Amicus Curiae Brief — FNU Tanzin, et al., Petitioners v. Muhammad Tanvir, et al.

Supreme Court briefJan 13, 2020

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No. 19-71

IN THE

Supreme Court of the United States

————

FNU TANZIN, et al.,

Petitioners,

MUHAMMAD TANVIR, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

————

BRIEF OF AMERICAN ATHEISTS,

CENTER FOR INQUIRY,

EX-MUSLIMS OF NORTH AMERICA, AND

BLACK NONBELIEVERS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

NICHOLAS J. LITTLE

CENTER FOR INQUIRY

1012 14th St. NW, Ste. 205

Washington, DC 20005

(202) 629-2403

legal@centerforinquiry.org

GEOFFREY T. BLACKWELL

Counsel of Record

AMERICAN ATHEISTS, INC.

718 7th St. NW

Washington, DC 20001

(908) 276-7300, ext. 310

legal@atheists.org

Counsel for Amici Curiae

January 13, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICI CURIAE ........................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

I. DAMAGES ARE NOT AN APPROPRIATE REMEDY FOR A RFRA

VIOLATION ..............................................

A. Congress Neither Intended Nor Envisioned Damages ...................................

B. The Award of Damages Undermines

the Purpose of RFRA ...........................

C. The Award of Damages Under RFRA

is Contrary to Public Policy ................

1. Fear of Damage Awards Will

Encourage Unwarranted Religious

Exemptions to the Detriment of

Third Parties ..................................

2. Creation of a Damages Remedy

Under RFRA Changes the Balance

Drawn in Law .................................

D. Qualified Immunity Precludes Imposing Damages Against Individual RFRA

Defendants ...........................................

II. RFRA MUST PROVIDE A REMEDY

TO ALL WHOSE SINCERELY HELD

BELIEFS

ARE

BURDENED

GOVERNMENT ACTION ........................

(i)

TABLE OF CONTENTS—Continued

Page

III. IF RFRA’S PROTECTIONS ARE

ONLY AVAILABLE TO RELIGIOUS

INDIVIDUALS, RFRA IS UNCONSTITUTIONAL .........................................

A. RFRA Constitutes an Establishment

of Religion ............................................

B. RFRA Burdens the Free Exercise of

Religion ................................................

C. RFRA Denies the Equal Protection of

the Laws...............................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abington School Dist. v. Schempp,

374 U.S. 203 (1963) ................................... 23, 25

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ...................................

Anderson v. Creighton,

483 U.S. 635 (1987) ...................................

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ...................................

Bd. of Educ. v. Grumet,

512 U.S. 687 (1994) ................................... 23, 24

Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) ...................................

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) ...................................

Brosseau v. Haugen,

543 U.S. 194 (2004) ...................................

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 862 (2014) ..................................passim

City of Boerne v. Flores,

521 U.S. 507 (1997) ...................................

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ...................................

City of Escondido v. Emmons,

___ U.S. ___, 139 S. Ct. 500 (2019) ...........

County of Allegheny v. ACLU,

492 U.S. 573 (1989) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Cutter v. Wilkinson,

544 U.S. 709 (2005) ....................................

Dartland v. Metropolitan Dade County,

866 F.2d 1321 (11th Cir. 1989) .................

Davis v. Husain,

106 A.3d 438 (N.J. 2014) ..........................

EEOC v. R.G.,

884 F.3d 560 (6th Cir. 2018) .....................

Employment Div. v. Smith,

494 U.S. 872 (1990) ..................................passim

Engle v. Vitale,

370 U.S. 421 (1962) ...................................

Epperson v. Ark.,

393 U.S. 97 (1968) .....................................

Frazee v. Ill. Dep’t of Employment Sec.,

489 U.S. 829 (1989) ................................... 20, 25

Fulton v. City of Phila.,

922 F.3d 140 (3d. Cir. 2019) .....................

Gaines v. Wardynski,

871 F.3d 1203 (11th Cir. 2017) .................

Gillette v. United States,

401 U.S. 437 (1971) ...................................

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal,

546 U.S. 418 (2006)....................................

5, 7

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Harlow v. Fitgerald,

457 U.S. 800 (1982) ...................................

Holt v. Hobbs,

574 U.S. 352 (2015) ................................... 8, 13

Kaemmerling v. Lappin,

553 F.3d 669 (D.C. Cir. 2008) ...................

Levitan v. Ashcroft,

281 F.3d 1313 (D.C. Cir. 2002) .................

Lynch v. Donnelly,

465 U.S. 668 (1984) ...................................

Lyng v. Northwest Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) ...................................

Malley v. Briggs,

475 U.S. 335 (1986) ...................................

McDaniel v. Paty,

435 U.S. 618 (1978) ...................................

New Orleans v. Dukes,

427 U.S. 297 (1976) ................................... 27, 28

Noyola v. Texas Dep’t of Human Resources,

846 F.2d 1021 (5th Cir. 1998) ...................

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) ....................................... 28, 30

Sherbert v. Verner,

374 U.S. 398 (1963) ..................................passim

Sorrells v. United States,

287 U.S. 435 (1932) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Thomas v. Review Bd.,

450 U.S. 707 (1981) ....................... 10, 17, 20, 25

Torcaso v. Watkins,

367 U.S. 488 (1961) ................................... 25, 29

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

___ U.S. ___, 137 S. Ct. 2012 (2017) .........

United States v. Ballard,

322 U.S. 78 (1944) .....................................

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ...................................

United States v. Jin Fuey Moy,

241 U.S. 394 (1916) ...................................

United States v. Kirby,

74 U.S. 482 (1869) .....................................

United States v. Ron Pair Enters.,

489 U.S. 235 (1989) ...................................

United States v. Seeger,

380 U.S. 163 (1965) ............................. 17, 20, 21

United States v. X-Citement Video,

513 U.S. 64 (1994) .....................................

Vill. of Bensenville v. FAA,

457 F.3d 52 (D.C. Cir. 2006) .....................

Welsh v. United States,

398 U.S. 333 (1970) ................................... 21, 27

Wis. v. Yoder,

406 U.S. 205 (1972) ...................................

vii

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. amend. I ...................................passim

U.S. Const. amend. V ............................... 4, 27, 29

STATUTES

42 U.S.C. § 1983 ...........................................

Fair Housing Amendments Act of 1988,

Pub. L. 100–430, §§ 5, 6(a)–(b)(2),

102 Stat. 1619-22 (1988) ...........................

Religious Freedom Restoration Act,

42 U.S.C. § 2000bb-1, et seq.....................passim

42 U.S.C. § 2000bb-1(a) ............................

42 U.S.C. § 2000bb-1(b) ............................

42 U.S.C. § 2000bb-1(c).............................

Religious Land Use and Institutionalized

Persons Act, Pub. L. 106-274, codified as

42 U.S.C. § 2000cc, et seq. .......................... 8, 13

Military Selective Service Act, Pub. L. 92129, codified as 50 U.S.C. § 3806(j)

(previously codified as 50 App. U.S.C.

