October 6: The Supreme Court has in recent years been quite receptive to lawsuits claiming violations of religious rights. But the justices seemed torn on Tuesday over whether to allow three Muslim men to sue federal officials for money under a law protecting religious freedom.
“Federal agents put my clients on the No-Fly List because they refused to spy on innocent coreligionists in violation of their Islamic beliefs,” Ramzi Kassem, a lawyer for the men, told the justices, who heard the case by telephone, New York Times reported. “My clients lost precious years with loved ones, plus jobs and educational opportunities.”
The No-Fly List appears to include tens of thousands of people. The criteria for inclusion are opaque, making it subject to errors and abuse.
According to the lawsuit in the case, Tanzin v. Tanvir, No. 19-71, the agents were particularly persistent in pursuing the lead plaintiff, Muhammad Tanvir, a lawful permanent resident who lived in Queens and worked as a long-haul truck driver. The job often required him to fly home after completing his deliveries.
When he tried to get on a flight in Atlanta in October 2010, he was turned away. Two F.B.I. agents drove him to a bus station, and it took him about 24 hours to get home.
Mr. Tanvir quit his job. On three occasions, he bought plane tickets to visit his mother in Pakistan, who was in failing health. He was not allowed to fly. Throughout, agents told him that they would help him get off the list — if he cooperated.
Mr. Tanvir and the other men sued under the Religious Freedom Restoration Act of 1993, which generally forbids the government to impose substantial burdens on religious beliefs. As the case reached a crucial phase, the men were told that they were now free to fly.
That made moot their request for a court order removing them from the No-Fly List. The question for the justices was whether the 1993 law also allowed them to sue for money.
Edwin S. Kneedler, a lawyer for the federal government, said the answer was no, pointing to a phrase in the law that allowed for “appropriate relief.” In the context of suits against the government, he said, that phrase has been understood to exclude suits for money.
Mr. Kassem noted that Congress had considered information about autopsies conducted in violation of Jewish and Hmong religious beliefs at hearings leading to the enactment of the 1993 law. “Those were consummated injuries that only damages could remedy,” he said.
He gave other examples of “one-time harms” in which he said injunctions would not provide relief: a teacher forcing a religious student to wear immodest clothing for gym, a prison guard destroying an inmate’s annotated Bible.
Justice Sonia Sotomayor said the examples of autopsies were telling. “Why would Congress take away from ‘appropriate relief’ the only relief that could help some people for the violation of their rights?” she asked.
Justice Neil M. Gorsuch focused on the phrase “appropriate relief.” He said it suggested that courts may “provide any kind of relief available, appropriate to the circumstances.”
But Justice Elena Kagan said that Congress would not have lightly subjected federal officials to suits for money. “Congress really has to be clear to do this,” she mused, “and Congress hasn’t been so clear.”
Justice Brett M. Kavanaugh said the statute “does not, of course, say ‘appropriate injunctive relief.’”
But he later focused on what he called “the mismatch” between the 1993 law “and the kinds of suits we’re talking about.”
The 1993 law does not require proof of intentional wrongdoing, he said, and allowing suits for money “subjects career F.B.I. agents to life-altering damages.”
“Just to be clear,” Justice Kavanaugh added, “I know there are strong interests here on both sides.”