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.
