January 15, 2020
Muslim Americans persecuted by law enforcement deserve justice, the Center for Inquiry told the Supreme Court in a joint amicus brief, but warned that providing financial restitution through the Religious Freedom Restoration Act is misguided, dangerous, and unconstitutional.
Today the Center for Inquiry (CFI) and American Atheists (AA) filed a jointly written amicus brief with the Supreme Court in the case of FNU Tanzin v. Tanvir, which was also cosigned by Ex-Muslims of North America and Black Nonbelievers.
The case focuses on alleged behavior by government law enforcement operatives in the aftermath of the 9/11 attacks who are said to have approached multiple Muslim Americans to recruit them as confidential informants to report back on events at their local mosques. The targeted individuals refused, and, in response, were placed on the Do Not Fly list by the government. The question the Supreme Court faces here is whether the Religious Freedom Restoration Act of 1993 (RFRA) permits suits seeking monetary damages against individual federal employees.
“What the government did here is outrageous, but we can’t remedy one wrong with another,” said Nick Little, CFI’s Vice President and General Counsel, and co-author of the brief. “The violations of the rights of the individuals are clear. But that does not mean that RFRA, a law which has already harmed millions of Americans through its preferential treatment of religion, should be further enlarged to create from whole cloth a remedy of monetary damages.”
The brief, which can be read here, demonstrates how awarding monetary damages against individual government employees under RFRA was never contemplated by the law, and holding that threat over government workers would result in unwarranted and unrequired religious exemptions becoming commonplace, regardless of the harm this causes third parties.
“The notion that religious harms can be financially quantified, and compensated in dollars and cents, is nonsensical,” continued Little. “It would require our judges to make determinations they are simply unqualified to make and unconstitutionally involve them in religion.”
The brief also describes how awarding damages in this fashion would compound the unconstitutionality of RFRA, by making available a remedy only to religious individuals, while denying it to identically positioned non-religious ones. “Had the FBI gone to ex-Muslims and requested them to return to mosque and act as informants, they would be unable to sustain a RFRA claim,” said Little. “Making something punishable if done to a religious believer, but not when done to an atheist, is as plain a First Amendment violation as one can imagine.”
“Hard cases make bad law,” added Little. “It is essential the Court does not let its justifiable sympathy for the plight of these individuals who suffered terrible abuse of their rights, lead it to create an unconstitutional and unwarranted remedy under RFRA that will further harm the nonreligious in America.”