Re-examining religious liberty with Tanvir v Tanzin

With the recent passing of Justice Ruth Bader Ginsburg and President Trump’s imminent installation of a conservative justice in her place, many Americans are worried about the implications of an ideologically lopsided Court. This concern is particularly acute in the context of religious liberty, where the divide between the conservative and liberal factions of the Court has in recent years been most apparent. From the travel ban case to Masterpiece Cakeshop, which involved a Christian baker who declined to make a wedding cake for a gay couple, the justices appear to many as merely voicing their ideological tribe’s position on contested social issues. But there’s a case pending now that might disrupt that perception by presenting cross-cutting issues backed by cross-cutting coalitions.

Today the Court will hear Tanvir v. Tanzin. The case involves three Muslim men who say that F.B.I. agents put them on the No-Fly List as a way of coercing the men into spying on the Muslim community. The Muslim plaintiffs believe that spying on their religious community violates their religious beliefs and sued the FBI agents under the Religious Freedom Restoration Act (RFRA), a federal law protecting religious freedom. Under RFRA, they argued that the FBI forced them to choose between their religious beliefs and being subjected to the punishment of placement on the No-Fly List. The specific issue in the case is whether the plaintiffs can sue the FBI agents for money damages under RFRA.

That legal issue is key to the cross-cutting potential of the case. Being able to sue for money damages under RFRA is important not just to the Muslim plaintiffs in Tanvir; it’s also important to any religious believer who seeks to vindicate his/her rights under RFRA. Without financial liability, government officials can game the system by limiting people’s religious practice but then, when sued, eliminating the restriction only to impose it on the next, similar religious believer. This sort of gamesmanship threatens conservative Christian believers, too.

The reality is that religious freedom claims across faith communities are always interlinked. For example, an anti-religion precedent in a Christian case can later be applied to a Muslim case and vice versa. But in recent years, as religious liberty has become increasingly polarized, many Americans don’t see that interlink. Instead, each tribe’s rights are seen as in tension with one another: for marginalized minorities to have rights, white conservative Christians have to be stopped from asserting their own claims. 

This is what two prominent legal scholars argued in their The Atlantic piece, “The Weaponization of the Free Exercise Clause.”They charge the Supreme Court’s conservative majority with “transforming this First Amendment clause into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights.” Similarly, law professors Lee Epstein and Eric Posner argue that the Robert Court’s high number of pro-religion rulings are the conservative justices’ way of pushing back against socially liberal rulings. 

Critics of the Court have taken particular issue with its seemingly disparate treatment of Muslim and Christian claimants. In Trump v. Hawaii, the Court upheld President Trump’s travel ban against five majority-Muslim countries. In so holding, the Court said the President’s extensive anti-Muslim remarks were irrelevant to its inquiry because, in national security and immigration matters, the President had near-total discretion. This ruling came as a shock to many Americans since the Court just three weeks before the travel ban ruling had held in favor of the Christian baker in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, a series of anti-Christian statements by the Colorado commission was enough to invalidate its actions against the baker. 

Then, in February 2019, Alabama executed Dominique Ray, a Muslim death row inmate, without accommodating his request to have an imam in the room with him. The clergy allowed in the execution chamber were limited to the ones on staff, but only the prison employed Christian clergy. Ray challenged the prison’s denial on religious liberty grounds. His case made it to the U.S. Supreme Court, which ruled against him and permitted the execution to proceed without the imam. The decision shocked many Americans, leaving them wondering, in the words of The New York Times Editorial Board, “Is religious freedom for Christians only?”

So, the Court’s recent religion rulings have appeared to many as carrying an ideological agenda—one in which minorities like Muslims lose and conservative Christians win. Seen through this lens, the fact that Muslim and Christian interests are explicitly aligned in Tanvir offers an important, and rare, opportunity to depolarize a highly polarized debate. On the one hand, the Trump Administration has abandoned its usual role as defender of Christians’ religious interests and asked the Court to dismiss the suit because it would interfere with “sensitive matters of national security and law enforcement.” On the other hand, groups that usually support conservative Christian claims have filed briefs in favor of the Muslim plaintiffs, urging the Court to adopt their broad interpretation of RFRA.  

Meanwhile, some progressives — normally supportive of Muslim plaintiffs — are concerned about the implications of a win for future cases involving Christian conservatives. For example, in Masterpiece-type scenarios where a conservative Christian claim butts up against non-discrimination laws, a reading of RFRA that permits Tanvir to sue federal officials means conservative Christians could do the same. As Vox explains, “[f]ederal officials charged with enforcing many anti-discrimination laws could risk financial ruin if they bring an action against someone who claims that their faith requires them to discriminate.”

These nuances mix-up the usual politicized narrative of Muslims and progressives on one side and conservatives (and Trump) on the other. It adds gray, where Americans have become accustomed to seeing black-and-white. By injecting this complexity into an over-simplified — often toxic — debate, Tanvir might help Americans see religious liberty anew.

Asma T. Uddin, Author, When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. She is a senior scholar at Freedom Forum Institute and an Inclusive America Project fellow at the Aspen Institute.