By Stephanie Taub, Senior Counsel
Last month, the U.S. Supreme Court issued a unanimous decision (8-0) concluding that federal officials can be held personally accountable for knowingly violating clearly established religious liberty rights. The primary result of the Court’s opinion is that people of faith who prove in court that their religious liberty rights have been harmed may be able to receive monetary compensation from federal employees.
Justice Clarence Thomas authored the Tanzin v. Tanvir opinion, which was joined by all seven of the other Justices. (Justice Amy Coney Barrett did not participate because she was not yet on the Court at the time of oral argument.) The decision turned on the proper interpretation of the Religious Freedom Restoration Act’s authorization of “appropriate relief.” Specifically, the Court concluded that the term includes monetary damages.
In the case, three Muslims who are either American citizens or lawful permanent residents claimed they were wrongly placed on the no-fly list, causing them to lose their jobs and preventing them from seeing family members for years. After they brought a lawsuit, they were removed from the no-fly list and able to see their family members again. The decision does not determine whether the religious plaintiffs ultimately will win their case. But it will allow the case to return to the trial court so the plaintiffs can have the chance to make their arguments. They now can have their day in court.
The decision in the case is a victory for religious liberty, primarily because it will stand as a warning to federal officials that they must be careful to respect religious freedom or else they may have to pay for the harm they cause out of their own pockets. This decision sends a message that these officials face real consequences for flagrant abuses of our rights.
The decision is also important because it closes a loophole that governments sometimes have used to avoid being held accountable for religious liberty violations. Normally, religious liberty lawsuits ask courts to strike down unconstitutional or discriminatory laws, preventing their future application to harm more people. However, sometimes a government will cease its discriminatory actions before a court can decide the matter, and the harm is only in the past. Without this case, some people who have been harmed by past violations wouldn’t be able to sue for any sort of financial compensation for the harm they suffered. In other words, some victims would not be able to seek justice in court.
The opinion follows and cites another unanimous 2018 decision which clarified that state actors can be held responsible for violations of the Free Exercise Clause of the First Amendment. In Sause v. Bauer, the U.S. Supreme Court explained that the First Amendment clearly protects the right to pray in one’s own home, and that state officers can be sued for monetary damages for egregious violations of this right.
Although this is a positive step forward for religious liberty, it is important to note that this is a specific issue that may not apply in many circumstances.
First, the Tanzin case only applies to federal government employees, not state government employees. The case interprets the Religious Freedom Restoration Act (RFRA), which only binds the federal government. Almost half of the states have their own state versions of this law, so the case may be relevant to the interpretation of those state laws.
Second, it only affects government officials who know or should have known that their actions violate the law. Government employees are generally entitled to qualified immunity, which makes it more difficult to successfully sue for monetary compensation. It is a high bar to clear, and in practice not many people suing these officials win in the end. That said, this case is important to hold the worst actors accountable.
Ultimately, the Court’s decision in Tanzin gives financial teeth to RFRA, a policy adopted by Congress (nearly unanimously) in 1993 and signed into law by then-President Bill Clinton. It does not guarantee religious Americans will always win in court, but it gives them an opportunity to make their case. And now, federal government officials know they could face real consequences for violating our first freedom.
One final note, it is rare to see a unanimous Supreme Court decision on issues of religious freedom these days. It is a positive sign that Justices with a variety of interpretive views can come together to agree that government officials should be held accountable for flagrant violations of our fundamental rights.
Note: This article was first published on The Federalist Society and is re-published here with permission. The article presents the main points of an op-ed published in The Federalist Society. This work was authored by Stephanie Taub. The full article can be found on The Federalist Society’s website, here.