456(j)) ........................................................

Selective Service Act of 1948, Pub. L.

80-759, § 6(j), 62 Stat. 609, as amended

by the Military Selective Service Act of

1967, Pub. L. 90-40, §1(7), 81 Stat. 104 ...

Violence Against Women Reauthorization

Act of 2013, 42 U.S.C. § 13701 .................

viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Adrian Vermeule (@Vermeullarmine),

Twitter (Dec. 23, 2019, 4:19 PM),

https://twitter.com/Vermeullarmine/stat

us/1209221990327955457.........................

American Atheists, U.S. Secular Survey

(forth-coming 2020) ................................... 29, 30

Attorney General Confirmation Hearing,

Day 1 Part 3, C-SPAN (Jan. 10, 2017),

https://www.c-span.org/video/?420932-6/

attorney-general-confirmation-hearingday-1-part-3 (last visited January 2,

2020) ..........................................................

H.R. Rep. No. 103-88 (1993).........................

James Madison, Remarks on Mr.

Jefferson’s “Draught of a Constitution

for Virginia,” in 1 Letters and Other

Writings of James Madison (1865)...........

Mark 8:36 (King James) ...............................

Samantha Grossman, Woman Wins Right

to Wear Colander on Her Head in Driver’s

License Photo, TIME (Nov. 16, 2015)

https://time/com/4114369/pastafarian-col

ander-license-photo (last visited January

8, 2020) ......................................................

S. Rep. No. 103-111 (1993) ...........................

INTEREST OF AMICI CURIAE1

Amici are non-profit corporations and have been

granted 501(c)(3) status by the IRS. None has a parent

company nor have they issued stock.

American Atheists, Inc., is a national civil rights

organization that works to achieve religious equality

for all Americans by protecting what Thomas Jefferson

called the “wall of separation” between government

and religion created by the First Amendment. American

Atheists strives to promote understanding of atheists

through education, advocacy, and community-building;

works to end the stigma associated with atheism; and

fosters an environment where bigotry against our

community is rejected.

Center for Inquiry (CFI) is a non-profit organization

dedicated to promoting and defending reason, science,

and freedom of inquiry. Through education, research,

publishing, social services, and other activities, including litigation, CFI encourages evidence-based inquiry

into science, pseudoscience, medicine and health, religion, and ethics. CFI believes that the separation of

church and state is vital to the maintenance of a free

society that allows for a reasoned exchange of ideas

about public policy.

Ex-Muslims of North America (EXMNA) is a nonprofit organization that advocates acceptance of religious

dissent, secular values, and reduced discrimination

against ex-Muslims by building support communities,

All parties consented to this amicus. No counsel for a party

authored this brief in whole or in part, and no party or counsel for

a party made a monetary contribution intended to fund its

preparation or submission. No person other than amici and their

counsel made a monetary contribution to the preparation or

submission of this brief.

producing educational content, and challenging religious oppression. As former Muslims, EXMNA’s

members are all too familiar with the oppression and

loss of liberty in nations without the separation of

church and state and believe that the government

must provide equal remedies for all, irrespective of

religious belief.

Black Nonbelievers (BN) is a non-profit organization

that provides a caring, friendly, and informative community for Blacks and allies who live free of religion

and might otherwise be ostracized. Instead of accepting

dogma, BN leaders, members, and supporters determine truth and morality through reason and evidence.

SUMMARY OF THE ARGUMENT

“Hard cases make bad law.” It is essential, then,

that this Court play its constitutional role in ensuring

that a deeply sympathetic fact pattern does not result

in bad law—in the creation of a remedy where none

exists, and where the sought-after remedy cannot

constitutionally exist.

The government’s actions in this case are nothing

short of abhorrent. When undertaken by federal law

enforcement agents, such actions constitute multiple

violations of the constitutional rights of the plaintiffs.

Our core values, from religious freedom to due process

and equal protection under the law, are torn asunder

by such reprehensible actions. That behavior, if proven,

must and should be punished. Heads must roll. Rights

must be defended. But this cannot be done by the

judicial creation of a new, expansive, unconstitutional

right to recover monetary damages against individual

defendants in their personal capacities under the

Religious Freedom Restoration Act (“RFRA”). 42

U.S.C. § 2000bb-1, et seq.

No sensible or plain-language reading of RFRA

suggests the award of damages. The legislative history

of RFRA reveals the purpose was a legislative reversal

of Employment Div. v. Smith, 494 U.S. 872 (1990), and

the restoration of the standard from Sherbert v.

Verner, 374 U.S. 398 (1963), as opposed to any extension of the remedies available. Moreover, the award of

damages is contrary to the spirit of RFRA, which

provides injunctive relief for harms that cannot be

quantified. No monetary value can be placed on the

denial of a sacrament required by a person’s faith.

Quantifying these harms is not only impossible in any

objective fashion, but diminishes individuals’ core

beliefs by pretending they can be compensated by a

dollar amount.

Violations of religious freedom are fundamentally

distinct from other claims adjudicated by the courts,

but distinct does not mean superior. This Court has

found that the standard of proof required to demonstrate harm is significantly shifted for a RFRA claim.

Awarding damages for such claims would drastically

tilt the playing field, treating religious freedom as a

right separate and above all others. The threat of

personal financial liability will hang like the sword

of Damocles over individual government employees,

paralyzing them in the execution of their duties.

That fear, in turn, incentivizes them to grant religious

exemptions in all areas, not only where such exemptions are legally required but in any circumstance

where they fear a mistake would leave them open to

significant personal financial liability.

Awarding monetary damages under RFRA would be

unconstitutional. To make damages available under

RFRA to a Muslim, but exclude a former Muslim

who made exactly the same decision under exactly

the same circumstances, would unconstitutionally

favor religion over non-religion in violation of the

Establishment and Free Exercise Clauses of the First

Amendment, as well as the equal protection principles

of the Due Process Clause of the Fifth Amendment.

If federal law enforcement acted in the grotesque

way alleged by respondents, then action must be taken

to prevent these individuals suffering further harm, or

individuals suffering similar harm in the future.

Awarding damages for a RFRA claim, however, cannot

be justified under either that statute’s intent or the

Constitution of the United States.

