Monday, July 14, 2014
It should, according to lawyers for detainees at Guantanamo, in arguing motions last week filed with the D.C. District Court on behalf of two hunger-striking detainees in the wake of Burwell v. Hobby Lobby Stores, Inc. The motions seek rulings that the detainees are protected "person[s]" within the meaning of the Religious Freedom Restoration Act (RFRA). In particular, the motions seek to prevent the Government from depriving the detainees of the right to participate in communal prayers during the Islamic holy month of Ramadan which began on June 28.
In Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009), the D.C. Circuit Court of Appeals held that Guantanamo detainees do not have religious free exercise rights as protected "person[s]" because, in the Court's view, RFRA does not apply to non-resident aliens. The D.C. Circuit upheld Rasul as law of the circuit in Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). Hobby Lobby changes all that, the detainees' lawyers argue, because the position taken by the D.C. Circuit in Rasul and Aamer is inconsistent with granting religious free exercise rights to for-profit corporations such as Hobby Lobby.
In support of the motions, a defense lawyer for the detainees argued that "[i]t is truly grotesque for the Obama folks to insist that a for-profit corporation is a person, but a flesh-and-blood human being at Guantanamo Bay is not."
In her already-famous dissent in Hobby Lobby, Justice Ginsburg warned that "approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,'" (citation omitted), and that the Court majority, by doing so, had "ventured into a minefield." Stay tuned.