Qualified Immunity and Religious Liberty
40 Pages Posted: 6 Jan 2021
Date Written: December 10, 2020
Some illegal burdens on religious liberty are compensable only by damages. And the Religious Freedom Restoration Act was enacted in direct response to these cases. In Tanzin v. Tanvir, the Supreme Court recently decided that RFRA permits damages suits against government officials in their individual capacities. But the Supreme Court assumed that these officials would still be able to assert qualified immunity. Plaintiffs’ ability to recover under RFRA now turns on their ability to point to controlling law clearly establishing their religious liberty rights.
A growing body of recent scholarship is sharply critical of the state of qualified immunity doctrine, especially in the wake of the 2020 killing of George Floyd. Academics question the historicity of the doctrine’s claims about its common law foundations. Others attack its policy justifications. In particular, the Court’s requirement that plaintiffs point to “clearly established law” before they can overcome qualified immunity has been attacked as unjustifiable and disconnected from the animating justifications of qualified immunity. But the doctrine has defenders, too.
This Note aims to make two contributions to the literature. First, it approaches qualified immunity from a different angle than prior scholarship, which has tended to focus, understandably, on police use of force. But religious liberty cases raise unique concerns. This Note argues that application of the “clearly established law” test in religious liberty cases is both in deep tension with the Establishment Clause principle of denominational neutrality and unfaithful to the Religious Freedom Restoration Act. Second, it examines the consequences of the Court’s decision in Tanvir and demonstrates that the decision is unlikely to have any material impact without reforms to qualified immunity, given the way lower courts have tended to apply the doctrine in religious liberty cases.
Keywords: qualified immunity, religious liberty, Supreme Court, Tanzin v. Tanvir, civil rights, RFRA, Religious Freedom Restoration Act, remedies, damages, liability
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