By Amanda Pescovitz, FTC law clerk

How clear does Congress have to be to authorize money damages against government officials sued in their personal capacities?

Behind this seemingly dry question of statutory interpretation may hide a dramatic expansion of the scope of remedies available under the Religious Freedom Restoration Act (RFRA).

The plaintiffs in Tanzin v. Tanvir, argued yesterday morning at the Supreme Court (audio here), are U.S. citizens and green card holders who allege that they were placed on the “no-fly” list in retaliation for refusing to serve as FBI informants against fellow Muslims. They allege that the defendants violated their rights under RFRA, which prohibits the government from placing a “substantial burden” on the free exercise of religion unless that burden furthers a compelling government interest and is the least restrictive means of doing so.

In recent years, RFRA has become a familiar tool of interest groups seeking to carve out religious exemptions to laws of general applicability. And, while sympathetic to the respondents’ plight, some fear that religious fundamentalists might exploit the potential for money damages under RFRA.

The district court originally dismissed the case, finding that RFRA did not authorize claims for money damages against officials sued in their personal capacity. The Second Circuit reversed, prompting the government to appeal to the Supreme Court.

Because the case turns on a narrow question of statutory meaning, the bulk of questioning at argument centered on the traditional tools of statutory interpretation. Stressing the need to read the words of RFRA in context, the justices looked to how terms were defined in the statute, analyzed the words surrounding it, and even referenced RFRA’s legislative history.

All parties seemed in agreement that the absence of a specific reference to money damages in the text of the statute was significant, but what it signified about Congress’ intentions remained elusive. At the end of oral arguments, it was unclear how the court would rule.

As for any downstream ramifications for opening government officials to being personally liable for RFRA violations, respondents reassured Justices Thomas and Kavanaugh that the defense of qualified immunity would sufficiently protect the interests of government officials who may not be in the best position at all times to determine if a particular action was the “least restrictive means” of justifying an infringement of free exercise.

Aside from a brief loss of audio during Justice Kavanaugh’s questioning of the petitioner, Tanzin v. Tanvir provides yet another example of a successful live broadcast from the high court, further bolstering the case to keep SCOTUS live once the pandemic has passed.