MIRA HAQQANI—In October, the U.S. Supreme Court heard oral argument in Tanzin v. Tanvir, a case involving statutory interpretation that could have a colossal impact on law enforcement accountability and religious liberty. The plaintiffs in the case, including Muhammad Tanvir, are either citizens or lawful permanent residents of the United States, and each is a practicing Muslim. The men were approached by agents of the Federal Bureau of Investigation (FBI) in the aftermath of the terrorist attacks of September 11, 2001, to “serve as informants within their American Muslim communities.” When Tanvir and the others refused the offer, reasoning that spying would violate their religious beliefs, the agents placed them on the No-Fly List. They filed suit in 2013 asking to be removed from the No Fly List and seeking monetary damages from the agents in their individual capacities under the Religious Freedom Restoration Act (“RFRA”).
In its pursuit to “ensure that interests in religious freedom are protected,” RFRA permits a party “whose religious exercise has been burdened” to “obtain appropriate relief against a government.” Although the federal statute defines “government” as “branch, department, agency, instrumentality, and official (or other person acting under color of law),” it is silent on what is considered “appropriate relief.” This textual ambiguity was at the heart of the oral argument. The U.S. Supreme Court must now decide whether RFRA permits claims seeking money damages against federal government officials, agents, and employees sued in their individual capacities.
A complex case that could redefine the scope of relief in lawsuits brought under RFRA, Tanvir made its way to Washington D.C. following a convoluted procedural history. The District Court in the Southern District of New York dismissed the original lawsuit in 2015, holding that the plaintiffs lacked standing to sue because they were no longer on the No Fly List and that money damages were not an available remedy under RFRA. On appeal, the United States Court of Appeals for the Second Circuit reversed and refused to rehear the case, holding that Tanvir and the other plaintiffs could sue the FBI agents who harmed them for money damages.
Arguing on behalf of Tanvir before the eight Justices of the Supreme Court, City University of New York Law Professor Ramzi Kassem noted that “[his] clients lost precious years with loved ones, plus jobs and educational opportunities” and that, without the threat of monetary damages, agents will “flout RFRA until challenged in court and then back off.” However, Deputy Solicitor General Edwin Kneedler maintained that “appropriate relief against the government does not include money damages unless [the statute] expressly so provides” and that “the statute calls for injunctive relief” instead. But a monetary award here is the only way in which the men can be compensated; injunctive relief would be unavailing for such “one-time harms” because the federal government removed the plaintiffs from the No-Fly List before their first major court appearance.
The right to freedom of religion is boldly enshrined in the First Amendment of the U.S. Constitution, and Congress seemingly intended to provide broad protections for religious freedom when it enacted RFRA. The government argues that making federal law enforcement officers personally liable in cases like Tanvir would hurt its national security efforts by chilling employees responsible for executing federal laws. However, if the Supreme Court holds that monetary damages do not constitute “appropriate relief,” the plaintiffs will be turned away from the highest court in the land without justice.
Making Tanvir especially interesting, the Supreme Court must decide it in the backdrop of Ashcroft v. Iqbal and Ziglar v. Abbasi, two prominent cases in which the Court voiced its reluctance to extend Bivens-type remedies—which allow claimants to recover monetary damages against federal officers for civil rights violations—absent explicit congressional authorization. However, RFRA authorizes lawsuits seeking “appropriate relief” against government officials, which, according to the plaintiffs, includes money damages. While RFRA does not expressly include monetary damages as relief, it also does not expressly exclude them. Justice Sotomayor addressed this when, during oral argument, she asked, “Why would Congress take away from appropriate relief the only relief that could help some people for the violation of their rights?” In a similar vein, Justice Kavanaugh said, “In thinking about what the text means here, I look at the words but also look at the words that aren’t there. And when it says ‘appropriate relief,’ it does not, of course, say ‘appropriate injunctive relief. ‘”
The legal issue at hand is likely to have implications for any religious individual seeking relief under RFRA, not just the Muslim plaintiffs. At a time where conservative Christians and Muslims are so often framed as being at odds, this case provides a common point of interest for the two groups and adds complexity to the Court’s analysis. The Court must understand the nuances of protecting religious freedom in our current, polarized political climate. Although a ruling for the plaintiffs is the exclusive means of enacting justice, some progressives have noted that Tanvir embodies the inherent tension between RFRA’s role in safeguarding the freedoms of religious minorities and it being used as a tool by religious conservatives to challenge federal law enforcement officers in their execution of anti-discrimination laws.
Tanvir comes at a time when awareness of the frequent abuse of power by law enforcement officers to target Black, Brown, and Indigenous communities has emerged at the center of American socio-political discourse. With recent scenes of federal agents using tear gas and other forms of suppression against Black Lives Matter protestors, it is worth pondering the extent to which law enforcement officers may target individual Americans in the name of maintaining security before the Supreme Court draws a line.
Tanvir is rife with nuance and complexity while the scope of RFRA and remedies available under it have baffled courts for years. The Supreme Court’s decision is likely to have a far-reaching impact on the cross-section between law enforcement accountability and religious liberty, making it a highly anticipated decision.
