Nahmod Law

Section 1983 and Free Exercise Claims for Damages

Violations of the Free Exercise Clause of the First Amendment, like violations of many of the provisions of the Bill of Rights, are actionable for damages under section 1983 against individual state and local government officials in their individual capacities. When such Free Exercise violations involve clear discrimination against religion, the outcomes are ordinarily favorable to the plaintiffs. When they don’t involve such discrimination, then under the leading Free Exercise Clause decision, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the outcomes are not always so clearcut. Recall that Smith, written by Justice Scalia, mandated the use of rational basis review: because there was a neutral and generally applicable criminal law prohibiting the use of certain controlled substances, the government in Smith did not really have to justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use. A rational basis was sufficient.

The Gradual Erosion of Smith

However, the Supreme Court has become increasing uncomfortable with Smith’s rational basis test in situations involving purportedly neutral and generally applicable rules regulating conduct. In particular, see Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), finding a “strong showing” that the plaintiffs, who challenged the New York governor’s executive order imposing serious restrictions on attendance at religious services in certain zones because of Covid-19, were likely to prevail. See also Tandon v. Newsom, 141 S. Ct. 1294 (2021), applying “most favored nation” treatment to religious services during the Covid-19 pandemic. Thus, Free Exercise Clause claims are increasingly receiving favorable treatment by the current Supreme Court despite Smith. Most recently, for example, in Mahmoud v. Taylor, 146 S. Ct. — (2025), the Supreme Court held that parents of public elementary school students have a Free Exercise Clause right to opt out of a school board’s introduction of “LGBTQ+ inclusive” storybooks into classroom instruction. Nevertheless, despite this increasingly favorable treatment by the Court of Free Exercise claims, success for plaintiffs is not guaranteed when the plaintiffs use section 1983 to seek damages for Free Exercise Clause violations.

A Potential RLUIPA Workaround Now Rejected in Landor v. Dept. of Corrections

But there are two kinds of religion cases in which rational basis clearly does not apply: cases involving religious claims brought by owners of property challenging state and local government land use decisions, and prison inmates challenging state and local government conditions of confinement that allegedly infringe on their religious beliefs and behavior. The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. § 2000cc, explicitly applies strict scrutiny to certain land use and prison decisions affecting religion.

In light of this, the question was whether RLUIPA, with its strict scrutiny, provided for its own (independent of section 1983) action for damages against individual state and local government officials in their individual capacity. The Supreme Court, to my surprise, answered this question in the negative in Landor v. Louisiana Department of Corrections and Public Safety, 147 S. Ct. — (2026), aff’g, 82 F.4th 337, 339 (5th Cir. 2023).

The Landor Decisions in the Fifth Circuit and in the Supreme Court

Landor v. Louisiana Department of Corrections and Public Safety involved a prison haircut administered by prison officers to the plaintiff Rastafarian in clear violation of RLUIPA. The Fifth Circuit said: “The question presented [in the petition to the Fifth Circuit] is whether … [RLUIPA] provides for money damages against officials sued in their individual capacities. Because we’ve already answered that question in the negative, we AFFIRM.” The Fifth Circuit rejected the former state prisoner’s argument that the Supreme Court’s RFRA decision in Tanzin v. Tanvir, 141 S. Ct. 486 (2020), holding that RFRA violations are actionable against federal officials sued for damages in their individual capacities, required a different result here: RFRA was a different federal statute that was enacted under section 5 of the Fourteenth Amendment, unlike RLUIPA that was enacted under the Spending and Commerce Clauses. Thereafter, the Fifth Circuit denied a petition for rehearing and for rehearing en banc, with eleven voting against rehearing and six voting in favor.

The Supreme Court granted certiorari and affirmed in an opinion by Justice Gorsuch. The Court ruled that the plaintiff could not sue the defendant prison officers in their individual capacities because they had not entered into any voluntary and knowing agreement with the federal government to answer private suits under RLUIPA, as required by the Spending Clause. “Under the Spending Clause, Congress lacks regulatory authority to impose liability on [the officers] directly and must depend instead on consent.” The Court rejected the plaintiff’s various arguments, including one based on the Necessary and Proper Clause, that the lack of the individual prison officers’ voluntary and knowing consent did not matter. Thus, according to the majority, RLUIPA’s provision for “appropriate relief” against persons acting under color of state law authorized only injunctive relief.

The Dissenters in Landor

Justice Jackson, joined by Justices Sotomayor and Kagan, dissented. They maintained that the majority erred in “adopt[ing] the peculiar position that Congress is powerless to create, and a State is powerless to accept, the natural next step [in accommodating ‘RLUIPA’s substantive accommodating religious freedom’]: a damages remedy against officials who violate that directive.” Justice Jackson criticized this “severance of rights and remedies [as] a slight of hand [that] comes by way of the majority’s full-throated endorsement of a contract analogy even though what secures the rights at issue is not a contract but a law.” Moreover, the Court’s decision in Tanzin v. Tanvir, dealing with RFRA’s “materially identical” language, controlled: its reasoning applied with even more force to RLUIPA. And the differences in the sources of Congressional power for RFRA and RLUIPA should make no difference.

Comments

I must admit I am surprised by the result in Landor. Very seldom do plaintiffs making religion-based claims these days lose in the Supreme Court. I also do not find persuasive the reasoning of the majority insofar as it used a contract analogy mandated (in its view) by the Supremacy Clause. And so far as I recall of the broad scope of the Necessary and Proper Clause power conferred on Congress, this constituted another basis for authorizing individual capacity damages actions under RLUIPA.

Finally, I am going out on a limb now but I think that Landor indicates that the Supreme Court will very soon (in the 2026 Term?) revisit Smith, as several Justices have suggested, and finally overrule it. If I am correct, then plaintiffs like the Landor plaintiff will be able to use section 1983, the Free Exercise Clause and strict scrutiny to challenge alleged religious discrimination.