Who’s accountable when religious freedom is violated?

• The U.S. Supreme Court heard oral arguments Monday in a case where a former prisoner, forcibly shaved in violation of his religious vows, seeks financial compensation from the officials who violated his rights.
• While everyone seems to agree the official’s actions are wrong, some justices seem to be struggling with questions about whether federal law only allows lawsuits against governments rather than individual officials who violate religious freedom guarantees.
• The Court, and Congress if necessary, should clarify that effective enforcement of religious freedom will be provided to those harmed by anti-religious actions.

​Is there a remedy for an egregious violation of constitutional rights? That’s a question the U.S. Supreme Court is being asked to address in the context of religious freedom. Oral arguments, held on Monday, suggest it may be a harder question than it seems.

The case involves a former prisoner, Damon Landor. As a Rastafarian, his religious beliefs include a commitment not to cut his hair. For decades he had lived this belief even while in prison, and so had long dreadlocks. The U.S. Court of Appeals for the Fifth Circuit, in another case involving a Rastafarian prisoner, specifically held that forcibly shaving a prisoner whose beliefs required allowing his hair to grow would violate federal law.

So, Landor believed his religious practice would be protected. When he moved to a new facility in Louisiana, his dreadlocks were shaved off while he was handcuffed to a chair. So, after being released from prison, he sued the prison and some of its officials and guards for violating his religious freedom.

His suit is based on a violation of a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). It provides that government officials cannot burden the religious exercise of prisoners – or of churches in the context of land use decisions –  without showing there is an overwhelming need to impose the burden, and that there is no less intrusive way to meet that need.

RLUIPA includes a provision that an individual or group whose rights under the law are violated may “obtain appropriate relief against a government.” In this case, there does not seem to be any argument that the forcible shaving was not a violation of the law. However, the lower court determined that the prison officials and guards could not be sued for financial compensation as individuals for violating the law (as opposed to being sued as representatives of the government with the government being liable).

The Supreme Court has taken the case to resolve this question.

While all of the judges who have heard the case so far seem to agree that the treatment of Landor was egregiously wrong, there are some barriers to the specific remedy he seeks. In the oral argument on Monday, a number of justices asked questions about whether prison officials were aware they could have this potential liability under the law.

A strong argument for Landor is that another federal statute, the Religious Freedom Restoration Act, which has extremely similar provisions to RLUIPA, has been interpreted to allow these types of lawsuits in which individual officials could be held personally liable for damages rather than just as agents of the government. The Supreme Court justices, to the degree their questions in oral argument are predictive, may be wondering if there are differences in the laws that might justify a different result here.

An amicus brief filed on behalf of a coalition of religious organizations points out that the question is not hypothetical. It is not just prisoners whose rights can be infringed by government officials, some of whom are acting out of hostility to a person or group’s faith. Governments can egregiously burden religious groups by denying them the ability to use their property for mosques, synagogues, churches, temples or other religious buildings. The brief argues that without the ability to deter such actions that comes from government officials being held liable for burdening religious exercise, the promise of religious freedom is diminished.

If the Supreme Court does not resolve this challenge, Congress should do so quickly.