The Dog that Doesn't Bark and the Defense that is not made - Exception Process is Ruse

As discussed in my last post, the military's record for approving religious exception requests is somewhat of a running joke. You can count the number of exceptions they have granted with a donut.

Per Judge Merryman: 

 "Whether characterized as a facial challenge or as a class of precisely similar as applied challenges, requiring only a single judicial determination, the plaintiffs’ contention is — based on current data — quite plausible that each branch’s procedure for requesting a religious exemption is a ruse that will result inevitably in the undifferentiated (and therefore unlawful under RFRA) denial of each service member’s request. Particularly, the data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA."

Which got me to thinking about federal employees. About 10% of the federal workforce or 175,000 employees are said to have pending exception requests. How many have been approved? I know of none. I have  read most of the filings in the 12 cases that have been filed against the Government since the EO was issued. One thing that I have noticed is that the Government frequently argues that claims are not ripe because exceptions for plaintiffs might yet be granted, but it never points to the grants that it has made. There was a mention of one in Church v. Biden, but when you look at the complaint a little bit, it looks like the purported grant there is disputed. If there was a grant, the Government is apparently trying to take it back. See discussion of Special Agent Hallfrisch at page 14 of the complaint. I don't know quite what to make of the Special Agent Hallfrisch situation, but if the Government is "trying to take it back," I will not count it as an accommodation.

 In response to my own motion for preliminary injunction, On October 5, 2021, the Government noted that the NLRB had already received requests from other NLRB employees on September 25, 2021 and September 28, 2021. I replied that it would be more assuring if the Government could have written that those requests had been granted.

Here we are two months after the first NLRB employee put in his or her request. How long does it take for a group of federal managers to evaluate the sincerity of one's beliefs? 

Given that the Government never points to all of those employees to whom it has granted exceptions, I think we can see in this absence the "dog that doesn't bark" and deduce that, like the military, the civilian agencies have not given any exceptions.

"Watson, what would a ruse look like?"