On Friday, the Trump administration asked the Supreme Court to take up a case involving Muslim men who were allegedly harassed and intimidated by FBI agents who wanted the men to become informants. The allegations in Tanvir v. Tanzin are horrifying. Nevertheless, the Trump administration is correct that a lower court decision ruling in these men’s favor was wrongly decided.
Should the lower court decision in Tanvir stand, civil rights officials charged with stopping discrimination could be bankrupted if they make an impolitic comment while doing their job. In a world where the Supreme Court is hypersensitive to the grievances of conservative Christians, the kind of claim at issue in Tanvir endangers America’s ability to enforce many bans on discrimination.
Many of the allegations in Tanvir are shocking. Plaintiff Muhammad Tanvir, for example, alleges that he was approached by federal agents and asked “whether he had anything he ‘could share’ with the FBI about the American Muslim community.” After Tanvir told them that he did not wish to become an informant and knew nothing relevant to law enforcement, the agents allegedly threatened him with deportation and placed him on the “No Fly List.”
As a result, Tanvir says he was unable to visit his ailing mother in Pakistan. He also alleges that he had to quit his job as a long-haul trucker because he was no longer able to fly home after one-way deliveries.
A panel of three federal judges, all appointed by Democratic presidents, held that Tanvir and his co-plaintiffs could sue the FBI agents who allegedly harassed them under the Religious Freedom Restoration Act (RFRA), the primary federal statute governing “religious liberty” claims. Notably, their opinion in Tanvir held that these agents could potentially be personally liable for violating RFRA — that is, they could have to pay out of their own pockets for violating the law. The broader context here is that this Court is hypersensitive to claims by conservative Christians and dismissive of claims by Muslims. So if there is a damages remedy available under RFRA only one side is likely to benefit.
It’s important to understand, however, that a decision holding that RFRA allows religious liberty plaintiffs to collect from individual government employees would not be limited to cases like Tanvir. It would also extend to many cases brought by conservative Christian plaintiffs who refuse to obey civil rights law.
Consider Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving that Colorado baker who refused to bake a wedding cake for a gay couple because he objects to same-sex marriage on religious grounds. The opinion in Masterpiece Cakeshop still permits states to enforce anti-discrimination laws protecting LGBTQ individuals, but it also imposes an unusual amount of tone policing on civil rights commissioners.
Justice Anthony Kennedy appeared offended by a handful of statements by some of Colorado’s commissioners that, in his words, displayed “clear and impermissible hostility toward the sincere religious beliefs that motivated” the baker’s decision to discriminate in violation of the law. One commissioner, for example, noted that religion is often used to provide a moral justification for bigotry.
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
As a factual matter, this statement should be uncontroversial. Indeed, the Supreme Court itself called out a Virginia trial judge for using religion to justify a racist “anti-miscegenation” law in Loving v. Virginia. “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” that trial judge wrote, adding that this sorting shows that God “did not intend for the races to mix.”
In an age when the Supreme Court was less concerned about the grievances of Christian-identified social conservatives who use their religion to justify discrimination, the court itself rejected such language.
Admittedly, Masterpiece Cakeshop involved a state anti-discrimination law, while Tanvir arises under RFRA — a statute that only applies to the federal government. Nevertheless, Masterpiece Cakeshop stands for the proposition that a statement that conservative Christians find insulting can itself provide the basis of a religious liberty lawsuit.
That means that, if the plaintiffs’ RFRA argument prevails in Tanvir, federal civil rights officials risk their own financial security if they make a critical comment about someone who violates a civil rights law, and a federal judge later deems that comment to be insufficiently polite to the Christian right.
Two other points are worth making here. The first is that the question of whether RFRA makes government employees personally liable to religious liberty plaintiffs is a matter of statutory interpretation, not simply a question of how RFRA sensibly should operate in a post-Masterpiece Cakeshop world.
But RFRA’s text does not support the outcome the Tanvir plaintiffs seek. Among other things, RFRA explicitly states that its purpose is to restore the relatively broad religious liberty protections that existed before the Supreme Court’s 1990 decision in Employment Division v. Smith. Yet, as the Supreme Court later explained in Ashcroft v. Iqbal, those protections were never so broad as to allow an “implied damages remedy under the Free Exercise Clause.”
The second point is that a major thrust of the Supreme Court’s decision in Iqbal is that suits holding government employees personally liable for constitutional violations are “disfavored.” In a world where the Supreme Court was more sympathetic to victims of such violations, the Tanvir plaintiffs allege a strong claim under the Fifth Amendment, which provides that no one shall be “deprived of life, liberty, or property, without due process of law.”
But the RFRA statute does not permit religious liberty plaintiffs to be treated differently than other people suing federal officials — at least, not in the way the Tanvir plaintiffs claim. And, in any event, the consequences of a decision treating them differently could be catastrophic to civil rights enforcement, so long as Masterpiece Cakeshop remains good law.