ARGUMENT

I. DAMAGES ARE NOT AN APPROPRIATE

REMEDY FOR A RFRA VIOLATION.

A. Congress Neither Intended Nor Envisioned Damages.

It is rare to find a statute with clearer congressional

intent than RFRA. In 1990, this Court delivered its

ruling in Employment Div. v. Smith, 494 U.S. 872, 87889 (1990), holding that the Free Exercise Clause did

not mandate religious exemptions to laws of general

applicability. This decision reversed the long-standing

test for such exemptions established in Sherbert v.

Verner, 374 U.S. 398 (1963), and subsequent cases.

The response, both political and public, was immediate and largely negative. Consequently, Congress

enacted RFRA, which went unopposed in the House

and garnered only three “nay” votes in the Senate.

Congress was explicit as to its intentions with

RFRA: to provide a legislative reversal of Smith, 494

U.S. 872. While the interpretation of the Constitution

is the purview of the courts, in passing RFRA the

legislature intended to re-impose the Sherbert test

through legislation, requiring strict scrutiny of laws

that substantially burden religious exercise. As the

House Committee noted:

It is the Committee’s expectation that the

courts will look to free exercise of religion

cases decided prior to Smith for guidance in

determining whether or not religious exercise

has been burdened and the least restrictive

means have been employed in furthering a

compelling governmental interest. . . . This

bill is not a codification of any prior free

exercise decision but rather the restoration of

the legal standard that was applied in those

decisions.

H.R. Rep. No. 103-88, at 6-7 (1993) (emphasis added).

The Senate report was even more direct. “[T]he

purpose of this act is only to overturn the Supreme

Court’s decision in Smith.” S. Rep. No. 103-111, at 12

(1993).2

Federal courts applying RFRA have recognized this

clear Congressional intent. As this Court noted, “Congress

responded [to Smith] by enacting [RFRA] . . . which

adopts a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,

424 (2006) (internal citations omitted); see also Burwell

v. Hobby Lobby Stores, Inc., 573 U.S. 862, 694 (2014)

(“Congress responded to Smith by enacting RFRA.”).

There is no evidence that Congress intended to

create a new financial remedy to violations of religious

Notably, this statement was in a section entitled “Other

Areas of Law are Unaffected.”

freedom. Indeed, all available evidence demonstrates

that Congress intended to return the legal framework

to the greatest extent possible to the Sherbert test.

Even if the language of RFRA clearly created such a

financial remedy, this Court has permitted reference

to the legislative history “in the ‘rare cases [in which]

the literal application of the statute will produce a

result demonstrably at odds with the intentions of its

drafters.’ In such cases, the intention of the drafters,

rather than the strict language, controls.” United

States v. Ron Pair Enters., 489 U.S. 235, 242 (1989)

(citing Griffin v. Oceanic Contractors, Inc., 458 U.S.

564, 571 (1982)). In this case, not only is the desire

to create such a remedy clearly absent from the

legislative history, but no literal reading of the statute

provides it. In the absence of Congress explicitly

creating a financial remedy, or even suggesting a

desire to do so, this Court should not create one.

B. The Award of Damages Undermines the

Purpose of RFRA.

Creating a financial remedy under RFRA not only

usurps the legislative prerogatives of Congress, but

also runs contrary to its purpose. The United States

has always held that harms to the rights of conscience

are unique. The importance of an individual’s belief

system can be seen from the prominence given to such

freedoms in the Bill of Rights. The First Amendment

guarantees that government shall not impose religious

viewpoints upon the population, nor restrict the freedom of belief or worship. This respect for individual

moral determination, as well as the guarantee of

free speech, are the values that define the American

Constitution. No person can be free if the government

is able to dictate or suppress their core moral beliefs.

While the Constitution itself does not mandate

exemptions to laws of general applicability, see Smith,

494 U.S. at 878-89, RFRA seeks, where appropriate

and constitutionally permissible, to grant such exemptions in order to facilitate individual religious belief

and practice.3 RFRA has been interpreted by this

Court and others to address government actions that

prevent individuals from living according to their

personal religious mandates, and to relieve those

individuals of the obligations which government

actions impose.

For example, in O Centro, the Court addressed the

situation of a religious sect who took as a sacrament a

tea brewed from a hallucinogenic controlled substance. 546 U.S. at 423. The harm imposed by the

government on the adherents of this sect was the

criminalization of a central element of their religious

worship, id., a situation remarkably similar to that of

Smith, where members of a Native American church

sought to use peyote, also a controlled substance, for

sacramental purposes. 494 U.S. at 874. The remedy to

such an imposition was injunctive—the Court ruled

that the religious sect was, under RFRA, entitled to

an exemption to permit it to import and use the

hallucinogens in religious worship, despite its illegality for other purposes. O Centro, 546 U.S. at 439.

Amici maintain that RFRA’s preferential treatment of

religious beliefs alone, to the exclusion of deeply held moral and

ethical beliefs, represents a violation of the Establishment Clause

of the First Amendment. The violation is particularly acute where

such preference shifts the burden of accommodating a religious

belief onto a third party. The creation of a financial remedy under

RFRA provides new evidence of its unconstitutionality. See infra,

Part III.

In Holt v. Hobbs, 574 U.S. 352 (2015), this Court

unanimously interpreted the Religious Land Use and

Institutionalized Persons Act, Pub. L. 106-274, codified

as 42 U.S.C. § 42 U.S.C. § 2000cc et seq. (RLUIPA),

a sister statute to RFRA,4 as permitting a Muslim

prisoner to grow a beard despite security-based prison

regulations requiring prisoners to be clean shaven. As

a result, prison authorities were prevented from

enforcing the policy against Mr. Holt, permitting him

to wear the beard as a religious requirement following

his conversion to Islam.

These cases share an overarching theme: a governmental restriction of the ability of individuals to act in

accordance with the dictates of their conscience. As a

result, the government ban or requirement was held

not applicable to them. What is absent is any attempt

to monetarily define the harm done to an individual

by such governmental actions. Such a calculation is

impossible, and is not only contrary to the understanding of religious and moral beliefs protected under law,

but also both insulting and devaluing to the claims

themselves.

The Gospel according to Mark includes a muchquoted verse: “For what does it profit a man to gain

the whole world, and forfeit his soul?” Mark 8:36 (King

James). The purpose of monetary damages is to restore

an individual to the position in which they would be,

absent the wrongful action. The legal system places a

financial value on the loss of property or the breach of

a contract; it calculates the monetary award to

RLUIPA was enacted by Congress in 2000, after this Court’s

decision in City of Boerne v. Flores declared RFRA unconstitutional as applied to the states. 521 U.S. 507 (1997). In RLUIPA,

Congress sought to apply the protections of RFRA to land use

cases and those involving incarcerated individuals.

recompense an individual for harm resulting from a

defective product or an act of professional malpractice.

