Intersecting Gender Discrimination, Religious Rights, and the Definition of “Persons”, or: What Happens at Gitmo?

When I think of Hobby Lobby cases, I think of cases concerning birth control, abortion, and bosses’ “rights” to decide what women can and cannot do with their bodies. Previously, I wrote about The Satanic Temple’s law suit in Missouri. In the past year, Burwell v Hobby Lobby has been used in attempts to justify refusing service to LGBTQ customers and firing women who’ve had abortions (but in big news, women who are denied birth control coverage by their bosses can now get it anyway). But it’s not always corporations or small businesses suing for the right to discriminate. In the past year, some interesting suits have emerged from, of all places, Guantanamo Bay, the U.S. military base that currently houses 116 detainees. One case in particular raises questions about religion, prison rights, and women’s rights.

This past year, two sets of Muslim prisoners at Guantanamo Bay have used Hobby Lobby’s understanding of who is protected by the first amendment to argue for their own religious rights. Last summer,  two Guantanamo Bay prisoners, Ahmad Rabbani and Emad Hassan, sued for the right to attend Ramadan services, from which they had previously been barred due to their hunger strike (most prisoners do have access to Ramadan services and fasting accommodations).

From MSNBC:

The suit, filed just three days after the Supreme Court’s controversial Hobby Lobby ruling, argues that the decision expands the legal definition of a “person whose religious free exercise rights are protected by the RFRA [Religious Freedom Restoration Act],” the law Hobby Lobby’s lawyers used to argue that the company’s religious beliefs should prevent them from having to support birth control insurance coverage.

“Hobby Lobby makes clear that all persons – human and corporate, citizen and foreigner, resident and alien – enjoy the special religious free exercise protections of the RFRA,” Rabbani and Hassan’s filings read.

Two previous D.C. Circuit decisions have ruled that Guantanamo Bay detainees are not “persons” under RFRA protection, but the detainees’ lawyers hope the Hobby Lobby case might have changed the rules.

This case seems pretty straightforward: regardless of their behavior in prison, these men are entitled to participate in a practice that is both fundamental to their religion and does not affect the lives of others. Despite its seeming simplicity, a definitive ruling has been difficult to find, either because the case is ongoing or because I don’t have a LexisNexis account.

This next case, however, goes into far murkier territory, and in many ways more closely resembles the case on which it draws.

Image from Wikimedia Commons

Image from Wikimedia Commons

In 2014, Guantanamo Bay implemented a rule stating that certain prisoners – namely, the five men involved in planning 9/11– needed to have physical contact with guards while being escorted anywhere outside their cells. Because this is the twenty-first century and there are in fact women in the military, this includes female guards. However, in Islamic law, it is forbidden for a man to touch a woman who is not his wife, mother, sister, or daughter. Therefore religious requirements and prison requirements are, at times, at odds.

One of these men, Khalid Sheikh Mohammed – the self-declared ‘mastermind’ behind the 9/11 attacks – has sued for the right to honor his religion and not be touched by a female guard. The case has been ongoing since October 2014, and has been full of twists and turns. I took the plunge into the dense, obfuscating world of legal writing so you don’t have to – below are just a few choice excerpts from the ongoing case (these particular excerpts are from February; as of now, this is the only decision that has been released):

The Defense asserts the Accused’s “Muslim faith requires him to avoid physical contact with any females to whom he is not married or related.” (citations removed). The Prosecution response requests the Commission deny the Defense motion and argues, “the Commission should give substantial deference to existing JTF-GTMO policy, find that the policy meets those substantial [penological] interests, such interests including maintaining proper staffing to run the necessary functions of the facility as well as preventing gender discrimination among female military service members, and not intercede in this matter.”

In other words, one side is saying “this violates a core tenant of my religion,” and the other side is saying “this request would result in less efficient prison management and problematic gender discrimination.” Neither sides’ statement is inaccurate, but they are in what seems to irreconcilable conflict. The case reads further:

On 7 November 2014, the Commission issued [an interim order] “enjoining the use of female guards in positions that require touching of the Accused during movements to and from attorney-client meetings and Commission hearings, until such time as the Commission makes a final ruling [on this case].”

That is to say, in November, the court temporarily ordered a ban on female guards physically touching prisoners. The interim order immediately began to cause problems:

It has additionally caused strife within the unit, hurting the morale of female guards who testified to feeling as though they were “less of a soldier.” Furthermore, implementing the Interim Order has required male guards to come in on days off or work extended hours to cover movements that cannot be manned by female guards, creating a rift between male and female guards and ultimately a negative effect on unit morale, cohesion, and performance.

One could imagine, furthermore, that due to their inability to carry out all of their duties, female guards would become much less efficient than male guards, which could lead to hiring discrimination.

