Yesterday, in The Religious Freedom and Restoration Act — Part 1, I looked at the history of the RFRA, and how it was first limited to apply only to the federal government, and then emasculated in the lower courts to the point that only about 15% of the cases claiming an illegal restriction of the free exercise of religion were successful.
But it gets better from there.
The turning point was the 2006 Supreme Court case, Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 US 418 (2006). The case was about an obscure religious group from Amazonia that used hoasca, a hallucinogen, in their religious rituals. The Supreme Court ruled that their use was protected by the RFRA, despite the chemical in hoasca being a restricted drug. In their ruling, the Supreme Court clarified, in a manner quite supportive of religious freedom, how the various tests in evaluating an RFRA claim should be evaluated.
Along the way, I think they made it easier for a person who goes barefoot with a religious reason to successfully claim RFRA protection.
Let me start by repeating the text of the RFRA. I’ll then go through the various clauses describing how they should be applied, and how that related to the religious barefooter.
42 U.S.C. § 2000bb-1. Free exercise of religion protected
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section
Government may substantially burden a person’s exercise of religion only if it 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. § 2000cc-5.
The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
Most of my discussion here will follow (or quote from), Hobby Lobby Stores v. Sebelius, (10th Circuit, 2013), which applies the result of O Centro.
The first thing a court has to do is decide whether a regulation “substantially burdens” religious exercise. According to the 10th Circuit,
[A] government act imposes a “substantial burden” on religious exercise if it: (1) “requires participation in an activity prohibited by a sincerely held religious belief,” (2) “prevents participation in conduct motivated by a sincerely held religious belief,” or (3) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.”
In the barefooting context, a shoe regulation clearly imposes a substantial burden in that (1) it forces them to wear shoes against their belief; (2) prevents them from being barefoot, conduct motivated by their belief; and (3) places substantial pressure to wear shoes. Note that only one of these is required, but all three apply.
The next determination is whether the belief is a sincerely held religious belief. What’s important here is that this belief does not have to be a central tenant of some recognized religion; it only has to be a sincerely-held belief in the individual person’s religion. As the 10th said in the case of a Moslem prisoner wanting a halal diet, “the issue is not whether the lack of a halal diet that includes meats substantially burdens the religious exercise of any Muslim practitioner, but whether it substantially burdens Mr. Abdulhaseeb’s own exercise of his sincerely held religious beliefs.”
This also works to the advantage of the religious barefooter. You don’t have to be a Franciscan Catholic to take advantage of it (by which I mean, your religious barefooting does not have to be associated with a major religion—it can be your own personal religion). What matters is whether you are sincere in your religious beliefs, not how “organized” you are in them. Let me also add that the courts are quite reluctant to doubt religious beliefs (just the sincerity). Even if they think the belief peculiar, or outside the mainstream, all that matters, again, is the sincerity.
There are two caveats to this that I’ll get to later.
From here, a court looks at whether the government has a compelling interest to apply the rule specifically to the religious subject. And the guidance from the Supreme Court says to do so looking beyond a broadly formulated interest. Instead, each court has to look at how it is applied to each particular claimant, and whether that meets the compelling interest standard.
For example, in O Centro, the government claimed a broad compelling interest in protecting people from drug use. However, for a given individual in the church, the courts now must scrutinize the specific asserted harm, not to society as a whole, but to the individual person. The state is required to show with particularity how its supposed strong interest would be protected by applying the rule to the religious practitioner. In O Centro‘s case, the church actually took precautions to prevent adverse reactions and addiction, and that was sufficient that the government’s strong interest did not prevail over the religious free exercise.
When it comes to barefooting, this should be a slam dunk. Claims for why shoes might be required are already pretty specious, claiming to protect the barefooter from him- or herself, and even then, the only sort of injury they can project is some sort of cut.
There is another great test as to whether a rule is compelling: whether it is applied broadly by the government. “[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest.”
Shoe rules only apply in odd locations: inside some buildings but not others or outdoors, or on some buses but not others, or inside a cave but not in the surrounding forests The application of barefoot rules are entirely haphazard. That leaves appreciable damage to any supposed vital interest. In addition, if you view it in terms of an interest in hazardous footwear (or lack thereof), the hazards of high-heels and sandals are left untouched.
Finally, the burden is on the government to show that their regulation is the least restrictive means of furthering their interest. That is, it does not place any more restriction on the activity that is absolutely necessary to meet its needs.
For a barefooting case, if the government claims that its interest is in avoiding being sued (actually, not a compelling interest as far as I can tell), the least restrictive means would not be a ban on bare feet, but a disclaimer of responsibility. If they claim their interest is foot health (again, I can’t see how that would really be compelling), all the other shoes they do allow would show it was not least restrictive. Actually, in the end, I don’t even see how this prong would end up mattering.
So, as we’ve seen, the RFRA is much stronger than any religious accommodation law. It actually has some teeth to it, with its main limitation being that it applies only to the Federal Government.
Buy hey, any place is a good start.
I mentioned earlier that there were two caveats when it came to establishing a sincere religious belief. The first caveat is that is must be a religious belief. As far as the courts are concerned, mere “spirituality” or a “way-of-life” is probably not sufficient. (This is actually, in my view, discriminatory, in that only religious people get this sort of get-out-of-jail card. Atheists need not apply and thereby get screwed. However, the courts do recognize that there exists religions less specific than One Holy God.)
The second caveat is that they will, at times, question the sincerity of a religious claim, particularly if there are suspicious circumstances. A good example was a case in which the defendant had been arrested a few times for marijuana possession, and then suddenly “found religion” to be a Rastafarian. The court in that case decided to doubt his conversion.
But aside from that, as I’ve said, the RFRA is a powerful legal tool for the religiously barefoot to get an exemption. It annoys me that such a powerful tool is even necessary to get around the ignorance and prejudice of governments, but hey, if you’ve got it, use it.
Finally, in the end, barefooters might have to sue to have their religious rights upheld. However, by being aware of their rights under the law, maybe the barefooters can get governmental employees to recognize those rights right on the spot.
You may also want to check out what I’ve written about State RFRAs.