Supreme Court: The morally ambiguous implications of the Court’s new religion case
December 10, 2020
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Let’s get one thing out of the way first: The Supreme Court’s 8-0 decision in Tanzin v. Tanvir on Thursday is almost certainly correct as a matter of law. Justice Clarence Thomas’s majority opinion was unanimous (Justice Amy Coney Barrett, who joined the Court too late to hear this case, did not participate), and it relies on a fairly straightforward reading of a federal religious liberty law.

Tanzin holds that federal officials may be personally liable if they violate an individual’s religious rights — a ruling that could benefit many religious liberty plaintiffs with genuinely heartbreaking claims against government officials, including the plaintiffs in this case. But it also potentially hands a new weapon to conservative culture warriors who seek broad exemptions from federal law.

The facts underlying Tanzin are enraging. The plaintiffs are Muslims who claim that FBI agencies placed them on the no-fly list in retaliation for the plaintiffs’ refusal to act as informants against other members of their Muslim communities. One of these plaintiffs, Muhammad Tanvir, alleged that he was unable to see his ailing mother in Pakistan, and that he had to quit his job as a long-haul trucker because he could no longer fly home after a one-way delivery.

The Court’s decision in Tanzin means that these Muslim plaintiffs will be allowed to seek money damages from the FBI agents who allegedly violated their religious rights — although it is possible that the agents will escape liability because of a doctrine known as “qualified immunity.”

As the Supreme Court held in Harlow v. Fitzgerald (1982), the qualified immunity doctrine provides that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Yet, while providing money damages to the Tanzin plaintiffs could help cure a terrible injustice, there’s a broader context to be mindful of beyond the details of this particular case.

In recent years, the Court’s conservative majority has also appeared very eager to expand the rights of religious conservatives to sue government officials, and some of the Court’s recent decisions suggest that such officials violate the law if they commit fairly minor slights against certain people of faith.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), for example, the Court scolded a state civil rights commissioner who made the objectively true statement that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history.”

So one implication of Tanzin is that religious conservatives may now be able to seek money damages from federal officials for violations that, until recently, the courts would have viewed as entirely benign.

The policy implications of Tanzin, in other words, are likely to spark ambivalence among liberals and conservatives alike. Outside of the religious liberty context, conservative judges have generally been hostile to efforts to make law enforcement officers personally liable for their illegal actions. Liberals, meanwhile, will undoubtedly have sympathy for the Tanzin plaintiffs. But the Court’s decision is also likely to empower religious conservatives who seek exemptions from anti-discrimination laws and other policies favored by liberals.

Tanzin only applies to federal officials, but other laws indicate that state officials can also be liable for “religious liberty” violations

It’s worth noting that the rule announced in Tanzin applies only to federal officials. The case arises under the Religious Freedom Restoration Act (RFRA), which allows someone whose religious faith has been unlawfully burdened to “obtain appropriate relief against a government.”

Yet, as Justice Thomas’s opinion explains, the word “government” is defined broadly and somewhat counterintuitively to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Thus, as Thomas writes, the term “‘government’ … extends beyond the term’s plain meaning to include officials.” So individual officials can be sued directly, and may potentially be personally liable.

The Supreme Court held in City of Boerne v. Flores (1997) that RFRA applies solely to the federal government — states and state officials are not bound by RFRA — and the law’s explicit text applies only to officials “of the United States.” So Tanzin’s holding does not directly apply to state officials.

That said, Thomas’s opinion spends considerable time discussing the statutory framework that allows civil rights plaintiffs to sue state officials who violate the Constitution — a framework that does permit money damages against those officials. And the Supreme Court’s conservative majority reads the Constitution’s provision protecting the “free exercise” of religion quite expansively.

So it is likely that federal and state officials will ultimately risk personal liability if they violate the Court’s ever-expanding definition of what constitutes a religious liberty violation.

The good news is that FBI agents and other law enforcement officers are likely to think twice before committing violations similar to the ones alleged by the Tanzin plaintiffs. But government officials may become more cautious about enforcing civil rights and other laws against religious objectors — because those officials could potentially pay a personal price if they do so.

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