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Religious freedom protections just got a lot sturdier

In the Nov. 4, 2020 photo, The Supreme Court in Washington. A unanimous Supreme Court ruled Thursday that Muslim men who were placed on the government’s no-fly list because they refused to serve as FBI informants can seek to hold federal agents financially liable. The justices continued a string of decisions friendly to religious interests in holding that the men could sue the agents under a 1993 religious freedom law.
| J. Scott Applewhite, Associated Press

Government officials cannot violate someone’s religious rights, then change the rules after that person sues and claim no harm was done. Nor can those officials be spared financial penalties for what they have done.

That decision by the U.S. Supreme Court last week was a huge stride for religious liberty. The fact it was a unanimous decision was that much more satisfying, given the divisive rhetoric about religious liberties during recent confirmation hearings. The newest justice, Amy Coney Barrett, did not participate in this ruling because the oral arguments took place before she was seated.

A statement by the Becket Fund for Religious Liberty notes that the decision ought to put an end to a “common tactic by the government bodies across the United States: changing harmful policies or actions the moment they are challenged in court, and then arguing that since the harm has ceased, the people harmed by their actions cannot even bring a lawsuit.”

Perhaps the best way to appreciate this ruling is to examine what led to the lawsuit in the first place.

FBI agents approached three Muslim men several years ago — Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari — wanting them to serve as undercover informants, reporting on what other people in their religious community were doing. The three men refused, saying it would violate a core tenet of their religion to do so.

The FBI then placed the three men on the national no-fly list, which the Muslim men claimed was in retaliation for their unwillingness to voluntarily spy on their fellow believers. Those claims are bolstered by the fact the three had done nothing to raise suspicions about themselves, and that the government originally considered them trustworthy enough to use as informants.

It shouldn’t be hard for virtually any believers in the United States, regardless of religion, to put themselves in the place of these three men and imagine how this would feel. Law enforcement agencies have, at various times, been suspicious of the actions of any number of faith-based communities, especially those considered to be on the fringes of mainstream beliefs.

Once on the no-fly list the three men said it was impossible for them to advance their careers, meet with distant loved ones or pursue educational opportunities. Not only could they not travel, they were tainted with terrorist suspicions.

They sued, claiming the FBI had violated the federal Religious Freedom Act. More than a year later, as the lawsuit was underway, the Department of Homeland Security told the three men they were now free to fly, and the District Court then dismissed claims for monetary damages.

Now, they are free to sue the agents for monetary penalties.

“A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against government employees. It is also the only form of relief that can remedy some RFRA violations,” Justice Clarence Thomas wrote in the court’s opinion. “For certain injuries, such as respondents’ wasted plane tickets, effective relief consists of damages, not an injunction.”

The government had argued that making individual employees financially liable for the consequences of their actions would make it difficult for employees to do their jobs. While not dismissing those concerns, the court correctly ruled that neither the law nor the Constitution prohibits such penalties.

The three Muslim men, meanwhile, suffered damages of their own while being punished for exercising their religion, a constitutionally guaranteed right under the First Amendment.

That right is now a lot sturdier.

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