Amicus Brief: U.S. v. Kelly (Kings Bay Plowshares)

November 6, 2018

In April 2018, seven Catholic peace activists entered the Kings Bay Naval Submarine Base in Georgia to protest nuclear weapons, and were charged with federal crimes. They moved to dismiss the prosecution under the Religious Freedom Restoration Act. Professors Katherine Franke, Micah Schwartzman, and Nelson Tebbe filed an amicus brief in the Southern District of Georgia in support of neither party, to give the court the correct framework for deciding the motion.

Our brief argued that the government had misstated settled RFRA law at several points. RFRA plainly applies as a defense in criminal prosecutions, as the Supreme Court held in Gonzales v. O Centro Espirita. A claimant need not be completely prevented from religious exercise; the burden must be substantial, not total. The government’s suggestion that the defendants had acceptable religious alternatives to breaking the law was the same argument the Court rejected in Holt v. Hobbs, and it puts the state in the position of deciding what a person’s faith requires. And a compelling interest must be particular to the case at hand rather than a general interest in enforcing the law, with no reliance on slippery-slope reasoning.

Because the brief supported neither party, it took no position on whether these defendants should prevail, only on how the court should structure its analysis so that the ruling would give clear guidance to future RFRA claimants and courts.