We should all cheer the religious freedom win in Muslim-FBI suit
(OPINION) The Christmas story is a “subversive” narrative.
“Christmas is the inbreaking of God into the world to make the world how it should be. [Christ’s incarnation] frees us to do justice.” These powerful words, spoken by Daniel Darling, Vice President of Communications for the Ethics & Religious Liberty Commission, connect the Christmas story to God’s call to use our sacred freedom - our religious freedom - to advance justice for the marginalized. Our Holy of Holies, our All in All, humbled himself to become the flesh of a helpless babe whose company was farm animals. The celebration of Christ’s birth is an embodiment of our call to steward our religious freedom to advance freedom and justice for the oppressed.
Just days ago, in the heart of Advent, the Supreme Court upheld the religious freedom of Muslim Americans whose most sacred capacities to live out their faith were deeply violated by those in power in the federal government. This Supreme Court decision should be celebrated by Christians. And the spiritual import of the season in which this ruling came down should not be lost on Christians.
Christians believe God became flesh on the darkest of days, in the humblest of places, in the heart of the Middle East, over 2,000 years ago. Christmas is not only a holiday for those who confess Christ as their Lord and Savior, it is a holy day. It’s a day when the Divine became flesh. God and sinners reconciled. Freedom in mercy mild. Freedom to do good. To uphold the freedoms of our neighbors, including those who come to very different, and even irreconcilable understandings, of who God is.
This Christmas, Christ’s incarnation can live in our hearts. But the Incarnation can also be an invitation to pursue justice in our external actions, in our civic spaces, in how we incarnate love in the public square and in how we advocate for religious freedom for our spiritual “others.”
On Dec. 10, 2020, the Supreme Court held Tanzin v. Tanvir that individuals who sue under the Religious Freedom Reformation Act (RFRA) claiming violation of their religious freedom may be able to seek financial relief. Three Muslim men Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari say they were coerced by the FBI to serve as informants. According to a press release from Becket Law, this was “an impossible task that would force them to spy on the private lives of fellow Muslims and violate a core tenet of their religious beliefs.” As punishment, the FBI put these men on the No-Fly List, a national list of people prohibited from flying due to the likelihood they could be terrorists.
The three men sued in federal court, seeking injunctive relief against the federal agents in their professional capacities and financial damages against the agents in their personal capacities. The District court initially dismissed their lawsuits based on individual capacity, ruling that RFRA does not allow financial relief. The dismissal was reversed on appeal in the Second Circuit. The Court held “that RFRA’s remedies provision encompasses money damages against Government officials.”
Following Tanvir, Algibhah and Shinwari’s suit claiming the FBI’s tactics were violating their religious freedom, the FBI removed the Muslim American men from the No-Fly List and requested their case be dismissed. Becket Law explains that it is a normal practice for government entities to reverse course: “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.” After a federal Court of Appeals found that the Muslim men could proceed with their case for financial damages, the FBI brought the case to the Supreme Court.
At this juncture, an amicus brief was filed by Becket Law. The friend of the court brief addressed the legal question of whether RFRA allows plaintiffs to bring suits seeking monetary relief against federal employees as individuals. Becket argued that claimants need the possibility of damages for RFRA’s goals to actually be realized. The spectre of damages dissuades government entities from rendering claims with merit moot simply by offering de minimus and temporary religious accommodations. The ability of claimants to sue for damages is important, according to Becket’s brief, because it: “creates an incentive for officials to take care in considering requests for religious accommodation.” In drafting and passing RFRA, Congress made RFRA actionable when a person’s religious freedom is violated through the availability of “appropriate” relief in response to the failure of government bodies to meet the burdens of RFRA.
RFRA’s purposes cannot be fully carried out without the availability of monetary damages to plaintiffs with meritorious claims. As Becket points out, access to financial relief to claimants bringing RFRA suits is important because it helps mitigate the chances that government actors will engage in the bad faith pattern of 1. burdening religious exercise, 2. temporarily stopping their illegal actions when sued and 3. attempting to “use mootness as a shield from liability.” The brief also argues that Congress could have been specific in creating an action for injunctive relief only, rather than appropriate relief, if it had wanted to limit the scope of access to remedies. The amicus brief concludes: “Damages are necessary to safeguard RFRA claimants from gamesmanship by government defendants, particularly those who act in their individual capacities to carry out egregious violations of rights.”
This case has significant import for religious freedom for individuals, and by extension, groups and communities. When government officials, in their individual capacity, violate the religious freedom of others, there must be a way for those whose rights were violated to hold these government actors responsible. While this case involves a significant amount of technical legal concepts and doctrines, it is also important that we consider the protection of religious freedom through a lens of moral imagination and culture shaping.
Religious freedom is the canvas upon which all of God’s creatures can paint their own seeking and understandings of the sacred. How can we, as Americans, expand our imaginations toward the blank page of religious freedom as we write the stories of our lives through our most sacred beliefs?
Religious freedom, although often dismissed and misunderstood, is, at once, a prerequisite and a muse for artists, visionaries, innovators, policy makers or culture shapers. The Sufi master Hafiz, in his poem “God’s Bucket” wrote: “There is a private chamber in the soul/That knows a great secret/...Indeed God/Has written a thousand promises/All over your heart/That say,/Life, life, life,/Is far too sacred to/Ever end.” Through written word, paint, clay, violin, dance and many other creative mediums, humans incarnate their religious freedom through every area of human vocation. Religious freedom is the ability for those who believe in a sacred, higher power to express that reality. It is about preserving the ability or space to seek God in everything.
In 2016, President Obama delivered a speech at the Islamic Society of Baltimore after his first visit to a U.S. mosque. President Obama focused on America’s aspirational vision, if only in principle rather than in practice, of advancing religious freedom for all people and communities of faiths: “[W]hen enshrining the freedom of religion in our Constitution and our Bill of Rights, our Founders meant what they said when they said it applied to all religions,” he said. Obama explained that over 200 years ago, followers of Islam were regularly known as Mahometans. Obama referenced the Virginia Statute for Religious Freedom, written by Thomas Jefferson, stating that Jefferson penned this piece of legislation “to protect all faiths — and I’m quoting Thomas Jefferson now — ‘the Jew and the Gentile, the Christian and the Mahometan.’”
Christians, all year long but especially in a season that marks the incarnation of our Savior, should advance religious freedom for all peoples. In all the ways they practice and express their humanity. Advocates should consider advocating for this sacred freedom. Artists should consider making art that reflects the sacred. Culture shapers should engage in cultivating the public’s imagination of religious freedom as a public good. The 8-0 Supreme Court decision in Tanzin v. Tanvir recognizes that, although consensus on religious freedom is often rare, there is hope for a vision of religious freedom redeemed.
Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.