RFRA

Supreme Court Issues Unanimous Decision in Important Religious Freedom Case

The ruling allows Religious Freedom Restoration Act claimants - in this case Muslims subjected to discriminatory treatment by the FBI - to sue for money damages against government officials.

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Religious liberty cases often split the Supreme Court along predictable right vs. left ideological lines. In recent years, several such cases have been among the most contentious and controversial decided by the justices. Today, however, the Court decided an important religious liberty issue, and achieved complete unanimity. In Tanzin v. Tanvir, the justices agreed that the Religious Freedom Restoration Act allows plaintiffs to get money damages against individual federal officials who have violated their rights. The decision was written by conservative Justice Clarence Thomas, and joined by all seven other justices who heard the case (newly appointed Justice Amy Coney Barrett did not take part because she wasn't yet on the Court when the case was argued). I previously wrote about the issues at stake in the case here.

Here are some key passages from Thomas' opinion for the Court:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek "appropriate relief." The question here is whether "appropriate relief " includes claims for money damages against Government officials in their individual capacities. We hold that it does….

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost…..

We first have to determine if injured parties can sue Government officials in their personal capacities. RFRA's text provides a clear answer: They can. Persons may sue and obtain relief "against a government," §2000bb–1(c), which is defined to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." §2000bb–2(1) (emphasis added)….

The question then becomes what "appropriate relief " entails. Without a statutory definition, we turn to the phrase's plain meaning at the time of enactment…. "Appropriate" means "[s]pecially fitted or suitable, proper." 1 Oxford English Dictionary, at 586; see also Merriam-Webster's Collegiate Dictionary 57 (10th ed. 1996) ("especially suitable or compatible"). Because this language is "open-ended" on its face, what relief is " 'appropriate' " is "inherently context dependent." Sossamon v. Texas, 563 U. S. 277, 286 (2011) (interpreting identical language).

In the context of suits against Government officials, damages have long been awarded as appropriate relief….

Though more limited, damages against federal officials remain an appropriate form of relief today…

A damages remedy is not just "appropriate" relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations. For certain injuries, such as respondents' wasted plane tickets, effective relief consists of damages, not an injunction. See, e.g., DeMarco v. Davis, 914 F. 3d 383, 390 (CA5 2019) (destruction of religious property); Yang v. Sturner, 728 F. Supp. 845 (RI 1990), opinion withdrawn 750 F. Supp. 558 (RI 1990) (autopsy of son that violated Hmong beliefs)….  [I]t would be odd to construe RFRA in a manner that prevents courts from awarding such relief.

As Thomas notes, this ruling is important because money damages are often the only available remedy for RFRA plaintiffs. This is one such case, because there is no other way to compensate the plaintiffs for the losses they suffered as a result of the FBI's discriminatory decision to place them on the No Fly List.

Given the strength of the plaintiffs' case, it is not surprising the Court ruled in their favor. But it is notable that the ruling was so clear and unanimous. After oral argument, some observers, myself included, thought that a number of conservative justices might vote in favor of the government, or that at least we would get a fractured decision with various concurring opinions limiting its effect. That obviously didn't happen. The Court was unanimous, and Thomas's opinion doesn't hedge or mince any words.

In addition to being a win for the plaintiffs and future RFRA claimants seeking money damages, the ruling is also a rebuke to the Trump administration. Despite its supposed emphasis on championing religious liberty, the administration had taken the position that law enforcement agents cannot be subject to money damages in such cases.

The ruling also cuts against claims that the Court—especially the conservative justices—is only sympathetic to religious liberties claims when the plaintiffs are Christians, and especially hostile when they are Muslims. In this case, the claimants were Muslims going up against a major federal law enforcement agency. Yet they won a unanimous Supreme Court ruling.

I yield to no one (or at least to very few) in my opposition to the Court's terrible ruling in the 2018 travel ban case, which also involved discrimination against Muslims. But I also think that result was caused not by double standards against Muslims on the part of the justices, but by a more general double standard applied in immigration cases, where many constitutional rights are given far weaker protection than they would get in other contexts. That double standard is badly misguided and should be eliminated. But it is not the same thing as discrimination by the courts against Muslims, as such. The first step towards getting rid of the pernicious travel ban ruling is recognizing how it came about in the first place. Hopefully, the day will come when the Court overrules it.

In the meantime, this case stands as an important win for religious freedom, and a setback for the Trump administration and abusive federal officials. The result also adds to the extensive evidence that—at least outside the immigration context—the courts are actually doing a good job of protecting religious liberty, which today enjoys stronger judicial protection than at virtually any other time in US history.

NEXT: The Lack Of A Common Law Basis For Qualified Immunity

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  1. Yeah, foreign nationals on foreign soil under foreign jurisdiction don’t get US Constitutional rights. It’s a single standard because Americans in America under American jurisdiction don’t get to claim rights under foreign constitutions either. It was always crystal clear.

    The double standard was judges attempting to seize the Dept. of State and run it their preferred way because they wanted a different policy.

    1. Yeah, negative rights are a thing that exists, as conservatives always tell us.

      ‘Always crystal clear’ except to immigration lawyers who have made constitutional arguments, I guess.

