Liberties Reporting on First Amendment freedoms

Supreme Court strengthens anti-persecution law

Religious Liberty | Justices give the Religious Freedom Restoration Act some teeth
by Steve West
Posted 12/11/20, 05:33 pm

The Supreme Court on Thursday unanimously agreed a federal law upholding religious rights also allows people of faith to recover monetary damages from those who discriminate against them.

The case involved three Muslim men who claimed FBI agents placed them on the no-fly list when they refused to act as informants against other Muslims. The government subsequently removed them from the list, but the men continued to seek damages for airline tickets wasted and lost income from job opportunities they missed.

“It’s good to see that justices—left, right, and center—can agree that government officials should be held accountable for really flagrant violations of our fundamental right to religious liberty,” said First Liberty Institute’s Stephanie Taub, who filed a friend-of-the-court brief in the case.

A lower court had ruled the men’s case was moot because the FBI remedied the problem by restoring their travel privileges.

“We have seen again and again in religious freedom cases when a government actor really messes up, they will then backtrack quickly and try and fix it before they have to go to court,” said Lori Windham, an attorney with the religious liberty law firm Becket, which also filed a friend-of-the-court brief. She said this ruling could deter other government entities from violating people’s religious liberty in the first place.

The case centered on the Religious Freedom Restoration Act (RFRA), which Congress enacted to counter another Supreme Court decision, 1990’s Smith v. Employment Division. In that case, the majority ruled that a law that is neutral and generally applicable to everyone does not violate the First Amendment even if it burdens a person’s free exercise of religion. Writing for the majority at the time, then-Justice Antonin Scalia reasoned a person should not be able to use religion as a justification for violating a law aimed at everyone.

RFRA requires the government to show it has a compelling interest and has used the least restrictive means possible when it infringes on religious liberty. Federal judges have applied RFRA and the Smith precedent inconsistently over the years. A case argued before the Supreme Court earlier this fall, Fulton v. City of Philadelphia, asked the court to overturn its ruling in Smith once and for all.

Although RFRA enjoyed nearly unanimous support when Congress passed it in 1993, in recent years, critics have argued for its amendment. They say religious businesses and organizations are using the law to avoid the contraceptive mandate under the Affordable Care Act and deny the rights of LGBT individuals.

Yet Taub and Windham agree undercutting the law would be shortsighted. “It’s very clear that RFRA was bipartisan and should remain bipartisan, because it protects Americans of all religious beliefs from being forced by the government to violate their sincerely held religious beliefs,” Taub said.

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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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