Supreme Court hears religious freedom challenge over suing FBI agents

(CNN) — The Supreme Court returned to the controversial issue of religious freedom on Tuesday in a case concerning three Muslim men who are seeking to sue FBI special agents for damages under a federal law meant to protect religious liberty.

The dispute began seven years ago when Muhammad Tanzir, Jameel Algibhah and Naveed Shinwari — who were all born abroad but live legally in the US — said they were asked by the FBI to become informants for the government in terrorism-related investigations. The men claim they declined — citing their religious beliefs — and their reluctance to spy on their community.

They allege that they were retaliated against and put on the no-fly list, a watchlist for people who are prohibited from boarding aircraft that originate from, terminate in or pass over the United States. Even after they were removed from the list, their lawyers sought to sue the individual agents for damages, citing the federal law.

“An individual whose religious exercise has been substantially burdened by a federal official,” lawyer Ramzi Kassem of the City University of New York School of Law argued, “may sue that person in their individual capacity for damages.”

A lower court ruled in their favor, allowing the lawsuit to move forward. The Justice Department appealed the case to the Supreme Court, arguing that the Religious Freedom Restoration Act was never meant to allow government officials to be sued for damages in their individual capacities. But supporters of the men, including the Becket Fund for Religious Liberty, seek to broaden the reach of the law.

Over an hour of telephonic arguments, the justices grappled with the law, parsing the words of the statute that allows a party to obtain “appropriate relief” against the government.

Justice Neil Gorsuch, who often delves into the words of the law at issue, leaving aside what Congress might have intended, dug into parenthetical clauses, modifiers and definitional provisions. The argument, he said at one point, must hinge on the word “appropriate.”

But Justice Brett Kavanaugh said his focus was on the words that weren’t in the statute. He noted that other statutes that authorize damages against federal employees do so expressly.

“I think this would be a first or among a very small handful where damages were awarded against federal officers in their individual capacities without the statute explicitly saying so,” he said.

And Justice Elena Kagan suggested that if Congress had meant to allow lawsuits for personal damages it would have been more clear. “We haven’t interpreted any statutes with this little specificity to permit damages against federal employees personally,” she said. She suggested that Congress would have had to be really clear to allow such damages and it “hasn’t been so clear.”

Justice Samuel Alito pointed out that even if the government were to lose the case at this juncture, down the road the officers could argue that they have qualified immunity from such lawsuits.

The Justice Department argued that a decision allowing damage awards against the federal employees could chill their ability to do their job and “raise sensitive separation of powers concerns,” potentially preventing government officials from “devoting the time and effort required for the proper discharge of duties.”

“Even well-intentioned federal employees would thus be forced to navigate a minefield of liability that would be difficult to predict or avoid,” Deputy Solicitor General Edwin Kneedler said in court papers.