Trump Administration on Wrong Side of Important Religious Freedom Case Before the Supreme Court
On Tuesday, the Supreme Court heard oral argument in Tanzin v. Tamvir, an important religious freedom case. The Trump administration, which in other contexts claims to be a champion of religious liberty, took a very different position here. Nick Sibilla of the Institute for Justice has a helpful summary of the issues at stake, in a Forbes article published the day before the argument:
The Trump Administration has prided itself as a defender of religious liberty. So it’s certainly been jarring to see the Justice Department urge the Supreme Court to curtail the nation’s preeminent protection for religious freedom.
On October 6, the Supreme Court will consider Tanzin v. Tanvir, a case that will decide if individuals can sue federal agents for damages under the Religious Freedom Restoration Act (RFRA). Passed by a near unanimous Congress in 1993, RFRA is most well-known for exempting and accommodating sincere religious beliefs from burdensome laws…
But RFRA was also modeled after Section 1983, the lodestar for civil rights litigation. Using language directly inspired by Section 1983, the Act expressly allows lawsuits against any “official (or other person acting under color of law)” if they “substantially burden a person’s exercise of religion.”
In this secondary role, RFRA has been critical to hold federal officials accountable by allowing individuals to sue them for damages. Although damage claims under RFRA are rather uncommon, without RFRA, victims would have few—if any—alternatives to vindicate their rights. Moreover, the small number of federal courts that have weighed in on this issue have almost universally sided with the plaintiffs, who in turn have been overwhelmingly Muslim victims of law enforcement abuse.
That includes Muhammad Tanvir, the respondent in the upcoming Supreme Court case. Tanvir is one of several Muslim men who allege they were harassed by the FBI to become informants. As part of this pressure campaign, FBI agents routinely called Tanvir and showed up at his workplace unannounced. At one point, they even threatened to deport Tanvir if he didn’t collaborate.
When the men refused to spy on their communities, citing their faith, the FBI retaliated by placing them on the No-Fly List. Being unable to fly came with devastating consequences. Tanvir could no longer work as a long-haul trucker and was forced to quit. Worse, the No-Fly List even prevented him from flying back home to Pakistan to see his mother, whose health was deteriorating.
Filing under RFRA, Tanvir and the others sued the FBI agents for damages. A district court dismissed their claims in 2016, but the Second Circuit U.S. Court of Appeal overturned that decision two years later….
Last summer, however, the Justice Department filed a cert petition calling on the Supreme Court to reverse the Second Circuit’s ruling; cert was granted in November.
Rather than try to downplay the importance of religious liberty, the Justice Department argued that damages against individual officers are not a form of “appropriate relief,” warning that even “the mere ‘specter of liability,’ might deter employees from carrying out their duties to the fullest extent.”
That’s a feature, not a bug. Officials should be deterred from violating religious freedom. Suing for damages plays a vital role in civil rights cases, and religious liberty is no exception….
In recent years, the Supreme Court has expanded protections for religious liberty while routinely blocking lawsuits against rogue agents. Tanzin v. Tanvir will reveal if religious freedom can trump this worrisome trend.
In this instance, it would seem, the administration’s support for religious freedom has been trumped by its solicitude for law enforcement agencies, which is also at the root of its opposition to ending qualified immunity. In addition, the administration that imposed a a series of discriminatory travel bans targeting Muslims may not be eager to crack down abuses of religious freedom where Muslims are often the primary victims.
As Sibilla explains in a later article analyzing the oral argument, RFRA allows “appropriate” remedies. There is room for reasonable disagreement about what qualifies as “appropriate” in some situation. But, as Sibillla describes, damage remedies are surely appropriate in a case like this one where they are the only available form of redress for the rights violations suffered by the victims, and the only effective means of deterring future violations:
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