What it cannot do is make such a quantifiable determination regarding the harm caused by being prevented

from performing a religious requirement or from being

required to perform an act forbidden by one’s religion.

No monetary amount can restore a religious person

to the position they would have been, absent the

government action. A person’s soul, or fealty to her

conscience, cannot be valued in monetary terms.

Moreover, the judicial system is patently unqualified to make such a determination. It is not for the

courts, or the government at any level, to make theological calculations. Even if ascribing a financial value

to preventing a Muslim prisoner from wearing a beard

made sense, how can a court possibly, or constitutionally, compare such a valuation to that where a Jewish

student is denied access to kosher food, or a Christian

denied the ability to take the sacrament she believes

is mandated by her faith? To suggest such harms can

be monetized, calculated, and compared is inconsistent with the essence of religious belief.

Courts have acknowledged this in their treatment

of cases under RFRA. RFRA requires a court to

determine if there is a substantial burden on a

sincerely held religious belief, not whether that belief

is credible or correct, nor to rank the nature of the

religious harm. In Hobby Lobby, this Court made

repeated references to this nature of religious belief,

noting that it was both inappropriate and impossible

for the judicial system to pass judgment on it. E.g. 573

U.S. at 724 (“Repeatedly and in many different contexts,

we have warned that courts must not presume to

determine . . . the plausibility of a religious claim.”)

(citing Smith, 494 U.S. at 887). This Court refused to

determine whether a required action by the government actually imposed a burden on the religious

individual; it was not for the Court to decide if providing insurance which an employee might later use to

purchase a form of contraception that destroyed a

fertilized ovum was morally distinguishable from

destroying that egg. If the religious owners of the

corporation believed it was not morally distinguishable, this Court refused to second-guess them. Hobby

Lobby, 573 U.S. at 724. As this Court said:

Similarly, in these cases, the Hahns and

Greens and their companies sincerely believe

that providing the insurance coverage

demanded by the HHS regulations lies on the

forbidden side of the line, and it is not for us

to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow

function . . . in this context is to determine”

whether the line drawn reflects “an honest

conviction,” and there is no dispute that it

does.

Id. at 725 (citing Thomas v. Review Bd., 450 U.S. 707,

715 (1981)).

The purpose of RFRA is to provide injunctive relief

to religious individuals and groups to prevent the

government from burdening their free exercise of

religion. Such claims are not, and cannot be, financially compensable. Under RFRA, as interpreted by

this Court in Hobby Lobby, the degree of harm caused

to a religious adherent is determined by the adherent

herself. A court cannot determine how much a Muslim

is harmed by being compelled into activity that is

haram—only the Muslim can determine that. And

that determination, by a party to the case, cannot be

the basis of a fair and just financial remedy.

C. The Award of Damages Under RFRA is

Contrary to Public Policy.

1. Fear of Damage Awards Will

Encourage Unwarranted Religious

Exemptions to the Detriment of

Third Parties.

The creation of a damages remedy under RFRA

would have significant, negative consequences. Large

numbers of individuals are faced with determinations

of whether religious exemptions are required. These

individuals include such groups as teachers, principals, and school administrators; doctors, nurses, and

health care workers; employers and supervisors; and

court clerks and employees of the Department of Motor

Vehicles. As the reach of RFRA grows, with religious

groups claiming and courts awarding exemptions in

broader and broader areas, including challenges to civil

rights laws, so the likelihood of such workers having

to make such determinations increases.

The divisions both within the Supreme Court itself

and between federal trial and appeals courts over this

issue are clear. If judges and politicians can and do

disagree on what situations warrant religious exemptions under RFRA, then it is surely reasonable to

believe that individuals will come to a range of

differing opinions over such matters. If those individuals may be held personally financially liable for

determinations they make as to the appropriateness of

religious exemptions under RFRA, then there will be

two certain consequences.

First, individuals faced with the possibility that a

“wrong” determination could expose them to personal,

monetary damages awards erasing their savings,

retirement accounts, and even their home will seek to

avoid making such a determination. When faced with

the decision as to whether a Jewish person may wear

a kippah in a driver’s license photograph (or whether

a Pastafarian can wear a pasta strainer on their head

for such a photograph5), the desk employee at the

Department of Motor Vehicles, in order to minimize

the financial risk to herself, is incentivized to push

the determination up the chain to a supervisor. The

same incentive applies to the supervisor, who will

seek to have a manager make the determination. As

individual after individual seeks to avoid the responsibility, and accompanying financial liability, of rejecting

a requested accommodation, the entire process grinds

to a halt.

More dangerous, though, is the second impact. Such

individuals face a binary choice. They may grant the

religious exemption or refuse it. If a damages remedy

against individuals is created by this Court, then

refusal can lead to the aforementioned financial

burden on an individual if they are later judged to

have erred. The person requesting the objection may

file a lawsuit under RFRA against them. However,

if the official grants an exemption, there is no

counterbalancing personal risk. There is no lawsuit,

and no risk of damages, if an unwarranted religious

exemption is granted.

The incentive is then clear. When the alternative is

to run the risk of bankruptcy as the result of a

damages award, an official is likely to grant religious

exemptions, not only in borderline cases, but in any

Samantha Grossman, Woman Wins Right to Wear Colander

on Her Head in Driver’s License Photo, TIME (Nov. 16, 2015)

https://time/com/4114369/pastafarian-colander-license-photo (last

visited January 8, 2020).

situation where a possible doubt exists as to whether

RFRA would require such an exemption. This runs

the risk of turning claims of religious freedom into

an über right, one held above all others in the panoply

of guaranteed freedoms. The threat of a lawsuit, and

a monetary damages award, tilts the playing field

dramatically towards the provision of religious exemptions, whether they are warranted or not.

In many situations, such as the choice of headwear

for a driver’s license, the harm of a system that is

biased towards the provision of exemptions is not

immediately visible. However, the focus of recent and

upcoming cases raising RFRA claims (or claims under

RFRA’s state-level analogues) is shifting away from

such cases and toward circumstances in which the

religious accommodation sought imposes significant

burdens on third parties. See Holt, 574 U.S. at 370

(Ginsburg, J. concurring) (“Unlike the exemption this

Court permitted in Burwell v. Hobby Lobby Stores,

Inc., accommodating petitioner’s religious beliefs in

this case would not detrimentally affect others who

do not share petitioner’s beliefs.”) (internal citations

omitted); Fulton v. City of Phila., 922 F.3d 140, 164

(3d. Cir. 2019), petition for cert. filed (U.S. Jul. 22,

2019) (No. 19-123); EEOC v. R.G., 884 F.3d 560 (6th

Cir. 2018), cert. granted, 139 S. Ct. 1599 (U.S. Apr. 22,

2019) (No 18-107). Such impositions on third parties

inevitably arise when the exemptions requested are to

civil rights and anti-discrimination laws.