      1. “Constitutional” arguments.

        They abandoned every Constitutional argument except (A) temporary restrictions on visitors from specific countries establishes an official religion in the US — not only laughable on its face, but it also doesn’t fit the list of banned countries, and (B) people here have some constitutional right to import visitors when and from wherever they wish — no, they really don’t; it’s always been up to the Dept. of State and State has always had broad discretion to conduct international relations without courts second-guessing policy.

        The whole dumb episode did a lot to delegitimize the judiciary and show Americans that judges can act with the same deranged partisanship as the news media and another political activists. Judges should care more about preserving civil society because they aren’t going to like the alternative.

  2. “Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities.”

    I don’t see how that is a RFRA violation.

    I think it is reprehensible, and likely a 14th Amendment violation, but this doesn’t prohibit them from practicing Islam.

    And why isn’t the wasted plane ticket a 5th Amendment “taking” issue with the Feds liable for reimbursement.

    1. Same thoughts as you. Except the 14th Amendment binds the States, not the federal government. The violation, if there is one, is of the 5th Amendment.

      Hypothetical. Someone is a member of a secular organization, let’s say the NRA or Planned Parenthood. Government recruits them as spies. They say no. Government retailiates, put the on the No-Fly list.

      A Fifth Amendment violation? Probably yes. A RFRA violation? No.

    2. But the first amendment also bars the government from establishing religion which the courts held include discriminating between one religion and another.

      It they were placed on the no fly list only because they were Muslim, that is arguably a violation of the establishment clause under current establishment clause doctrine.

      1. I’m not sure that’s right, but assuming it is, so what? That’s not the claim that was being raised here.

  3. Sweet.

    Next up. Bankrupting Cuomo and Newsom for their religious discrimination.

    1. I would like to see ISIS bring a case against Trump for not allowing them to practice their religion as they see fit.

      1. As would I. It would be extremely convenient for law enforcement for them to turn up inside an American court, especially if they give previous notice on the date and location.

  4. Does this portend a damages remedy for state RFRA claims?

    1. Surely that would depend on the state statute?

  5. As Thomas notes, this ruling is important because money damages are often the only available remedy for RFRA plaintiffs.

    What’s the basis for this assertion? It seems to me that this RFRA is in fact extremely unusual in having clearly defined and easily measurable economic damages.

    1. Government puts you in no fly list. you don’t find out you are in said list until a few years and wasted plane tickets after. You sue. You get taken off the list. You have no relief for those years you were on it.

      Government enacts policies targeting religious person. Sue to overturn policy. Policy is overturned. No relief for while the policy was in place.

      Is it kinda ridiculous that you get monetary relief for a small religious violation but not for the government beating you up? Yeah definitely. But that’s how the statutes are written / precedent is set. If you aren’t going to overrule qualified immunity, at the very least dont go against the clear text of the statute to extend it. And the court didn’t.

  6. What RFRA giveth, qualified immunity taketh away.

    1. The RFRA giveth a clearly established statutory right to exercise your religion.

    2. QI may result in individual ossifers getting away with it, this time.

      Won’t necessarily preclude recovery by plaintiffs.

  7. And yet if law enforcement officials beat, torture, or kill a person in custody they are almost always fully protected and their supervisors are always protected.

    1. If you aren’t gonna change bad law, at the very least dont extend it. The court didn’t extend it. I think that’s a positive development.

  8. An interesting thing here is this distinguishes RFRA from the free exercise clause. If plantiffs win Fulton and Employment Division is overturned, you can only sue for injunctive relief under the free exercise clause under Ex Parte Young. Now one would also be able to attach a RFRA monetary damages claim. That seems rather powerful.

  9. Ian Milhiser at Vox is annoyed that the ruling also improves the rights of Christians.

    1. Yeah, the left loved the RFRA until they figured out that it applied to Christians too.

      1. The Framers protected Satanists…good for them! 😉

      2. Quit making things up. RFRA was championed by Ted Kennedy, motivated by his Catholicism.

        Also, of course, there are plenty of Christian liberals. Quit with trying to gin up persecution where none exists.

        1. “Quit making things up.”

          ?? Millhiser really did write the article described above. And sure, the RFRA was passed by a Dem House and Senate and signed by a Dem President to overturn a conservative court case that overturned liberal precedent. But that all went out the window with Hobby Lobby.

          1. Ah, so you were just massively generalizing. Well, that sucks too.

            RFRA passed with massive bipartisan support; I don’t know that I’d characterize the case, and it’s opposition, as conservative or liberal.

            1. Why don’t you try reading the original comment first. The assertion made was that RFRA was originally approved by all sides of the political spectrum, but later fell out of favor with the left when Christians began asserting it in defense of infringements on their rights.
              Citing the original sponsors and their ideology does not refute, or even address, the assertion. It merely supports the first half of it.

              1. Yeah, and citing a single Vox article doesn’t prove that thesis either.

                1. How about citing all the left-wing opposition to Hobby Lobby?

                2. “Yeah, ”

                  I’ll take that as a concession.

                  “and citing a single Vox article doesn’t prove that thesis either.”

