WASHINGTON—The Supreme Court’s recent jurisprudence has made quite clear its views in two seemingly unrelated areas: religious rights, to which a majority of the justices have shown broad deference, and limits on public officials’ personal liability for misconduct, which the court has signaled a deep reluctance to expand.
Arguments Tuesday in a case involving the terrorist no-fly list put those themes in conflict.
Three Muslim men, all American citizens or lawful residents, say they were placed on the no-fly list after refusing counterterrorism agents’ efforts to recruit them as informers against fellow Muslims. They sued the agents under the federal Religious Freedom Restoration Act, a 1993 law that limits government practices that impede religious exercise—and authorizes “appropriate relief” for violations.
A federal appeals court in New York said last year that relief could include monetary damages from the responsible agents, should the plaintiffs win their case. Arguing the government’s appeal to the Supreme Court Tuesday, Deputy Solicitor General Edwin Kneedler said the most the plaintiffs could win was an injunction to stop the government’s unlawful activity. That would provide little benefit to the plaintiffs, who were removed from the no-fly list after they filed suit.
Justice Sonia Sotomayor questioned Mr. Kneedler’s position, noting that in considering the legislation Congress had taken testimony from “families whose loved ones were being subjected to autopsies in violation of their religious beliefs,” including “the fact that injunctive relief would not help those families.”
Mr. Kneedler replied that the religious freedom law was aimed at curbing government policies that burdened religious exercise, not individual episodes such as those. He stressed that Congress hadn’t explicitly authorized money damages and that the court shouldn’t imply they were available.
Justice Brett Kavanaugh turned that logic around.
“In thinking about what the text means here, I look at the words but also look at the words that aren’t there,” he said. “When it says ‘appropriate relief,’ it does not, of course, say ‘appropriate injunctive relief.’”
Under Chief Justice John Roberts, the conservative-leaning court has read the religious-freedom law expansively. In 2014, for example, the justices exempted the for-profit Hobby Lobby Stores Inc. from Affordable Care Act regulations requiring that workplace health-insurance plans provide contraceptive coverage, because the company’s owners held religious objections to certain forms of birth control.
Lawyers for the Muslim men cited the Hobby Lobby case extensively in their legal briefs. But while the current court has shown concern for religious belief, it has also expressed skepticism toward lawsuits against government officials.
In the early 1970s, for instance, a more liberal court implied personal liability in some circumstances for federal officials who violated civil rights, akin to the liability that the Reconstruction Congress imposed on state officials after the Civil War. While it hasn’t overturned those precedents, the justices have signaled their disinclination to extend federal officials’ liability beyond what Congress specifically authorizes.
Even when officials can be held personally liable in theory, the court has created doctrines that often allow police officers and others accused of misconduct to get lawsuits thrown out. The doctrine of qualified immunity, for instance, shields officials from liability unless they violate “clearly established” rights that a reasonable person would have known about.
Chief Justice John Roberts said that “there’s a very compelling case for the idea” that when the statute referred to officials, it meant only their actions in an “official capacity,” effectively eliminating the potential for money damages.
Ramzi Kassem, a law professor at the City University of New York representing the plaintiffs, pushed back.
“An official, under its ordinary dictionary meaning, is an individual, a person who holds an office,” meaning that individual can be sued personally, Mr. Kassem said.
The religious freedom act forbids the government from substantially burdening an individual’s religious exercise unless it is the least restrictive means to further a compelling government interest. Justice Clarence Thomas asked how the agents being sued would know whether their actions cleared that bar.
Mr. Kassem said the agents would be able to make that argument and raise defenses such as qualified immunity if the case went to trial.
“And they would be able to argue not only that there was no burden—that the burden was insubstantial—they’d be able to argue that there was a compelling government interest, and they’d be able to say that whatever they did was the least restrictive means,” Mr. Kassem said.
In their lawsuit the men—two are lawful permanent residents and one is a naturalized U.S. citizen—allege that the Federal Bureau of Investigation sought to recruit them as informers. When they refused, the FBI agents retaliated by placing them on the no-fly list, a secret roster of people forbidden from boarding commercial aircraft over terrorism concerns, according to the suit.
Lead plaintiff Muhammad Tanvir is a permanent resident whose wife and family remained in Pakistan. He alleged that agents approached him in February 2007 at a discount store where he worked in the Bronx, N.Y., to ask him about an acquaintance.
Mr. Tanvir said he had no useful information. Over the next three years, he declined repeated requests to serve as an informer during his visits to Pakistan. He claimed the agents put him on the no-fly list in 2010 to pressure him to cooperate.
The plaintiffs say that informing on fellow Muslims would require deception and violate their religious beliefs.
The case initially was scheduled for argument in March, but the justices postponed that month’s arguments after the coronavirus pandemic drove the court to close its building to the public and seek ways to reduce the spread of Covid-19. The court moved to remote arguments by teleconference, hearing some postponed cases in May and rescheduling others, including Mr. Tanvir’s, for the 2020-21 term.
The case, Tanzin v. Tanvir, is to be decided by an eight-member court, following the death of Justice Ruth Bader Ginsburg last month. A decision is expected before July.
Write to Jess Bravin at [email protected]
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