Today, nearly three decades later, RFRA is under fire in Congress as it has been applied as a shield to protect employers (for instance Hobby Lobby) against federal healthcare and anti-discrimination laws. A finding of individual government employee liability could further undermine RFRA and cause Congress to roll it back.
On October 6, 2020, the United States Supreme Court heard oral argument on whether individual FBI agents are financially liable if they violate the Religious Freedom Restoration Act. The case involves Muslim-Americans who alleged that several FBI agents wrongfully put them on the “no-fly” list after they refused to act as informants against fellow Muslims in terrorism-related investigations.
Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari were U.S. citizens or green card holders who sued FBI agents in their personal capacity and said that they should be held personally responsible if they were found liable for violating the Religious Freedom Restoration Act (RFRA).
The trial court dismissed the case for individual damages, but the 2nd Circuit said they could pursue damages. The federal government, representing the agents, then asked the Supreme Court to hear the case.
Congress passed RFRA to overcome the holding in Employment Division v. Smith (1990) that said that government actions that impinge on religious freedom pass first amendment muster so long as they are neutral and apply equally to everyone. Subsequent case law (Boerne v. Flores) limited RFRA to federal actions.
At issue, in this case, is whether “appropriate relief” in the statute can hold an individual federal employee liable for paying the victim money. In the words of RFRA, “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”
Since 1994, as shown in this linked brief from Assistant Attorney General Walter Dellinger, the government has argued that RFRA does not waive “sovereign immunity,” which bars the award of monetary damages against state or federal governments. The term “appropriate relief” was intended to provide for variance as to how RFRA could be implemented.
There is also potential third-party liability in RFRA cases. In some circuits (called “defense circuits”) RFRA can provide a defense against violations of religious liberty by private parties, not just the federal government. That stems from a reading of RFRA that relief “against a government” is referencing a subset of potential parties. Other circuits (“nondefense circuits”) would hold that RFRA only applies when the government is a party. This situation came up in a bankruptcy case between creditors and the Archdiocese of Milwaukee. The creditors claimed that the Archdiocese engaged in a fraudulent transfer under the Bankruptcy Code. But the Archdiocese argued under RFRA that the bankruptcy laws burdened its religious liberty to make the transfer. The creditors argued that the Archdiocese could only use RFRA as a defense if the government were a party. (For an excellent treatment of parties in RFRA cases that concludes that ultimately RFRA should provide a defense in private-citizen suits, see Shuri Chaganti’s 2013 article in the Virginia Law Review, “Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Parties.”)
It is also noted that although RFRA only applies to actions of the federal government, several states adopted nearly identical language to use at the state level. If the Supreme Court finds that federal employees are liable for violating RFRA, it could also affect state employees.
During the oral argument, several justices seemed skeptical that an individual government employee would be able to balance the competing interests when the law did not coincide with the free exercise of religion, and to determine whether all other avenues had been explored to find out if there were alternatives, or that religious interests were at stake when violations occurred. Not all RFRA cases are simple, and RFRA itself is about exceptions to the general rule. It would not be reasonable for individual employees to be held personally financially liable for not perfectly navigating the complexity of free exercise issues.
Given the chilling effect on law enforcement and the broader implications of holding individual agents personally liable, the Court will probably not find that RFRA’s statutory language overrides the doctrine of sovereign immunity.
The amount of money available from an individual FBI agent would likely not be nearly enough to relieve the harm. If ordered to do so, they would probably declare bankruptcy to discharge the debt. Egregious actions are already punishable in administrative employment and criminal proceedings, and sometimes the government can pay damages. In other words, it is not a workable or practical solution.
When Congress intends to hold individual officials financially responsible, it makes it clear in the legislation. Had RFRA been intended at the outset in 1993 to hold individual employees responsible, it would have been the subject of much more discussion and would not likely have passed both houses nearly unanimously. Today, nearly three decades later, RFRA is under fire in Congress as it has been applied as a shield to protect employers (for instance Hobby Lobby) against federal healthcare and anti-discrimination laws. A finding of individual employee liability could further undermine RFRA and cause Congress to roll it back.
Note: The Yale Law School Free Exercise Clinic submitted an amicus brief on behalf of the General Conference of Seventh-day Adventists in favor of monetary damages. The brief argues that financial damages against agents were appropriate.
Case Materials including briefs and amicus briefs at Scotusblog.org: Tanzin v. Tanvir (19-71, Argued 10/6/2020)