For example, a religious government employee may

claim a religious-based right to not having to work

with lesbian victims under the Violence Against Women

Reauthorization Act of 2013. 42 U.S.C. § 13701. The

risk of facing financial liability for denying the

employee an accommodation incentivizes a supervisor

to accommodate such demands, despite explicit nondiscrimination protections and the negative impact for

the LGBTQ individuals concerned. Similarly, a teacher

who refuses on religious grounds to educate female

students is more likely to be indulged by an administrator who fears that a refusal could expose him or

her to personal financial liability; the harm to the

students would not enter into their calculation when

it comes to personal liability. And the religious nurse

or orderly in a VA hospital demanding a religious

exemption from the requirement to receive an influenza

vaccine may be granted such a privilege without

concern for the harm to patients who are more likely

to be exposed to disease. Officials and administrators

will be placed in an impossible situation when two

requested religious accommodations conflict, creating

personal liability whichever choice is made.

2. Creation of a Damages Remedy

Under RFRA Changes the Balance

Drawn in Law.

Only in very limited circumstances can a plaintiff

be awarded damages against the federal government.

As explained supra, the determination of harm under

RFRA differs significantly from that in other situations. Where agents of the government are subjected

to damages awards, such as under the doctrine of

Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), or against the states under 42 U.S.C. § 1983,

the plaintiffs must demonstrate and prove they have

suffered harm and quantify that harm. The harms

RFRA was enacted to address were not financial but

instead unquantifiable injuries to an internal moral

and ethical code.

Permitting monetary damages against individuals

under a law which is designed to protect religious free-

dom to a significantly greater extent than required by

the Constitution, without the requirements placed upon

such awards in similar situations, risks destabilizing

the legal structure.

The plaintiffs here suffered disgracefully at the

hands of federal law enforcement. Such behavior

cannot be allowed to happen again, and the purpose of

a suit under RFRA is to rectify the religious harms

involved. A remedy for financial harms suffered should

not be shoehorned into an inappropriate law. If monetary damages are warranted, they should be awarded

under one of the established mechanisms of holding

the government liable for financial harm. To create

such a remedy from whole cloth under RFRA tilts the

legal balance unfairly in favor of remedies available

to the religious. It would allow for damages in cases

where the harmed party can tie the behavior to their

religious belief, but not in otherwise identical cases

where they could not. Our system has established

where and when the government is liable for damages;

this Court should not create a new avenue available

only to the religious.

D. Qualified Immunity Precludes Imposing

Damages Against Individual RFRA

Defendants.

Any damages remedy that might be available against

an individual defendant under RFRA would be rendered

a dead letter by the defense of qualified immunity.

Individual “government officials performing discretionary functions, generally are shielded from liability

for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitgerald, 457 U.S. 800, 818 (1982). The

plaintiff must meet this standard in order to overcome

qualified immunity. The defendant’s conduct must violate a constitutional or statutory right of the plaintiff

that was defined with sufficient clarity, at the time of

the act, for the official to be placed on notice that her

conduct violated that right. Anderson v. Creighton,

483 U.S. 635, 640 (1987).

Defining the right in question at “a high level of

generality” is not sufficient. Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011); see also City of Escondido v.

Emmons, ___ U.S. ___, 139 S. Ct. 500, 503 (2019)

(per curiam). Rather, the right must be defined with

sufficient granularity that “the officer had fair notice

that her conduct was unlawful.” Brosseau v. Haugen,

543 U.S. 194, 198 (2004). By imposing these exacting

requirements, qualified immunity “provides ample

protection to all but the plainly incompetent or those

who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986).

The defense of qualified immunity is stronger in

some areas than others, particularly where the legal

analysis focuses on fact-specific balancing tests rather

than bright-line rules. This is particularly true in the

First Amendment context. See Dartland v. Metropolitan

Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989);

Noyola v. Texas Dep’t of Human Resources, 846 F.2d

1021, 1025 (5th Cir. 1998); Gaines v. Wardynski, 871

F.3d 1203, 1210 (11th Cir. 2017). The lack of brightline standards in adjudicating RFRA claims—by virtue

of the highly individualized and context-specific nature

of the statutory right at issue—makes the defense

impossible to overcome.

The right created by RFRA is simple, but that

simplicity masks significant complexity in applying

the right to specific facts and circumstances. The

Court has avoided establishing bright-line rules.

Determining whether a particular action violates

RFRA with regard to a particular individual requires

a detailed factual analysis of several distinct points.

First, the court must determine whether the

burdened act is an exercise of a sincerely held religious

belief. To do so, the court must make factual findings

sufficient to conclude that the claimed belief is in

fact religious and is sincerely held. Hobby Lobby, 573

U.S. at 717 n.28. Constitutional considerations generally preclude the courts from delving deeply into an

individual’s assertion that a belief is part of her

religion, leaving the courts to analyze the sincerity

of the individual’s beliefs, a determination that is

fundamentally one of credibility that the courts are

well-equipped to handle. Hobby Lobby, 573 U.S. at

718; Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005);

Gillette v. United States, 401 U.S. 437, 457 (1971);

United States v. Seeger, 380 U.S. 163, 185 (1965);

United States v. Ballard, 322 U.S. 78, 87 (1944).

A second factual inquiry is then necessary to

determine whether, and to what extent, the plaintiff’s

religious exercise was burdened. Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439, 447

(1988). Once again, this requires detailed factual analyses. A slight or de minimus burden is not sufficient to

trigger the protections of RFRA. Kaemmerling v. Lappin,

553 F.3d 669, 678 (D.C. Cir. 2008); Levitan v. Ashcroft,

281 F.3d 1313, 1321 (D.C. Cir. 2002). Rather, RFRA

only guards against substantial burdens on religious

exercise. The government must place “substantial

pressure on an adherent to modify his behavior and to

violate his beliefs[.]” Thomas, 450 U.S. at 718.

Then the court must conduct another factual analysis to determine whether that substantial burden

was the result of the federal government’s action(s).

