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If Hobby Lobby is a religious 'person,' is a GTMO detainee one too?

Five years ago I wrote two articles for Commonweal about religion at Guantanamo. The shorter follow-up dealt with Rasul v. Rumsfeld (and Rasul v. Myers), in which the plaintiffs appealed in part to the Religious Freedom Restoration Act (RFRA).

At that time, courts ruled that Guantanamo detainees are not "persons" under RFRA:

Congress legislated against the background of precedent establishing that nonresident aliens were not among the 'person[s]' protected by the Fifth Amendment ... and were not among 'the people' protected by the Fourth Amendment.

In a concurring opinion, Justice Janice Rodgers Brown admitted she was troubled by the finding.

Accepting plaintiffs' argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. Yet, the majority's approach is not much better. It leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not "person[s]." This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human. (italics added)

She further argued that Congress did not foresee a situation like Guantanamo: "prolonged military detentions of alleged enemy combatants were not part of our consciousness." She wrote that "Congress should revisit RFRA with these circumstances in mind."

It is also true that Congress did not foresee large for-profit corporations as persons protected by RFRA. With the new, expanded definition of 'person' post-Hobby Lobby, lawyers representing Guantanamo detainees have thus filed a Temporary Restraining Order in the D.C. District Court.

In Hassan v. Obama, the petitioner applies for preliminary injunction, arguing that

the deprivation of his right to particpate in communal prayers violates the Religious Freedom Restoration Act (RFRA), which imposes a heightened standard of review where government substantially burdens "a person's" free religious exercise. The question here is whether Petitioner, as a nonresident alien detainee at Guantánamo Bay, is a “person” whose religious free exercise rights are protected by the RFRA. The Supreme Court’s newly minted decision in Burwell v. Hobby Lobby Stores, Inc. compels this Court’s determination that the answer to that question is yes, and thus Petitioner is entitled to a TRO protecting his right to pray communally during Ramadan.

It is not clear how this case will proceed. But it's not a shot in the dark either. The Hobby Lobby opinion specifically mentioned "resident noncitizen" as an example of those whom it would be "absurd" to deny could make a RFRA claim. From the Guantanamo petition:

Indeed, in an analogy similar to the present case, Hobby Lobby mentions a “resident noncitizen” as an example of a person whom it  “would be absurd” to exclude from the RFRA’s protection merely because the Supreme Court had not previously addressed such a person’s rights of religious free exercise. Likewise here, a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

The holding and express reasoning in Hobby Lobby makes Rasul a dead letter.

The cases grouped under Rasul have already had many days in many different courts with no success. But maybe, in a strange twist, the Hobby Lobby case could expand Ramadan freedom for these long-term, resident captives.

About the Author

Michael Peppard is associate professor of theology at Fordham University, author of The World's Oldest Church and The Son of God in the Roman World, and on Twitter @MichaelPeppard.



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It is also true that Congress did not foresee large for-profit corporations as persons protected by RFRA

Michael, This article specifically says Congress did consider this question and left it for the courts to decide based on the facts and circumstances of each case.



Of course GITMO detainees are not persons.  They are ... you know ... "those people" who really aren't persons.

Bruce: as Prof. Laycock says on p. 2 of the article you linked, "The original RFRA debates from 1990 to1993 did not specifically address whether the persons protected by the Act included for-­profit corporations or their controlling shareholders."

It seems clear that the later debates on RLPA did discuss the matter. My main point, though, was about unintended consequences when the meanings of terms in statutes as the result of new case law.

It is troubling (to say the least!) that the legal definition of "person" would not include, well, persons. If the intent was to ensure that RFRA protections applied to US citizens (and I don't know if that was the intent), then why would the statutory language not be "citizen" rather than "person"?  Or is the answer that, while a corporation is legally a person, it is not legally a citizen?

The United States of America began life with its white males arguing among themselves about whether slaves and women should be considered persons. It seems to be ending by making inanimate objects and legal fictions into persons. We've come a long way, Baby. (Whoops! Baby = not a person.)

Jim P:  Re: "citizen" versus "person."

American laws and the Constitution address all "American persons," unless (as, for example, with voting) there is a compelling reasn to include only citizens.

Freedom of religion, within the sense of the First Amendment, like freedom of speech or assembly, is not to be restrited by government only with respect to citizens, because we consider these to be fundamental rights of all persons, and the government has reponsibilities to justly rule all persons in its jurisdiction.



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