A federal judge has given the US government until Tuesday evening to answer that question, which was posed by lawyers representing two Guantánamo detainees, Emad Hassan and Ahmed Rabbani, who have been held without charge or trial. Authorities at the prison have barred the two men from communal prayers during the holy month of Ramadan because they are on hunger strike. Two courts ruled previously that Hassan and Rabbani are not people, at least “within the scope” of the Religious Freedom Restoration Act, which prevents the government from substantially burdening a person’s freedom to exercise religion.
In last week’sHobby Lobby v. Burwell decision, the conservative majority of the Supreme Court ruled that the chain of craft stores, along with other closely held corporations,are within the scope of the RFRA. Three days later, lawyers representing the detainees filed newlawsuitscalling on a DC circuit court to restore the detainees’ right to communal prayers in light of the High Court’s interpretation.
“The Guantánamo Bay detainees, as flesh-and-blood human beings, are surely ‘individuals,’ and thus they are no less ‘person[s]’ than are for-profit corporations inHobby Lobby,” reads the motion. “The fact that the detainees are at Guantánamo Bay changes nothing, forHobby Lobbymakes clear that a ‘person’ whose religious free exercise is burdened under color of law need not be a US citizen or resident in order to enjoy the RFRA’s protections.”
The government has until 6pmto explain why Hassan and Rabbani have fewer religious rights than corporations. A hearing is set for July 10. If the Court ultimately finds that the RFRA does apply to the detainees, the government could still argue that the burden on the detainees’ freedom to exercise religion is justified by a “compelling government interest,” such as maintaining security at the prison. But it’s not clear how communal prayers actually threaten such an interest, or that preventing the two detainees from participating is “the least restrictive means” of satisfying the interest. “Least restrictive” is the standard required by the RFRA.
The application of theHobby Lobby decision to Guantánamo detainees is another indicator that the supposed “limits” of that decision are undetermined. Recent court cases expanding religious rights have largely done so for Christian denominations, including the Supreme Court’s most recent endorsement of Catholic objections to birth control, and another recent decision permitting officials to open town council meetings in Greece, New York, with Christian prayers. If courts interpret theHobby Lobbyruling as broadly as Justice Ruth Bader Ginsburgwarnedin her dissent, perhaps one positive outcome will be that the religious right will be forced to be more transparent about what it means when it talks about freedom of worship. For whom?