RFRA’s protections are not triggered if the burden was

imposed as the result of the intervening act of some

third party. Vill. of Bensenville v. FAA, 457 F.3d 52, 65

(D.C. Cir. 2006).

Once the court is satisfied that the plaintiff has

demonstrated that her exercise of a sincerely held

religious belief was substantially burdened by a

government action, the burden shifts to the government to show that its action was the least restrictive

means for achieving a compelling governmental interest.

42 U.S.C. § 2000bb-1(b). This, again, is a highly

fact-specific inquiry requiring the court to determine

whether alternate means were available to achieve the

same interest (if indeed the interest is a compelling

one), even taking into account the relative costs of different alternatives available to the government. Hobby

Lobby, 573 U.S. at 730. If the government is not able

to meet this burden, the plaintiff is entitled to “appropriate remedies” under RFRA. 42 U.S.C. § 2000bb-1(c).

In short, RFRA requires courts to engage in four

distinct, fact-specific analyses, not to mention the proper

application of the law as to whether the government’s

interest was compelling and not just an important or

merely legitimate government interest, when determining whether a particular individual is entitled to a

remedy under the statute. Furthermore, the highly

individualized and subjective nature of the statutory

right in question means that an official’s act directed

toward one individual may be a violation, yet be entirely

permissible if directed toward the next individual who,

by every outward indication, is identical to the first.

As a consequence of the detailed, subjective, caseby-case analysis required by RFRA, it would be

impossible for a reasonable official to be placed on

notice that her conduct in a particular situation

violated the statute at the time the act is taken.

Individual government officials cannot be expected to

engage in the sort of detailed factual investigations

and analysis, let alone the balancing of legal principles, required in order to determine whether an act

violates an individual’s right under RFRA in a given

situation. In order to ensure that they avoid liability,

government officials will feel pressure to engage in

searching inquiries into the religious beliefs of every

individual they interact with in the course of their

duties—an inquiry that is both intrusive and potentially unconstitutional in its own right. As explored

above, pressuring individual government officials to

reliably engage in this searching analysis on the fly,

or risk personal financial liability, will cause the

government to grind to a halt. Qualified immunity

exists precisely to avoid such eventualities. The highly

individualized (and intensely private) nature of religious beliefs makes it impossible to clearly establish, in

advance, an individual’s rights under RFRA.

II. RFRA MUST PROVIDE A REMEDY TO

ALL WHOSE SINCERELY HELD BELIEFS

ARE BURDENED BY GOVERNMENT

ACTION.

The government’s alleged conduct here was beyond

egregious. Extorting innocent Americans into becoming

confidential law enforcement sources is an unconscionable abuse of authority, regardless of the religious

beliefs of the aggrieved individual. Attempting to

remedy these abuses by awarding damages for a

RFRA claim, however, only serves to layer injustice

upon injustice, precluding nonreligious individuals

from being made whole after suffering identical harms

resulting from identical conduct. This unjust outcome

can be avoided by interpreting RFRA to provide a

remedy to all those whose deeply held moral, ethical,

or religious beliefs have been burdened by government

action.

“Literal interpretation of statutes at the expense of

the reason of the law and producing absurd consequences or flagrant injustice has frequently been

condemned.” Sorrells v. United States, 287 U.S. 435,

446 (1932); see also United States v. X-Citement Video,

513 U.S. 64, 69 (1994); United States v. Kirby, 74 U.S.

482, 487 (1869). Furthermore, “[a] statute must be

construed, if fairly possible, so as to avoid not only the

conclusion that it is unconstitutional but also grave

doubts upon that score.” United States v. Jin Fuey

Moy, 241 U.S. 394, 401 (1916); Almendarez-Torres v.

United States, 523 U.S. 224, 238 (1998). “The reason

of the law in such cases should prevail over its letter.”

Kirby, 74 U.S. at 487.

The plain text of RFRA protects only “a person’s

exercise of religion.” 42 U.S.C. § 2000bb-1(a). The

federal judiciary, drawing on both the text of the

statute and pre-Smith decisions of this Court, have

applied this interpretation of RFRA. See Frazee v. Ill.

Dep’t of Employment Sec., 489 U.S. 829, 833 (1989);

Thomas, 450 U.S. at 713-14; Wis. v. Yoder, 406 U.S. 205,

215 (1972); United States v. Seeger, 380 U.S. 163, 179

(1965); Sherbert, 374 U.S. at 416 (Stewart, J., concurring).

The Court has previously construed the statutory

use of the term “religion” broadly in order to avoid

unjust and unconstitutional results. When interpreting the conscientious objector provision of the Universal

Military Training and Services Act (originally enacted

as Selective Service Act of 1948, Pub. L. 80-759, § 6(j),

62 Stat. 609)(codified as 50 App. U.S.C. 456(j)), (now

the Military Selective Service Act, and reclassified as

50 U.S.C. § 3806(j) (2019)), this Court interpreted the

exemption for objectors whose “religious training and

belief” are rooted in a belief in a “Supreme Being” so as

to include individuals holding “[a] sincere and meaningful belief which occupies in the life of its possessor

a place parallel to that filled by the God of those

admittedly qualifying for the exemption.” Seeger, 380

U.S. at 176. By interpreting the statute in this way,

the Court “avoid[ed] imputing to Congress an intent to

classify different religious beliefs, exempting some and

excluding others,” id., thereby avoiding invalidating

the statute under the Free Exercise Clause. Id. at 188

(Douglas, J., concurring). Five years later, the Court

interpreted the same provision, absent the reference

to a “Supreme Being,” to allow “all those whose consciences, spurred by deeply held moral, ethical, or

religious beliefs, would give them no rest or peace if

they allowed themselves to become a part of an

instrument of war” to exempt themselves from combat

and noncombat service. Welsh v. United States, 398

U.S. 333, 344 (1970) (emphasis added).

The present case provides a stark illustration of why

the Court should interpret RFRA in a similarly broad

manner. A narrow, literal construction—one that provides RFRA’s remedies only to those whose sincerely

held beliefs are religiously motivated—creates a “flagrant injustice.” If the respondents, rather than being

believing Muslims, were instead nonreligious former

Muslims (as are many members of the amici) facing

coercive pressure to attend a particular mosque and

report their observations to law enforcement, they

would have no remedy under the current interpretation of RFRA. If subjected to the same retributive

actions by the petitioners, and suffering the same

quantifiable harms as the respondents, an ex-Muslim

would be entirely precluded from being made whole

solely because of her lack of religious belief.

