By Matthew Adler, Secular AZ legal intern
In a recent unanimous decision, the Supreme Court held that government officials may be sued in a personal capacity for money damages when they violate the Religious Freedom Restoration Act (RFRA). This decision was a step towards providing much needed justice to a group of Muslim men who had been victimized by the FBI following 9/11, but it also served to strengthen a highly dubious piece of legislation that is routinely used to circumvent the law.
The origins of this case, Tanzin v. Tanvir, date back to shortly after the events of September 11, 2001. Three Muslim men were asked by the FBI to act as informants against their religious communities. When they refused, FBI agents placed them on the no-fly list and stated that they would only be removed from it once they complied with the spying request. The question presented by this case was not whether these actions violated the RFRA, but instead whether the FBI agents could be sued for money damages in their personal capacity pursuant to the RFRA. After reviewing the language and history of the law, the court concluded that they could. Though the outcome was not substantially in doubt, this holding nevertheless strengthens the RFRA. While it is tempting to celebrate this decision as a step towards providing justice to victims of governmental blackmail, the RFRA remains a dangerous piece of legislation, and any decision that strengthens it should be viewed with concern.
The RFRA was proposed by Chuck Schumer back in 1993, and signed into law by President Bill Clinton that same year. The act was largely the result of the national outrage that followed Employment Decision v. Smith. In that case, the Supreme Court ruled that the state could deny unemployment benefits to a person who had been fired for using peyote, even though the use occurred in the context of a religious ritual within the Native American Church. The RFRA declares that laws may not substantially burden a person’s religion even if the law is religiously neutral and of general applicability. The exception is when the burden furthers a compelling government interest and is the least restrictive means of furthering that interest.
In 2014, the Supreme Court extended the law well beyond its original scope when it held that the RFRA can also apply to for-profit corporations. This was the infamous Burwell v. Hobby Lobby, which allowed Hobby Lobby to exclude contraceptives from their health insurance plans because such contraceptives were offensive to the corporation’s religious beliefs. One must note the irony in the fact that a bill proposed by a Democratic congressman and signed by a Democratic president now being used to deny women contraceptives. Even more ironically, the Satanic Temple is now invoking the RFRA to claim exceptions to laws that unduly restrict access to abortions, as abortions are considered by the temple to be a religious act.
The above facts are just a taste of the many ways in which the RFRA is utilized to achieve a diverse set of goals by an even more diverse set of actors. The problem with the RFRA and other similar pieces of legislation is that it is extraordinarily difficult to determine what constitutes the practice of religion. A person, or a corporation, can claim nearly anything falls within a religious purview, placing courts in the unenviable position of sorting out what is religion and what is mere opinion or prejudice.
This is a task that courts are not well-equipped to carry out, and are also often loath to even attempt. As a result, if one is dissatisfied with a particular law, that person need only invoke the magic word “religion,” and the government may become unable or unwilling to enforce the law. Until we more definitively determine what actions may be characterized as religious conduct and what actions should simply be governed by the generally applicable laws and norms of society, the RFRA and similar legislation will remain defective.
In many ways, the RFRA is like a gun. It is a powerful tool that, when used judiciously, can serve a valid purpose. When abused, however, it begets injustice. If this country’s struggle with gun control is any indication, one should be forgiven for being pessimistic about the prospect of finding the RFRA’s proper place in society.