oppose

compulsory education after eighth grade (Yoder),

working on Saturdays (Braunfeld, Thomas), animal

sacrifice (Lukumi Babalu Aye), or the drinking of

hoasca tea (O Centro).

Facially neutral laws and policies may also conceal

discriminatory animus that motivates their passage,

maintenance, and/or enforcement. Amicus has litigated numerous cases in the lower courts in which

crucial aspects of Islam were impeded for multiple

compounding reasons: first, because they were not regarded as important by government officials, and second, because allegedly neutral policies were used as

tools to impede the religious exercise of Muslim prisoners by biased prison officials. See, e.g., Norman

12

Shaw v. Scott Davis, No. 3:18-cv-00551 (D. Nev.

2022); see also Elmajzoub v. Davis, No. 3:19-cv-00196

(D. Nev. 2022) (parallel case litigated by CAIR Legal

Defense Fund). In Shaw, for example, plaintiffs in a

RLUIPA and Free Exercise case were provided with

notes in discovery in which prison officials wrote, in

response to why Muslim studies at the prison were

taken away: “I couldn’t say in front of all of them that

it was because they teach racism, hate and black supremacy. There would have been a riot.” Id. Doc. 259,

Order on Motion for Summary Judgment at 13. The

prison denied Muslim prisoners the right to practice

Jumu’ah on Friday afternoons because of animus toward Islam. But they cloaked their behavior behind

an allegedly facially neutral policy.

In another case, a prison in Maryland denied the

right of Muslim prisoners to congregate and pray,

while allowing members of Christian sects to do so.

Snowden v. Prince George’s County, MD, No. 1800160 (D. Md. 2022). Although the evidence in that

case is not as dramatic as that uncovered in Shaw, it

shows how discriminatory enforcement of facially

neutral policies can lead to suppression of minority

religions. The prison’s policy allowed prisoners to

congregate for secular reasons, but not for prayer.

But even this limitation was only enforced against

Muslim prisoners. When questioned about why Christians were allowed to congregate and pray while Muslims were not, prison officials stated that it was because Christians pray sitting down, while Muslims

pray while standing or prostrate. Elsewhere, prison

officials argued that Muslim prayer constitutes a security breach because it believes Islam to be a gang.

13

It does not take similarly dim views of Christian

prayer groups.

Because minority religions are often burdened by

facially neutral laws and policies, the requirement for

a plaintiff to propose a global exception to a generallyapplicable policy will prove unwieldy in practice.

Even among co-religionists, the understanding of

what a particular faith requires may vary. Some

Catholics embrace Pope Francis’s teachings on

providing the Eucharist to divorced Catholics, while

others reject it. Thus, one size fits all exemptions are

often not possible, or at the very least, end up being

over- or under-inclusive.

That is why this Court has recognized the need for

individual exemptions from policies that impermissibly burden religious exercise. Many religious organizations, or closely held corporations, did not object to

the Affordable Care Act's requirement that their

health insurance plans cover contraceptives. But for

those that did, this Court required the federal government to grant exemptions from the requirement. See,

e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682

(2014); Little Sisters of the Poor v. Commonwealth of

Pennsylvania, 591 U.S. ___, 140 S. Ct. 2367 (2020).

These challenges for individual exemptions are no

different than as-applied challenges in other areas of

law, and as Professors Mark Rienzi and Stephanie

Barclay have noted, such as-applied challenges are

the preferred method of challenging unconstitutional

government action. Mark L. Rienzi & Stephanie H.

Barclay, Constitutional Anomalies or As-Applied

14

Challenges? A Defense of Religious Exemptions, 59

B.C. L. Rev. 1595, 1609-1611 (2018).

In her concurrence in Smith, this is precisely what

Justice O’Connor suggested when she wrote “the

sounder approach—the approach more consistent

with our role as judges to decide each case on its individual merits—is to apply this test in each case to determine whether the burden on the specific plaintiffs

before us is constitutionally significant and whether

the particular [] interest asserted by the State before

us is compelling.” Smith, 494 U.S. at 899 (O’Connor,

J., concurring).

B.

Granting individual exemptions for

Free Exercise claims is consistent

with other First Amendment claims

An individual exemption, like that sought by Petitioner and denied by the court below, is consistent

with other areas of First Amendment law. Indeed,

this Court has consistently held that “the normal rule

is that partial, rather than facial, invalidation is the

required course, such that the statute may be declared invalid to the extent it reaches too far, but otherwise left intact.” Ayotte v. Planned Parenthood of

N. New Eng., 546 U.S. 320, 329 (2006) (internal quotation marks omitted).

There is nothing anomalous about recognizing an

individual exception in the Free Exercise context. Indeed, the only anomaly is that religion is uniquely

susceptible to capture by facially neutral and generally applicable laws, because religion almost invariably involves conduct. See, e.g. Blaine L. Hutchison,

Revisiting Employment Division v. Smith, 91 U. Cin.

