The Supreme Court on Tuesday heard a case that will decide whether people can sue members of the federal government for violating their religious beliefs.
The case, Tanzin v. Tanvir, involves three Muslim men who say that in 2013, the FBI put them on the no-fly list after they refused to inform on fellow members of their faith. The men allege that federal agents abused the power of the list and violated the Religious Freedom Restoration Act, a 1993 federal law that prohibits governments from placing “substantial burdens” on the free exercise of faith. They also argue that a provision within the RFRA calling for “appropriate relief” to aggrieved religious parties means that they should receive monetary compensation for the FBI’s treatment.
Their cause, championed by Muslim and religious liberty advocates, if successful, could lead to a significant broadening of the RFRA’s application.
The federal government, arguing against the men, Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari, maintains that the act’s application only applies to the government as a whole and that to allow people to sue agents in a personal capacity would force “even well-intentioned federal employees” to “navigate a minefield of liability that would be difficult to predict or avoid.” Furthermore, the government argues, the law’s “appropriate relief” provision is too vague to permit monetary compensation necessarily.
Deputy Solicitor General Edwin Kneedler argued before the court Tuesday that in the RFRA’s text, “government is the operative word,” meaning that the federal statute can only be applied to entities as a whole.
“It’s true that government is defined to include officials,” he said of the law. “But it includes officials after a whole series of entities that are undoubtedly acting and would be sued in their official capacity, as a department or an agency. So reading the term ‘official,’ consistent with that as the definition, we think that official means ‘official capacity.'”
Kneedler emphasized throughout his argument that the case rested on how the court decides to define “government” with regard to the law.
Representing the three Muslim men, Ramzi Kassem, a professor at the City University of New York, said that the RFRA is “no ordinary law.” Kassem cited Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County, a case in which the court reinterpreted Title VII of the Civil Rights Act to protect gay and transgender people, to say that the act is a “super-statute.”
In response to a question from Justice Sonia Sotomayor, Kassem said that the language of the RFRA allows for a broad interpretation, especially in the case of “appropriate relief.”
“Congress chose the most practical terms to achieve its ambitious purpose,” he said, pointing to the ways in which the law binds the federal, state, local governments.
Kassem concluded that the RFRA allows for people to seek relief against government officials using the force of law to violate their religious freedoms. Kneedler countered that its text does not explicitly include provisions for people to use the statute to sue individual government employees.
The RFRA, which was adopted by Congress in 1993, was a response to Employment Division v. Smith, a controversial case in which the Supreme Court found that laws, so long as they are generally applicable, do not violate the First Amendment’s free exercise clause. The court is expected to revisit the case in November, a move that could significantly broaden religious liberty protections.
Tanzin was originally scheduled to be heard in the spring but was delayed because of the coronavirus pandemic. The court heard arguments over the phone, with only eight justices, following the death of Ruth Bader Ginsburg. A decision is expected summer 2021.
