Can the Religious Freedom Restoration Act Survive TransUnion's Test for Article III Standing?

13 Pages Posted: 8 Jan 2025 Last revised: 30 Jan 2025

Date Written: July 09, 2023

Abstract

Hardly a term goes by, it seems, without the Supreme Court revisiting standing doctrine—sometimes making minor modifications and clarifications, but other times charting a new path entirely. The danger with the latter approach is that, even when guided by originalist principles, the Court might not fully appreciate where the path leads. One such chart-pathing case is TransUnion LLC v. Ramirez, where the Court held that Article III prohibited certain plaintiffs from recovering statutory damages for defendants’ violation of the Fair Credit Reporting Act. According to the Court, plaintiffs had failed to satisfy Article III’s “concrete injury” requirement because they had not “identified a close historical or common-law analogue for their asserted injury.”

In this short piece, I examine one perhaps-unanticipated consequence of the Court’s holding in TransUnion. Specifically, I attempt—and fail—to find a close historical or common-law analogue for the injury recognized in the Religious Freedom Restoration Act, a law that prohibits the federal government from infringing an individual’s free religious exercise. I begin by discussing how litigation worked at the time of the Founding. I briefly summarize TransUnion’s approach to Article III. I then apply that approach to harms based on infringement of free exercise. And I address potential responses to my conclusion that this kind of harm would not satisfy TransUnion’s approach to the concrete-injury test.

Keywords: Standing, Article III, Injury, TransUnion, Spokeo, Originalism

Suggested Citation

Steene, Adam, Can the Religious Freedom Restoration Act Survive TransUnion's Test for Article III Standing? (July 09, 2023). Available at SSRN: https://ssrn.com/abstract=5018785 or http://dx.doi.org/10.2139/ssrn.5018785

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