Thinking back to Hobby Lobby, it seems like this case is both more clearly a violation of religious rights and a violation of personal rights/gender discrimination. To understand the significance of Hobby Lobby in this case, we have to go back to 2009, when the DC Circuit Court held that:

Non-resident aliens detained at Guantanamo Bay are not protected under the Religious Freedom Restoration Act (RFRA). The court determined the term “person” in the “RFRA should be read consistently with similar language in constitutional provisions, as interpreted by the Supreme Court at the time Congress enacted RFRA.”…The court explained, “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 other words, because Guantanamo Bay detainees were not considered entitled to the same due process to which U.S. citizens are entitled, the Circuit Court decided that the RFRA did not apply to them either. However, Hobby Lobby massively expanded the definition of “person” for the purposes of religious freedom. Based on this expanded definition, the detainees argue that Hobby Lobby “expanded the meaning of the term ‘person’ to include the Accused.”

That seems pretty straightforward, right? Corporations can be considered people, so it makes sense that prisoners – who are actual people, no matter how heinous their crimes – are also considered people. However, after Hobby Lobby, the DC Circuit revisited the 2009 case, and still held that “the RFRA does not apply extraterritorially to detainees at Guantanamo Bay.” Based on this post-Hobby Lobby ruling, the Defense argues that “As such, the Accused is not afforded protection under the RFRA.”

The complexities of this case go on and on. If the question is “Given that corporations can be understood to be ‘persons’ as far as constitutionally guaranteed religious freedoms are concerned, should non-citizen detainees not be given the same consideration?” my answer, at least, is an unqualified “yes.” Prisoners are, after all, actual human beings, regardless of what they may have done; corporations are not.

That seems pretty simple to me. But a significant number of Americans disagree with both Hobby Lobby and its predecessor, Citizens United, which helped pave the way for corporate personhood; Hobby Lobby itself was a 5-4 decision. Many of those opposed to Hobby Lobby are opposed on the grounds that one person’s (or, uh, craft store’s) religious freedom should not impinge upon another person’s freedom, say, the freedom to use whatever medication she and her doctor see fit.

The tension here between religious freedom and other personal freedoms is illustrated in part by the female guards’ counter-suit. Initially, the judge placed an order allowing prisoners to refuse to be touched by female guards for religious reasons, but in January, several female guards filed a discrimination suit:

The court reasoned, “If women are not allowed to perform these limited searches — or can perform them only on women inmates –the utility of women prison guards would be significantly diminished . . . . [W]omen employed as guards must be allowed to perform the important tasks required of their male counterparts.” Removing female guards from positions which require physical contact with detainees will negatively affect their professional development. Evaluations, often based on objective standards such as number of movements, will be affected; female guards may be relegated to positions of lesser-responsibility than their male counterparts; and, female guards will not gain valuable experience performing tasks they will be expected to supervise in the future.

That is all to say, there is really no question as to whether or not this would negatively affect women. But there is also no question that touching a non-family woman is a deeply-held belief, unlike, in Hobby Lobby’s case, being vaguely tied to certain forms of contraception through mandatory health plans. While many of the “religious freedom” cases and complaints happening these days seem patently ridiculous, the question of where to draw the line between one person’s religious freedom and another’s personal freedom is not ridiculous, nor is it new.

Charles Blow at the New York Times brings up this question, and argues that

when you enter the sphere of commerce in America — regardless of your “deeply held religious beliefs” — you have entered a nondiscriminatory zone in which your personal beliefs are checked at the register, and each customer is treated equally.

But when it is a question simply of individuals, what happens?

The RFRA states that “laws ‘neutral’ toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise,” and that “governments should not substantially burden religious exercise without compelling justification.” It later defines “compelling justification” as “Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.”

The female guard’s suit argues that “There is no doubt that preventing gender-based discrimination is a legitimate governmental interest. The detention facility policy allowing female guards to perform the full range of duties, including physical contact with detainees during moves, is rationally related to this interest.” Legally, therefore, the relevant questions are 1) whether or not these detainees qualify as “persons,” and 1) whether or not requiring contact between guards – male or female – and prisoners is the least restrictive means of preventing gender discrimination on the Guantanamo base. Philosophically, this returns to the seemingly unanswerable question of what, exactly, constitutes religious freedom, and whether, or why, it trumps other freedoms – think back to the Satanic Temple case and my concern that one needn’t have a religious reason to demand bodily integrity.

The particular case I cited – the only one to have reached a decision – denied the motion to prohibit physical contact between female guards and prisoners. However, the litigation around this issue is ongoing. It will be interesting to see what decision or decisions are ultimately reached, and how that furthers the conversation around how, exactly, we interpret religious freedom.

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