Case No. 19-71 | 2d Cir.
October 6, 2020
Preview by Ian Bryant-Smith, Former Managing Editor
In 1990, the Supreme Court held that the Free Exercise Clause of the U.S. Constitution “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribed (or proscribes).’” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)). Three years later, Congress passed the Religious Freedom Restoration Act (“RFRA”), which overruled that decision with regard to federal law by returning to the previous strict scrutiny test for situations in which government actions substantially burden free exercise of religion. See 42 U.S.C. § 2000bb (2018). When the RFRA is violated, plaintiffs may seek “appropriate relief against a government.” § 2000bb-1(c).
In Tanzin v. Tanvir, the Court will determine whether the RFRA authorizes suits against federal employees for money damages in their individual capacities for violating its protections of religious belief. The plaintiffs were three Muslim men who alleged that the defendant FBI agents violated the RFRA by retaliating against them and improperly adding them to the No-Fly List for refusing to become informants.
The Southern District of New York dismissed the suit, holding that money damages against individual federal employees were not “appropriate relief.” The Second Circuit reversed.
The petitioner FBI agents argue that RFRA does not authorize money damages against them. They contend that there is a strong presumption against reading statutes to authorize money damages against government employees in their personal capacities, and that there is not clear evidence that Congress intended such remedies to be authorized under RFRA. Further, they point to the Religious Land Use and Institutionalized Persons Act, which was enacted after RFRA was deemed unconstitutional as applied to state governments and which the Court has already held does not authorize money damages.
The respondents counter by highlighting that RFRA was intended to apply broadly. It created an explicit private right of action where none had existed before, and granted even broader protection of religious liberty than pre-1990 Supreme Court precedent did. Further, they challenge the notion that there is a presumption against the availability of money damages from federal employees. And even if there were such a presumption, they argue, the statute’s text and legislative history all suggest that Congress intended money damages to be available.
Amicus briefs overwhelmingly support the position that RFRA ought to allow money damages. Just one, filed by American Atheists and the Center for Inquiry, argue that it should not. Another brief, co-authored by Freedom From Religion Foundation and American Humanist Association, argues that RFRA should be struck down altogether as violative of the Establishment Clause.