This column expresses the views of Asma Uddin, senior scholar at the Religious Freedom Center.
On Oct. 6, the U.S. Supreme Court heard Tanzin v. Tanvir, a case involving three Muslim men who say Federal Bureau of Investigation (FBI) agents put them on the national no-fly list as a way of coercing them into spying on the Muslim community. The Muslim plaintiffs believe that spying on their religious community violates their religious beliefs and sued the FBI agents under the Religious Freedom Restoration Act (RFRA). The specific issue in the case is whether RFRA permits suits for monetary damages against federal employees — but wrapped in this is the much broader matter of what RFRA is at its core.
Background on RFRA
To understand the issues at stake, it’s helpful to first understand RFRA’s background. Prior to the court’s 1990 decision in Employment Division v. Smith, the court had applied the highest standard of review — the strict scrutiny test — when determining whether the Free Exercise Clause of the U.S. Constitution had been violated. In the Smith case, the court changed that standard and held that neutral and generally applicable laws are not subject to heightened review when they impose substantial burdens on religion.
The Smith decision caused a widespread outcry, and in response, Congress enacted RFRA in 1993. (The case is currently up for review in Fulton v. City of Philadelphia, which the court was scheduled to hear Nov. 4). RFRA prohibits the government from placing a “substantial burden” on an individual’s exercise of religion unless that burden serves a compelling government interest and there is no less restrictive way to achieve that interest.
There is a question, however, about what exactly RFRA restored — was it merely the pre-Smith standard, or did it go beyond that? The opposing parties in Tanzin v. Tanvir took very different positions on that matter. The context of their argument was the remedies portion of RFRA, which allows people to seek “appropriate relief against a government” for a violation of the law. The question in the case was: Does RFRA provide for equitable relief only — that is, stop the government from placing burdens on people’s religious exercise — or does it also allow religious claimants to sue government officials in their personal capacity and receive monetary damages? Equitable relief simply regulates the official’s actions; monetary damages require officials to go a step further and compensate religious claimants financially.
The government argued that RFRA merely restored the pre-Smith standard and is therefore limited to equitable relief, because it didn’t significantly depart from the established remedial scheme at that time. Among the evidence presented: Prior to passing RFRA, Congress had enacted the Westfall Act, which adopts a high bar on suits against federal employees in order to prevent any chilling, or preventative, effects on federal officials when they’re implementing the law. (The idea is that if officials are afraid of being sued for implementing a law that restricts people’s religious exercise, the officials will be less likely to implement it.) According to the government, Congress rarely departs from its rule that monetary damages aren’t available and when it does, states so expressly — which it did not do in RFRA.
The government also argued that RFRA is ill-suited for personal damages. The statute is designed to create exemptions from generally-applicable laws and monetary damages are not well-suited to that sort of situation because an employee would have to decide on the spot whether to create an exemption from the rule he or she is supposed to be enforcing.
Tanvir sees RFRA as much more than a restoration of the pre-Smith standard — at the core of their case is that RFRA expanded it. During oral arguments, for example, Justice Stephen Breyer said RFRA was an effort to put into statutory form a constitutional interpretation that Smith rejected; he described RFRA as a constitutional statute, or a way of implementing what Congress thinks is the right interpretation of the First Amendment. And that interpretation didn’t include personal action.
Tanvir, however, said that the precedent set by the 2014 Burwell v. Hobby Lobby Stores, Inc., case suggests something very different. The court knows how to tether statutes to specific jurisprudence, but in Hobby Lobby, it didn’t do that. In fact, it said that RFRA marks “a complete separation from First Amendment case law.”
The court in that case also described RFRA as a super-statute — language that Tanvir et al. were able to use deftly to their advantage. When Justice Sonia Sotomayor asked whether the statute needs some sort of explicit text permitting monetary damages, Tanvir brought up RFRA’s “super-statute” status. Tanvir said RFRA “reflects a very ambitious goal to regulate federal, state and local actors and it did so with practical language.” If the statute had mentioned monetary damages explicitly, it would’ve elicited significant push back because it would have been seen as trying to pierce sovereign immunity (that is, permit monetary damages from state officials acting in their official capacity). So, Congress used (or avoided using) the language that would achieve the broadest goals with the least resistance.
As for the government’s argument about RFRA being ill-suited for personal damages, Tanvir had a sharp response to that, too. Tanvir pointed out that federal officials have the benefit of the qualified immunity defense and they could easily bring up a number of arguments to protect themselves: For example, that the measure served a compelling government interest and was the least restrictive means of achieving the government’s interests.
The reality, Tanvir noted, is it’s a rare case where religious claimants would prevail in a personal suit against government officials. For the egregious case where monetary damages are the only real remedies, there is no reason to categorically preclude them. Justice Sotomayor, too, brought up cases where injunctive relief would be insufficient to remedy the injury (for example, people whose family members had autopsies performed on them against their religious beliefs). She asked why would Congress, which was trying through RFRA to respond to these sorts of religious freedom violations, then seek to take away monetary damages?
Her inquiry, of course, went to the very heart of the matter: If monetary damages were not available pre-Smith, was Congress even “taking away” anything? The very nature of RFRA is in question.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum. Her email address is: [email protected].