December 11, 2020
Several Muslim men who claim they were placed on the do-not-fly list for refusing to become informants against fellow Muslims can sue government officials for financial damages.
That was the bottom line of a U.S. Supreme Court decision issued Thursday in a key religious freedom decision likely to have significant implications in a range of cases in the future.
The case involved men who said they had been placed on the federal no-fly list because they would not agree to inform on fellow Muslims after being approached by the FBI. Doing so, they argued, would violate their religious beliefs by requiring them to spy on their religious community. They explained that being prevented from flying by the designation caused serious personal and professional repercussions.
The Department of Homeland Security eventually allowed the plaintiffs to fly, so they did not need to challenge their inclusion on the list. But they still wanted to recoup the damages incurred while they had been banned from flying (e.g., they were unable to travel to job interviews).
The precise question the court had to address was whether the relevant federal religious freedom law, the Religious Freedom Restoration Act (RFRA), allowed the men to seek monetary damage from the federal government officials who they said had infringed on their religious freedom.
The court unanimously decided that RFRA did allow lawsuits for financial damages.
Justice Clarence Thomas wrote the opinion, which was joined by all of the justices except Justice Amy Coney Barrett, who did not join the court until after the arguments in the case had already been made.
The court noted that RFRA says a person whose religious practice is interfered with by the federal government can sue to “obtain appropriate relief against a government.” The court pointed to the statute’s definition of government, which included an “official (or other person acting under color of law) of the United States.” This, the court explained, means that those harmed by a religious freedom violation can sue the individual government official (a “person” for purposes of RFRA).
The court also noted that the phrase in RFRA defining government is drawn from another civil rights statute which has been understood to allow suits against government employees. It is reasonable, the court found, to conclude that Congress borrowed this language for RFRA knowing that the interpretation in the religious freedom context would be consistent with the other statute’s use of the term.
The court next concluded that the “appropriate relief” that a person harmed by the government was authorized by RFRA to receive included financial damages. The court reasoned that this type of remedy has been allowed since the early Republic and has been implicitly recognized in other federal laws governing damage claims against the government, and that the civil rights law that RFRA referenced also allows for monetary damages from government employees.
Here, the court said, financial damages are “the only form of relief that can remedy some RFRA violations,” like the “wasted plane tickets.”
This decision is clearly important to the men who were harmed by being placed on the no-fly list. It may also be important to others whose ability to live consistent with their religious beliefs is harmed by government officials. It creates an important incentive to government officials to carefully consider decisions that could interfere with religious practice. They cannot, after this decision, just assume the deep pockets of the government will cover the costs of any wrongdoing.
Moving forward, responsibility for one’s actions will be required for government officials like it is for the rest of us – and that offers relief for both the Muslim plaintiffs and the rest of us.
A recent news story pointed out that President Joe Biden has begun his administration with a strong record for getting new federal judges confirmed. Since taking office, he has managed to secure the confirmation of eight federal judges, more than any president since Richard Nixon.
With vision, leadership and sufficient efforts on the ground, we can muster the political will to plant “the Utah way” in the hearts and minds of future generations.
So if a destructive CRT ban is at best a partial policy solution – which may ultimately prove ineffective – what are the alternative (or perhaps additional) policy options that leaders should consider?