This column expresses the views of Asma Uddin, senior scholar at the Religious Freedom Center.
A recent Supreme Court ruling for three Muslim men placed on the federal no-fly list for refusing an FBI request to spy on their religious community marks an important development in religious liberty law and our national conversation on religious freedom.
In Tanzin v. Tanvir, the court stated the men were entitled to seek monetary damages from the FBI agents who asked them to spy. The ruling is a big win for the Muslim community; since 9/11, some government authorities and private citizens have treated the community with suspicion. The case is also victory for all Americans concerned with religious freedom and especially conservative Christians who in recent years have advocated for broad protection of their religious rights.
The Muslim men brought their case under the Religious Freedom Restoration Act (RFRA), a federal law that protects religious freedom.
One of the men, Muhammad Tanvir, formerly of New York, worked as a long-haul truck driver who often flew home after he completed his deliveries. In October 2010, as he tried to board a flight in Atlanta, authorities turned him away. Two FBI agents drove him to a bus station and he took a 24-hour bus ride home.
Tanvir quit his job — but his air travel difficulties continued. Several times, he bought tickets to visit his ailing mother in Pakistan but was not permitted to fly. He eventually learned the FBI agents who asked him to spy had placed his name on the no-fly list, which the government operates in near-total secrecy. The agents offered to help him get off the list if he agreed to serve as an FBI informant. The two other men said they faced similar pressure.
After the men sued the FBI agents in 2013, the government removed them from the list. But there was no compensation for the hardship they had suffered. The Supreme Court ruled the men could sue the FBI agents for damages under the religious freedom act.
Since 9/11, the government has used informants and other targeted programs to infiltrate Muslim spaces, making many Muslims afraid to attend their local mosque or wear religious garb for fear of attracting the FBI’s attention. In their fight against such intrusive practices, Muslims have been aided mostly by liberals on the court, while conservative justices have generally favored government surveillance over civil liberties.
But in the unanimous Tanzin decision, the conservative justices abandoned that posture and recognized the harm inflicted on Muslims’ religious practice in the name of national security.
The decision also complicates the narrative among many activists and scholars that the conservative justices treat Christians better than Muslims.
In 2018, the Supreme Court upheld President Donald J. Trump’s travel ban against five majority-Muslim countries. The court said Trump’s extensive anti-Muslim remarks did not undermine his authority to protect the border because, in national security and immigration matters, the president had near-total discretion.
That ruling came as a shock to many Americans since the court, just three weeks earlier, had held in favor of a Christian baker who declined to bake a wedding cake for a gay couple. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled that a series of anti-Christian statements by the Colorado commission demonstrated anti-religious hostility and was enough to invalidate its actions against the baker.
Then, in February 2019, Alabama executed Dominique Ray, a Muslim death row inmate, without accommodating his request to have an imam in the room with him. The prison employed only Christian clergy. Ray challenged the prison’s denial on religious liberty grounds. His case made it to the U.S. Supreme Court, which ruled against him and permitted the execution to proceed without the imam. Many Americans wondered, in the words of The New York Times editorial board, “Is religious freedom for Christians only?”
The ability to sue for money damages under RFRA is important not only to Muslims but also all other religious believers, including conservative Christians, who in recent years have felt embattled. In response to a broader culture they feel dislikes them, Christian conservatives have brought religious claims to carve out their ability to live according to their religious beliefs.
Like the baker in Masterpiece, for example, some conservative Christians have sought to be exempted from facilitating a same-sex wedding or affirming same-sex unions. In turn, states have punished these Christians for violating anti-discrimination statutes.
As Ian Millhiser at Vox predicts, Tanzin could change the calculus in these cases. Government officials, who risk personal liability if they violate religious freedom, might think twice before enforcing anti-discrimination laws against religious conservatives.
Many of these conservatives worry that religious freedom faces real threats. In the last few months alone, Justice Clarence Thomas, who wrote the Tanzin opinion, and Justice Samuel Alito issued public and emphatic statements about the current threats to Christians’ religious freedom. They point to religious objections to same-sex marriage and COVID-19 limitations on houses of worship — which have been contested many times, mostly by Christian churches.
Tanzin gave conservative Christians a way to fortify their religious freedom shield against those threats.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum. Her email address is: [email protected].