The Supreme Court heard its first religious liberty case of the year on Oct. 5. Tanzin v. Tanvir is a somewhat complex case that touches on religious liberty issues and national security and will decide what, if any, damages the government should owe a person should it violate someone’s constitutional rights.
The case involves three Muslim men who allege the FBI placed them on the no-fly list after they refused to act as informants against fellow Muslims. The men sued the FBI and just before going to court, the FBI dropped them from the list and asked the court to dismiss the case, claiming it became moot. While the case clearly involves religious liberty elements — both attorneys argued about the Religious Freedom Restoration Act, or RFRA, which President Clinton signed into law in 1993 — the issue in question is whether or not the law outlines a right to monetary damages when liberties are violated.
Opponents and allies of the Muslim plaintiffs offered varying views on the case. For example, American Atheists think that granting the Muslim men any kind of damages would make “religious” people superior, or grant them more rights, than non-religious people.
Today, the U.S. Supreme Court will hear Tanzin v. Tanvir, a case that could give religious people special legal privileges, turning nonreligious Americans into second-class citizens. Our full statement sounding the alarm: https://t.co/4m0YlDIQhK
— American Atheists (@AmericanAtheist) October 6, 2020
However, the Sikh Coalition made the opposite case. “We hope that they hold the federal govt accountable for RFRA violations,” the organization tweeted. “Allowing monetary compensation to those whose rights were denied is just–and it deters future violations.”
Gabriel Malor, himself an attorney, tweeted the reminder that although there are religious liberty aspects to this case, it really is about damages and what RFRA says about it (the entire thread is worth a read for law fanatics).
This is about RFRA, but calling it a religion case misses the point.
The question is whether the statute authorizes money damages against federal employees in their personal capacities for RFRA violations.
— Gabriel Malor (@gabrielmalor) October 6, 2020
The religious liberty firm Becket filed an amicus brief on behalf of the Muslim men, arguing that the government should be held accountable when it violates a person’s religious liberties. Lori Windham, an attorney at Becket, tweeted, “Government officials should not get to target someone for their religious beliefs and then use procedural loopholes to get off scot-free. It’s a common tactic when government actors fear a loss in court, and it gets used against Americans of all faiths.”
During oral arguments, the justices seemed aware and sympathetic to the philosophical or moral concept that a person should receive compensation for a violation of rights but did express reservation as to exactly what that should be. As Windham tweeted, “At argument, the justices emphasized that #RFRA was passed to create broad protections for religious exercise. They seemed skeptical of the federal government’s request to adopt a narrow reading of the law here.”
When it passed RFRA, Congress did not explicitly express the extent to which the government should be liable for religious liberty violations. The law simply says that a person might get “appropriate relief against a government” where government is defined to include, among other things, an “official (or other person acting under color of law).” Several of the justices asked the attorneys to define or explain that as it relates to the case.
Even though a lower court said these Muslim men are entitled to monetary damages based on RFRA, the justices didn’t seem convinced that RFRA allows for that. Even if it does, they seemed to argue in a way that implied those details should be legislated, not decided by the Supreme Court.
While I am generally sympathetic to most religious liberty claims, in this particular case, it’s not terribly clear that the RFRA allows for specific monetary damages for a violation of liberties. If the government should pay damages to plaintiffs, Congress should legislate it explicitly.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
