We often see liberty as in contest with law. Laws tell us what not to do, thereby restricting our freedom to act.
But the Supreme Court on Thursday showed us how law protects liberty. While most eyed the Supreme Court for action on election disputes, the justices handed down their decision in another important case: Tanzin v. Tanvir.
The case originated when two Muslim men accused the FBI of putting them on the government’s “No Fly List” in retaliation for declining to “act as informants against their religious communities.” Their placement then resulted in loss of plane tickets and work-related opportunities.
The Court did not assess the validity of those claims. Instead, it determined what the men could demand if the accusations were proven true. Specifically, could these men obtain money damages from those government officials as recompense?
Unanimously, the justices said yes. In what they did, the Court struck a blow for religious liberty. In how they did so, they displayed how the rule of law supported that liberty.
In addition to protecting religious liberty, Justice Thomas’s opinion concisely articulated how the rule of law gave such protection.
The law in question was the Religious Freedom Restoration Act (RFRA). Congress enacted the law in 1993. It did so in reaction to the 1990 Supreme Court case Employment Division v. Smith, which Congress believed wrongly understated the protection afforded by the First Amendment’s Free Exercise Clause. Under this law, governments must prove they have a compelling reason to burden a person’s religious exercise and that the government only do so in the least restrictive way possible. If the government violates this law, RFRA says the burdened person can “obtain appropriate relief against the government.”
Contra the national government’s claim, the Court said appropriate relief in Tanzin included money damages. In fact, Justice Clarence Thomas’s opinion said that, in some circumstances, monetary relief was not only appropriate but also the only form of recompense possible. In this case, for instance, it did no good to tell the government to remove the men from the No Fly List, as the government already had removed them. Moreover, the main loss the men suffered was monetary in the forfeited plane tickets and lost job opportunities. To deny this avenue to the men risked denying any meaningful protection of their religious liberty. It thus also risked similar lack of protection in for anyone in like circumstances.
In addition to protecting religious liberty, Thomas’s opinion concisely articulated how the rule of law gave such protection. A judge may personally believe that religious adherents deserve protection. He or she may think money damages a needed option in securing that protection. But judges cannot act based on their opinion. To do so would make them the rulers. Instead, they interpret and apply the law, passed by the people’s representatives.
This judicial submission to the law assumes that the text of a statute (or a constitution) can dictate to a judge what he or she must do, regardless of that judge’s personal preferences. Justice Thomas showed how a judge can work to so act, walking through how to read a text faithfully.
First, he addressed how the law permitted persons to sue government officials in their personal, not official, capacities. Recall that RFRA says persons can obtain relief “against the government.” In other laws, this phrasing would mean that the only government itself, not individuals acting under, could be sued. But Thomas noted how RFRA gives its own definition of what it means to sue the government, saying a government includes “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” It thus designates that relief against a government includes that obtained against particular officials. Moreover, its addition of “or other person acting under color of law” includes persons not acting in an official capacity, thus giving more reason to think lawsuits against individuals are allowed.
Second, Thomas showed two broad reasons why repaying monetary damages was the appropriate way to recompense those whose religious rights had been violated. First, such damages had a long history in American law. Thus, it was more than reasonable that the makers of RFRA would consider it one possible avenue of protection. Second, other, already-existing statutes supported such relief, including for violations of the First Amendment (wherein the Free Exercise Clause is found). This point, again, reinforced the Court’s reading of what the makers of RFRA had in mind, not the justices deciding the case.
Thomas’s commitment to reading the text showed how law can rule. Just as important as his reasoning was the vote. Despite deep divides on the Court on many issues, all eight justices (Amy Coney Barrett did not take part) agreed. The law bound them all, regardless of their own views.
Thus, in this opinion, we see how law protects liberty instead of restraining it. In particular, the Court rightly saw expansive protections for religious liberty in RFRA. At a time when that liberty faces consistent threat, we need this faithful interpretation all the more.
Adam Carrington is the Assistant Professor of Politics at Hillsdale College.