                  The Vox article was cited by someone else. He made an unsupported assertion. Which happens to be correct — there are many on the left who soured on RFRA once they realized that icky Christians, not just peyote-smoking Native Americans, can invoke it too.

      3. Whacky, since this is a case where the Christian Taliban loves RFRA, until a Muslim benefits from it too.

        I dunno if you went to law school or not, but one of the fundamental things I remember from Con Law I was “think about how a position can be used both for and against you”

        1. “Whacky, since this is a case where the Christian Taliban loves RFRA, until a Muslim benefits from it too.”

          8-0.

          1. Yes, 8-0 in favor of Muslim plaintiffs is exactly the point. I support this. The Christian Taliban … notsomuch.

            1. Care to cite ANY Christian legal sources that have opposed this?

              Or are you just pulling it out of your exit portal.

    2. Ian Millhiser has been pretty awful lately.

      1. Yeah, you can tell because he now apparently he speaks for all liberals.

  10. Of course, this wouldn’t even come up if they tackled the real issue here: The No Fly list!

    1. One step at a time.

      1. Honestly, the no fly list SHOULD be the first step here. A shadowy “list” the government maintains, you don’t know you’re on it until you’re denied a generally available service, how you get on it is mysterious and informal, how you get off of it is opaque, generally requires an expensive lawsuit if they don’t just voluntarily do it. It’s like a little Social Credit score in embryonic form.

        The thing is a constitutional abomination, and shouldn’t end up having to be taken down piecemeal on the basis that it’s infringing other rights indirectly.

  11. Cool. Unfortunately we can’t make the agents pay in their individual capacities.

    “In addition to being a win for the plaintiffs and future RFRA claimants seeking money damages, the ruling is also a rebuke to the Trump administration. Despite its supposed emphasis on championing religious liberty, the administration had taken the position that law enforcement agents cannot be subject to money damages in such cases.”

    It sure is. And it’s also a rebuke to the Obama administration, which took the same position below and actually engaged in the conduct. It’s nice when both sides get rebuked in the same opinion!

    1. The conduct in question was started during the Bush administration.

      1. According to thecomplaint, Mr. Tanvir was put on the no-fly list in 2010. But of course the Bush administration did plenty of bad stuff too, but that’s not what’s at issue in this case.

        1. Yes. But the FBI harassment began before that, and it was based on polices that were written during the Bush administration. I do agree it was a stain on Obama for not putting a stop to this.

          1. Maybe you mean, “Not refraining from taking it to the next level”?

    2. Prof. Somin’s tedious displays of TDS continue.

  12. I don’t see this as a religious freedom case, but a general civil rights case and about the liability of police who violate the civil rights. Putting someone on the no fly list because they won’t be a drug informant would also be a big problem.

  13. Prof. Somin has had such a blind spot with his hate of Trump. Perhaps with an incoming Biden administration we’ll see a pivot back to sanity?

    The travel ban case as some sort of religious discrimination was about as far-fetched an idea as you can come up with.

    1. Trump himself called it a Muslim ban, I don’t see where you’re getting it’s crazy to consider the religious component…

  14. Interesting that this case seems to have brought everyone together. I haven’t seen a single comment defending the government here.

  15. I’m not a lawyer, so I apologize if this is a stupid question, but, doesn’t this contradict the “qualified immunity” thing? Is it a special privilege for plaintiffs who are suing under the RFRA– in these cases, specially, qualified immunity does not protect the LEOs from liability? Can someone explain this in layman-speak, please? Thanks.

    1. The Court actually did mention that QI might well apply here. But the defendants had prevailed on a different theory, that RFRA does not provide for money damages against the agents individually. The Supremes reversed that decision.
      But QI remains as a possible defense. For that matter, they still have to prove their case, which as the discussion above may have problems. Hard to see how this is a religious discrimination case.

  16. I agree with the comments above that I don’t see how RFRA is the main issue.

    The Respondents could still practice their religion and the No Fly List program didn’t target Muslims (i.e. plenty of Muslims were passengers).

    At the same time, The No Fly List program definitely needs to have oversight to ensure 1A and 5A rights are protected.

    1. It just flat out needs to be abolished. A No Fly list that didn’t violate constitutional rights would be unrecognizable, and certainly wouldn’t achieve the program’s purported ends.

      The problem with the list is that you get put on it and deprived of equal protection without anything resembling due process. Add due process? “Hey, Achmar! You’re due in court next Tuesday, we’re going to try to prove you’re a terrorist so we can take away your right to fly. Don’t flee or change your plans, now.

      This sort of deprivation ought to require a full on trial before it can be imposed. And if you’ve got that much evidence somebody is a terrorist, why not just charge them with that, instead of leaving them free to plot, but depriving them of the use of commercial airlines?

      1. You are absolutely 100 percent right on this one.

      2. “This sort of deprivation ought to require a full on trial before it can be imposed.”

        And notice of what actions will get you put on the list.

        But as you say, just get rid of it.

    2. “I agree with the comments above that I don’t see how RFRA is the main issue.”

      They were targeted for recruitment, and extortion, because they were Muslim.

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