15

L. Rev. 396, 414-15 (2022); Lingo & Shietzelt, A Second-Class First Amendment Right?, 57 Wake Forest

L. Rev. supra at 749.

Indeed, this Court’s Free Exercise jurisprudence

for the last thirty years has been the anomaly, as it

focuses on the law at issue, rather than the conduct

being regulated. Lingo & Shietzelt, supra at 749. In

other First Amendment contexts, the key question for

the Court, in determining what level of scrutiny to be

applied, is the conduct at issue, not the characteristics

of the challenged law itself. For example, the Court

looks to the characteristics of the speech at issue to

determine if it receives heightened protection, lesser

protection, or none at all. See, e.g., Barnette, 319 U.S.

at 642 (identifying core categories of protected speech,

such as speech concerning “politics, nationalism, religion, or other matters of opinion.”); Central Hudson

Gas & Electric Corp. v. Public Service Commission of

New York, 447 U.S. 557, 556 (1980) (providing fourpart test for regulations of commercial speech); and

United States v. Stevens, 559 U.S. 460, 468-69 (2010)

(identifying categories of unprotected speech). The

same is true in this Court’s interpretation of the Establishment Clause (see, e.g., American Legion v.

American Humanist Ass’n, 139 S. Ct. 2067, 2087

(2019) (“While the Lemon Court ambitiously attempted to find a grand unified theory of the Establishment Clause, in later cases we have taken a more

modest approach that focuses on the particular issue

at hand and looks to history for guidance.”)) and the

Peaceable Assembly Clause (compare Edwards v.

South Carolina, 372 U.S. 229 (1963) (finding a First

Amendment violation where peaceful protesters were

16

arrested) with Feiner v. New York, 340 U.S. 315

(1951) (finding no First Amendment violation where

crowd was pushing, shoving, and milling around and

at least one member threatened violence if the police

did not act)).

Prior to this Court’s decision in Smith, it regularly

looked to the burden on religion caused by application

of a law and subjected any burden to the most exacting scrutiny. If the law failed to clear that high bar,

then this Court would enjoin its enforcement to prevent interfering with religious practice. See, e.g. Wisconsin v. Yoder, 406 U.S. 205; Sherbert v. Verner, 374

U.S. 398 (1963).

C.

Congress recognized the necessity of

individualized exemptions in RFRA

and RLUIPA

This case comes before the Court purely under the

auspices of the Free Exercise Clause and not the Religious Freedom Restoration Act or the Religious

Land Use and Institutionalized Persons Act, largely

because of steps the State took to moot the RLUIPA

claim. But these statutes still provide guidance in the

proper interpretation of this case. As three members

of this Court recognized last term, these statutes “restored part of the protection that Smith withdrew, but

they are both limited in scope and can be weakened

or repealed by Congress at any time. They are no substitute for a proper interpretation of the Free Exercise

Clause.” Fulton, 141 S. Ct at 1894 (Alito, J., concurring).

17

Those statutes restored the pre-Smith legal landscape, where strict scrutiny was applied to restrictions on religious exercise and provided that

where such burdens existed, and were not supported

by the highest justifications, the law should give way

and religious exercise should be accommodated.

RLUIPA, in particular, was passed without a single

negative vote. Id.

While not directly applicable to this case, these

statutes demonstrate the understanding of a coordinate branch of government on the proper interpretation of the Free Exercise Clause—that Congress believes that granting individual exceptions to generally

applicable laws and policies, specifically for prisoners.

48 U.S.C. § 2000cc-1. See also 48 U.S.C. § 2000cc-3(e)

(“A government may avoid the preemptive force of any

provision of this chapter by changing the policy or

practice that results in a substantial burden on religious exercise, by retaining the policy or practice and

exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates

the substantial burden.”).

Congress wrote RLUIPA against the background

of Turner. Rather than requiring a wholesale change

in prison policy, as the court below required, Congress

mandated a range of options, including individualized

exceptions. This Court should grant this case to make

clear that Congress is not alone in its view that the

Free Exercise Clause mandates individual exemptions from facially neutral policies that substantially

18

burden religion, but that this responsibility flows

from the text of the Constitution itself.

CONCLUSION

For these reasons, amicus respectfully requests

the Court grant the petition for certiorari.

Respectfully submitted,

LENA F. MASRI

GADEIR I. ABBAS

JUSTIN SADOWSKY

HANNAH MULLEN

CAIR LEGAL DEFENSE

FUND

453 New Jersey Ave SE

Washington, DC 20003

February 15, 2023

ALAN MYGATT-TAUBER

Counsel of Record

LAW OFFICE OF ALAN

MYGATT-TAUBER

10089 Ashley Circle NW

Silverdale, WA 98383

(202) 236-9734

alan@amtappeals.com