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.

The Potential RLUIPA Workaround

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. (Note that the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. § 2000bb, which restored the pre-Smith strict scrutiny test for free exercise violations in general, and therefore was potentially much broader in scope than the subsequently enacted RLUIPA), was struck down by the Supreme Court as applied to states and local governments. City of Boerne v. Flores, 521 U.S. 507 (1997)).

So after all of this, the question becomes whether RLUIPA, with its strict scrutiny, provides for its own (independent of section 1983) action for damages against individual state and local government officials in their individual capacity? The Supreme Court will address this question in its 2025 Term in Landor v. Louisiana Department of Corrections and Public Safety, 82 F.4th 337, 339 (5th Cir. 2023), petition for rehearing and for rehearing en banc denied, 93 F.4th 259 (5th Cir. 2024), certiorari granted, 146 S. Ct. – (2025).

The Current RLUIPA Precedent

Over a decade ago, In ruling against the plaintiff inmate’s RLUIPA individual capacity damages claim against a correctional officer who ordered the forced shearing of his dreadlock, the Seventh Circuit, per Judge Posner, said the following:

Although his [pro se] complaint is none too clear, he appears to be seeking damages against the defendant in both the latter’s official capacity and his personal capacity, and the former claim is barred by the state’s sovereign immunity, Sossamon v. Texas, 131 S. Ct. 1651 (2011), … , and the latter claim cannot be based on the Act because the Act does not create a cause of action against state employees in their personal capacity. It does authorize injunctive relief … but he’s since been released from prison, so his injunctive relief claim is moot ….

Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (citations omitted).

Thereafter, in Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012), the Third Circuit announced that it was joining the Fourth, Fifth, Seventh and Eleventh Circuits in ruling that RLUIPA does not create a damages remedy against state and local government officials in their individual capacities. RLUIPA’s “appropriate relief” language did not clearly indicate a contrary result. See also Holland v. Goord, 758 F.3d 215 (2d Cir. 2014), Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014), Tripathy v. McKoy, 103 F.4^th 106 (2^nd Cir. 2024) and Fuqua v. Raak, 2024 WL 4645493 (9^th Cir. 2024).

The Court Grants Certiorari in Landor

Now consider Landor v. Louisiana Department of Corrections and Public Safety, a Fifth Circuit decision in which the Court has granted certiorari. “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, noted below, required another result here. It reasoned that RFRA is 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.

In the Tanzin RFRA case, subsequently affirmed by the Supreme Court, the Second Circuit had ruled that RFRA permits the recovery of money damages against federal law enforcement officers sued in their individual capacities. It distinguished Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011), where the Supreme Court held that RLUIPA does not permit the recovery of money damages against a state or state officers sued in their official capacities. Tanvir v. Tanzin, 889 F.3d 72 (2d Cir. 2018), opinion amended and superseded, 894 F.3d 449 (2d Cir. 2018), aff’d, 141 S. Ct. 486, 208 L. Ed. 2d 295 (2020) (8-0; Justice Barrett did not participate). The Court reasoned that RFRA’s “appropriate relief” language included claims for money damages against federal government officials in their individual capacities.

The reasoning and ruling in Tanzin are what the plaintiff in Landor is relying on.

Comments

It is highly likely that the Supreme Court will reverse the Fifth Circuit in Landor and rule that RLUIPA violations by state and local government officials can give rise to damages against them in their individual capacities. Religion-based claims do well generally in the Court, and the statutory interpretation argument in Landor is a strong one.

Quere: if this turns out in fact to be the case, could RLUIPA violations by state and local government officials also give rise to section 1983 “laws” actions seeking damages against them in their individual capacities? After all, a decision favorable to the plaintiff in Landor would mean that RLUIPA creates enforceable rights for “laws” purposes. And is there any reason to think that Congress intended to preclude such “laws” actions based on RLUIPA violations?