The government would violate the same rights of a

former Muslim as it did the believing Muslims who

brought the litigation currently before the Court. And

yet, if the prevailing interpretation of RFRA persists,

then only the religious believer will have a mechanism

to be made whole. This manifestly unjust and unconstitutional outcome cannot have been intended by

Congress when it drafted RFRA. Therefore, if this

Court concludes that RFRA’s “appropriate remedies”

include damages, those must be available to all those

whose sincerely held moral, ethical, or religious beliefs

are significantly burdened by government action.

III. IF RFRA’S PROTECTIONS ARE ONLY

AVAILABLE TO RELIGIOUS INDIVIDUALS, RFRA IS UNCONSTITUTIONAL.

If RFRA’s “appropriate remedies” are available

only to Religious individuals and leave nonreligious

individuals, who may suffer identical harms as the

result of identical acts, with no judicial remedy merely

because they are not religious, then it is a violation of

the United States Constitution, and a particularly

Orwellian one at that. It amounts to an unconstitutional establishment of religion, infringes the free

exercise of religion, and denies nonbelievers the equal

protection of the laws.

A. RFRA Constitutes an Establishment of

Religion.

Americans, whether religious or nonreligious, engage

in practices motivated by deep and sincere beliefs.

That one person’s conscience demands that she act out

of devotion to a deity should entitle her to no greater

government protection than her neighbor who engages

in the same act out of conscientious recognition of our

shared humanity. The Establishment Clause prohibits

the government from giving the former favor or

singling out the latter for lesser treatment. “The

Establishment Clause, at the very least, prohibits

government from appearing to take a position on

questions of religious belief or from ‘making adherence

to a religion relevant in any way to a person’s standing

in the political community.’” County of Allegheny v.

ACLU, 492 U.S. 573, 593-94 (1989) (quoting Lynch v.

Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J.,

concurring)); see also Bd. of Educ. v. Grumet, 512 U.S.

687, 706-07 (1994).

[Government] may not be hostile to any

religion or to the advocacy of no-religion;

and it may not aid, foster, or promote one

religion or religious theory against another

or even against the militant opposite. The

First Amendment mandates governmental

neutrality between religion and religion, and

between religion and nonreligion.

Epperson v. Ark., 393 U.S. 97, 103-04 (1968) (emphasis

added).

If the statutory right provided by RFRA is available

only to those who are motivated by religion, it amounts

to nothing less than a declaration by the government

that religious people deserve to be made whole after

suffering certain harms, while nonreligious individuals do not. Such a declaration shatters the neutrality

the Establishment Clause demands. “[H]ostility, not

neutrality, would characterize the refusal to provide”

nonreligious individuals an equivalent mechanism to

protect the actions dictated by their conscience from

governmental burdens. Abington School Dist. v. Schempp,

374 U.S. 203, 299 (1963) (Brennan, J., concurring).

Such a holding would have dangerous and farreaching ramifications. Armed with the knowledge

that nonreligious individuals are not shielded by

RFRA’s protections, law enforcement officers like the

petitioners in this case could subject nonreligious,

former Muslims to the identical conduct complained of

in this case, but do so free of any fear of liability. Thus,

in this context, RFRA would incentivize negative

treatment of nonreligious individuals. This is one of

the very evils the Founders sought to avoid through

the Establishment Clause.

Furthermore, RFRA cannot be justified as a

religious accommodation. RFRA divides Americans

into two groups based on a fundamental question of

religious belief and singles one group out “for special

treatment, and whatever the limits of permissible

legislative accommodations may be, . . . it is clear that

neutrality as among religions must be honored.”

Grumet, 512 U.S. at 706-07. RFRA constitutes far

more than a neutral accommodation.

It would be an unconstitutional endorsement of

religion if RFRA’s remedies are held to be available

only to religious individuals. Moreover, it evinces

governmental hostility toward those who glean their

deeply held moral convictions not from ancient texts

or divine edicts but from the application of human

empathy and reason. Such a law cannot stand if the

Establishment Clause is to have any meaning.

B. RFRA Burdens the Free Exercise of

Religion.

In the deepest of ironies, RFRA violates the

fundamental principles of the Free Exercise Clause.

Nonbelievers and religious individuals benefit alike

from the constitutional right protected by the Free

Exercise Clause, which enshrines an “absolute prohibition of infringements on the ‘freedom to believe’ . . . .”

McDaniel v. Paty, 435 U.S. 618, 627 (1978). This

necessarily includes the ability to refrain from engaging in religious exercise or professing religious beliefs,

Smith, 494 U.S. at 877; Schempp, 374 U.S. at 222-23;

Engle v. Vitale, 370 U.S. 421, 430-31 (1962); Torcaso v.

Watkins, 367 U.S. 488, 492-96 (1961), even if it may

not prevent burdens on affirmative exercises of purely

secular philosophical beliefs, Frazee v. Ill. Dep’t of

Employment Sec., 489 U.S. 829, 833 (1989); Thomas,

450 U.S. 707. The effect of RFRA is to punish the

nonreligious with the privation of a statutory benefit.

Just as James Madison objected to Thomas Jefferson’s

proposal to exclude clergy from holding public office

because such a limitation would violate a “fundamental principle of liberty,” James Madison, Remarks

on Mr. Jefferson’s “Draught of a Constitution for

Virginia,” in 1 Letters and Other Writings of James

Madison 1185, 189 (1865), so too must a statute

making a judicial cause of action available only to the

religious:

Does it not violate another article of the plan

itself, which exempts religion from the cognizance of Civil power? Does it not violate justice,

by at once taking away a right and prohibiting a compensation for it? Does it not, in fine,

violate impartiality, by shutting the door against

the [nonreligious] and leaving it open for

those of every other?

Id. But RFRA does not merely run counter to the

fundamental principles held sacred by the Founders.

It also violates this Court’s long-standing application

of those principles.

RFRA regulates not just actions but also beliefs

themselves. Under RFRA, what the government may

impose on one person may not be imposed on another

because of the latter’s beliefs. This places coercive pressure on individuals to profess religious belief in order

to be relieved of a government-imposed burden. Such

coercion is the hallmark of free exercise violations.

Furthermore, in order to meet the requirements of

the Free Exercise Clause, a statute must either be a

religiously neutral law of general applicability or meet

the stringent requirements of strict scrutiny. Smith,

494 U.S. at 878-79. RFRA is emphatically not neutral

toward religion, as it expressly prefers one class of

Americans over another solely on the basis of their

religious beliefs. Because it is not neutral, it is subject

to strict scrutiny.

