The Supreme Court ruled in a unanimous decision on Thursday that three Muslim Americans can sue the FBI for financial damages following an incident where they put the men on the no-fly list, allegedly as political payback. Justice Clarence Thomas delivered the majority opinion. Justice Amy Coney Barrett was not involved in this case as she was not yet on the bench to hear it when it was argued in October.
In 2013, Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari filed a federal lawsuit alleging the FBI wanted the men to serve as confidential informants. The men refused, citing their Muslim faith. The men claim the FBI then punitively placed them on the national no-fly list. Tanvir, Algibhah, and Shinwari then sued the FBI, accusing them of violating the Religious Freedom Restoration Act. The FBI then took them off the list and said their lawsuit was moot, but the men pushed the suit forward.
In a statement, Lori Windham, Senior Counsel at Becket, which filed an amicus brief in support of the men, said, “We’re glad the Supreme Court unanimously emphasized that the government can’t expect to be let off the hook by simply changing its tune at the last second. This is a good decision that makes it easier to hold the government accountable when it violates Americans’ religious liberties.”
Thomas wrote in his brief, “To the extent the Government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so. Congress is best suited to create such a policy. Our task is simply to interpret the law as an ordinary person would. Although background presumptions can inform the understanding of a word or phrase, those presumptions must exist at the time of enactment. We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago.”
There are a couple of things this case highlights. For starters, it’s more common than people might realize for government institutions to violate a person’s free speech rights or religious liberties, then pivot and stop doing so as soon as they are challenged in court. The government will then claim the victim can’t bring a lawsuit or request damages for the harm previously caused — in other words, as the FBI did in this case, they will claim the case is moot. The Supreme Court ruling means they believe the government should be held responsible for their actions and that victims can pursue their damage claims to whatever end. Hopefully this will slow down or even stop the government from continually acting irresponsibly, then throwing their hands in the air and claiming innocence whenever they’re caught.
The implications of the decision are most important, but the reaction of center-left court watchers is interesting as well for what it shows about their opinions of religious liberty and the Religious Freedom Restoration Act (signed into law, you may recall, by President Bill Clinton). Mark Joseph Stern, who writes for Slate, tweeted about this case:
The facts in this case are compelling. But in light of the conservative majority’s ever-expanding conception of “religious liberty,” I am nervous that RFRA money damages will have a chilling effect on federal officials who enforce nondiscrimination laws. https://t.co/rWsOPY7A52 pic.twitter.com/x8lhAxYt6t
— Mark Joseph Stern (@mjs_DC) December 10, 2020
This portion is particularly revealing: “But in light of the conservative majority’s ever-expanding conception of ‘religious liberty,’ I am nervous that [Religious Freedom Restoration Act] money damages will have a chilling effect on federal officials who enforce nondiscrimination laws.”
But if federal officials are truly enforcing nondiscrimination laws, damages won’t apply — it’s illegal to discriminate under federal law. However, it’s also illegal to violate a person’s First Amendment rights, for example, booting Christian groups off a public university campus because of their religious beliefs. The Supreme Court’s ruling means that, in cases like those, the aggrieved students or groups could seek financial damages from the government. Yet Stern worries that will be abused.
The real concern should be over government violations of the First Amendment, not that people whose rights are violated may actually receive compensation for bigotry that until now had no real cost attached to it.
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.
