Clare Therese Grady, Carmen Trotta, and Martha Hennessy v. United States

Petitioners, Catholic anti-nuclear activists, engaged in “symbolic disarmament” by damaging and spraypainting facilities on a nuclear submarine base, and were charged, convicted, and sentenced. Under the Religious Freedom Restoration Act (RFRA), the courts below found that the actions of the Petitioners (and their co-defendants) constituted the exercise of sincerely held religious beliefs which were burdened by their prosecution, but that the government had a compelling interest in safety, security, and smooth operation of the submarine base. Under the “least restrictive means” test of RFRA, the courts did not require the government to offer any alternatives to prosecution nor explain if or how any alternatives were considered, but instead only required the government to refute alternatives suggested by the defendants. The question presented is whether RFRA imposes a burden on the government to demonstrate that it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice (in this case, prosecution of Petitioners) as the First, Third and Ninth Circuits would require, or whether the persons claiming under RFRA the infringement of their religious freedoms bear the burden to provide alternative means which the government need merely refute, as the Eighth and Tenth Circuits would hold, and as the Eleventh Circuit held below. (i)