To survive strict scrutiny, RFRA must advance a

compelling government interest and be the least

restrictive means of doing so. It fails at both. First, the

accommodation of religion beyond the bounds required

by the Free Exercise Clause is not a compelling government interest, particularly where countervailing

constitutional requirements are implicated. Trinity

Lutheran Church of Columbia, Inc. v. Comer,

___ U.S. ___, 137 S. Ct. 2012, 2024 (2017); Bob Jones

Univ. v. United States, 461 U.S. 574, 604-05 (1983).

Second, it is not the least restrictive means of achieving the government’s interest. The protections provided

by the statute are under-inclusive, restricting the

ability of nonreligious individuals to refrain from

engaging in acts as demanded by their deeply held

moral convictions. The nonreligious individual is put

to a painful choice: abandon a course of action her

conscience demands or lie, both to the public and the

courts, by claiming that the course of action is

religiously motivated.

There is a simple and less-restrictive means readily

available to the government for achieving the goal

of RFRA. Rather than limit the statute’s protections

to “religious exercise,” the government could easily

establish a statutory framework that protects the exercise of “deeply held moral, ethical, or religious beliefs,”

Welsh, 398 U.S. at 344, thereby protecting all individuals without unconstitutionally privileging religious

belief or placing coercive pressure on individuals to

profess religious beliefs. If those protections cannot be

read into RFRA through the principles of statutory

construction, it must be recognized that, by excluding

such beliefs, the government has not utilized the least

restrictive means of achieving the interest at which it

aims.

C. RFRA Denies the Equal Protection of

the Laws.

RFRA not only violates the religion clauses of the

First Amendment but also contravenes the equal

protection principles implicit in the Due Process

Clause of the Fifth Amendment. Government acts that

utilize inherently suspect distinctions, like religion, to

draw classifications are subject to strict scrutiny.

New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

Government actions “directed at particular religious

. . . minorities” trigger this heightened standard of

review because such classifications implicate “prejudice

against discrete and insular minorities . . ., which

tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect

[them].” United States v. Carolene Products Co., 304

U.S. 144, 152 n.4 (1938). This Court has recognized

that religion, like race, nationality, and alienage, is

a suspect classification warranting strict scrutiny.

Dukes, 427 U.S. at 303 (1976).

That government discrimination along religious

lines should warrant the same searching judicial inquiry

as discrimination on the basis of race, nationality, and

alienage is well supported. Distinctions drawn on those

suspect lines warrant strict scrutiny because they

are “so seldom relevant to the achievement of any

legitimate state interest that laws grounded in such

considerations are deemed to reflect prejudice and

antipathy—a view that those in the burdened class are

not as worthy or deserving as others.” City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985),

superseded by statute on other grounds, Fair Housing

Amendments Act of 1988, Pub. L. 100–430, §§ 5, 6(a)–

(b)(2), 102 Stat. 1619-22 (1988). Classes that have

been “saddled with such disabilities, or subjected to

such a history of purposeful unequal treatment, or

relegated to such a position of political powerlessness

as to command extraordinary protection from the

majoritarian political process” bear the “traditional

indicia of suspectness” that warrant the application of

strict scrutiny. San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 28 (1973).

An individual’s particular views and beliefs regarding religion, like other suspect classifications, will

rarely, if ever, be relevant to the achievement of

any legitimate state interest. Yet atheists and other

nonreligious people have long been disadvantaged

and subjected to unequal treatment. On January 10,

2017, in response to questioning from Senator Sheldon

Whitehouse (D-RI), then-Senator Jefferson Sessions

(R-AL), who had been nominated for the position of

Attorney General of the United States, stated that

he was “not sure” whether “a secular person has just

as good a claim to understanding the truth as a person

who is religious.” Attorney General Confirmation

Hearing, Day 1 Part 3, C-SPAN (Jan. 10, 2017), https://

www.c-span.org/video/?420932-6/attorney-general-con

firmation-hearing-day-1-part-3 (last visited January

2, 2020). In 2014, the New Jersey Supreme Court

addressed a situation in which, after the conclusion of

a civil trial, a juror informed the trial judge, ex parte,

“that she was surprised that defendant had not placed

his hand on the Bible before he testified.” Davis v.

Husain, 106 A.3d 438, 441 (N.J. 2014). Until the

Supreme Court handed down its decision in Torcaso,

states were permitted to block atheists from holding

public office. 367 U.S. 488 (1961). Suspicion of atheists’

ability to hold public office remains prevalent despite

Torcaso. Harvard University constitutional law professor

Adrian Vermeule stated on December 23, 2019, that

“atheists can’t be trusted to keep an oath[.]” Adrian

Vermeule (@Vermeullarmine), Twitter (Dec. 23, 2019,

4:19 PM), https://twitter.com/Vermeullarmine/status/

1209221990327955457.

A recent survey of the nonreligious community

indicates that negative treatment is widespread, with

46.5% of respondents reporting negative experiences

in military service because of their lack of religious

belief,6 29.4% reporting negative experiences in education settings, and 11.0% reporting negative treatment

in the court system. American Atheists, U.S. Secular

Survey (forthcoming 2020). 21.7% reported negative

treatment in the employment context, and 19.1%

reported negative treatment in other interactions with

private businesses. Id. 25.4% of respondents reported

being told they are not a good person “sometimes,”

All percentages are of those survey respondents who provided

valid answers to the particular question.

“frequently,” or “always.” Id. 37.9% reported being told

they were not capable of distinguishing right from

wrong at least sometimes. Id.

RFRA utilizes religious belief as the sole factor

distinguishing those who can receive its protections

from those who cannot. In doing so, it perpetuates the

“history of purposeful unequal treatment” that has

relegated atheists and the nonreligious “to such a

position of political powerlessness as to command

extraordinary protection from the majoritarian political

process.” Rodriguez, 411 U.S. at 28. This discrimination implicates the Fifth Amendment’s implied equal

protection principles and constitutes a second, independent ground for subjecting the statute to strict

scrutiny, a standard that RFRA cannot meet, as

discussed in Part III(b) above.

CONCLUSION

For the foregoing reasons, amici respectfully request

that this Court hold that damages are not an appropriate remedy for a RFRA claim, reverse the decision of

the Second Circuit U.S. Court of Appeals, and remand

the matter with instructions to dismiss any such

claims for damages.

Respectfully submitted,

NICHOLAS J. LITTLE

CENTER FOR INQUIRY

1012 14th St. NW, Ste. 205

Washington, DC 20005

(202) 629-2403

legal@centerforinquiry.org

GEOFFREY T. BLACKWELL

Counsel of Record

AMERICAN ATHEISTS, INC.

718 7th St. NW

Washington, DC 20001

(908) 276-7300, ext. 310

legal@atheists.org

Counsel for Amici Curiae

January 13, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.