S7, Ep. 05: A religious freedom case flying under the radar: SCOTUS hears Landor v. Louisiana Dept. of Corrections

One religious freedom case at the Supreme Court isn’t getting the sort of attention as others, despite how it’s uniting groups that often disagree. So, why did the justices sound so skeptical in the courtroom? Amanda and Holly review this week’s oral arguments in Landor v. Louisiana Department of Corrections, which involves the remedy available to a man whose religious freedom rights were violated when he was in prison. The violation isn’t in question, so why is the remedy? Amanda and Holly review the details in this case, play audio from key moments in the courtroom, and discuss the statute that protects prisoners’ religious freedom rights: The Religious Land Use and Institutionalized Persons Act of 2000.  

SHOW NOTES

Segment 1 (starting at 00:35): RLUIPA, RFRA, and this case

Amanda and Holly previewed the Landor case earlier this season – watch their conversation on BJC’s YouTube channel.   

BJC joined a diverse group of organizations on a friend-of-the-court brief in this case on the side of Mr. Landor – click this link to read the brief and see the groups who found common ground.  

RLUIPA is the acronym for the Religious Land Use and Institutionalized Persons Act, passed by Congress in the year 2000. The acronym is often pronounced “Re-loop-ah.” RFRA is the acronym for the Religious Freedom Restoration Act of 1993, pronounced “Riff-rah.”

For more on the 2020 decision in Tanzin v. Tanvir, read this article on our website: Supreme Court rules RFRA allows monetary damages against federal officials 

 

Segment 2 (starting at 11:05): What happened in the courtroom? Arguments on behalf of Mr. Landor

The Supreme Court heard Landor v. Louisiana Department of Corrections on Monday, November 10. Visit the Supreme Court’s website to read a transcript or hear the audio from the courtroom. 

We played four clips from oral arguments in this segment. 

• Zack Tripp’s opening statement, representing Mr. Landor (from 00:15-2:02 in the audio of the arguments)
• Exchange between Justice Samuel Alito and Zack Tripp (from 20:00-21:25 in the oral arguments)
• Exchange between Justice Sonia Sotomayor and Zack Tripp (from 23:35-25:56 in the oral arguments)
• Exchange between Justice Elena Kagan and Libby A. Baird, assistant to the solicitor general (from 1:06:38-1:07:38 in the oral argument)

 

Segment 3 (starting at 31:31): What did the state of Louisiana argue?

We played one clip from the oral argument during this segment:

• Exchange between Justice Elena Kagan and Ben Aguiñaga, the solicitor general of Louisiana (from 1:38:33-1:40:26)

Read more about the arguments in this article by Amy Howe for SCOTUSblog: Court appears skeptical of prison inmate’s religious liberty claim

Video of our episodes are now on YouTube! Click here for the season 7 playlist. 

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Watch the video of this podcast below:

Transcript: Season 7, Episode 5: A religious freedom case flying under the radar: SCOTUS hears Lander v. Louisiana Dept. of Corrections (some portions of this transcript have been edited for clarity)

JUSTICE KAGAN: (audio clip) When you just said, Ms. Baird, “groundbreaking,” could you hum a few more bars on that. I mean, groundbreaking, how? Groundbreaking, what would happen, what would follow?

 

Segment 1: RLUIPA, RFRA, and this case (starting at 00:35)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler.

HOLLY: And I’m Holly Hollman. It’s good to be with you, Amanda.

AMANDA: It is. We are recording this on Wednesday, November 12, and eagerly awaiting a vote in the U.S. House of Representatives. They are back to work for the first time in almost two months. Hard to believe.

HOLLY: Traffic picked up a bit today.

AMANDA: Yeah. And, you know, so many mixed emotions, but ending a shutdown and getting benefits back to the people who need them most and getting paychecks back to federal workers who have been working without pay for so long. These are good outcomes to what’s happening, and I know especially for people working in the D.C. area but also across the country, that we are ready to get back to a more normalcy, although, again, nothing is normal right now, Holly.

HOLLY: That’s right. But that is, I think, a step in the right direction, and as you know, it will help many, many people.

So today on Respecting Religion, we’re going to review the Supreme Court’s oral arguments earlier this week in a religious liberty case that involves a federal statute designed to protect the religious freedom rights of prisoners. Yes, you heard that right.

Religious freedom is such an important aspect of our country’s legal tradition that when the U.S. Supreme Court failed to find it sufficiently protected by the First Amendment in a case, Congress passed a law. They passed the Religious Freedom Restoration Act and then later one aimed particularly at protecting individuals in government custody, including prisoners.

And this week, the U.S. Supreme Court heard arguments about that one such law, the Religious Land Use and Institutionalized Persons Act of 2000, and particularly what remedies are available when that law is violated.

AMANDA: That’s right, Holly. We gave a short preview of this case earlier in this season of Respecting Religion, in episode 1, and today we wanted to review what we heard at oral arguments this week in the case of Landor v. Louisiana Department of Corrections.

The case has not received the kind of attention that religion cases often do — and also as much attention as many other cases on the Court’s docket this year. And, you know, as we’ve pointed out in the past, this is not one that is a divisive case among the groups that typically engage in religious freedom advocacy in the courts.

But it turns out, Holly, that that doesn’t mean it was an easy for the nine justices on the U.S. Supreme Court. So let’s remind our listeners first a little bit about what this case is about.

HOLLY: Yeah. The Landor case, Landor v. Louisiana Department of Corrections, is about what remedies are available under that federal statute that protects religious freedom — the Religious Land Use and Institutionalized Persons Act — what remedies are available when there is a violation.

It’s an appeal from lower court rulings that found that although a former prisoner in Louisiana, Mr. Damon Landor, had proven statutory violation — the evidence was kind of undisputed, really based on horrible treatment — the court below held that he was not entitled to the relief that he sought, and that was money damages against the individuals who did this to him.

And the Court when it granted certiorari back in June said this: “Congress has enacted two sister statutes to protect religious exercise, the Religious Freedom Restoration Act of 1993” — RFRA, as we know — “and the Religious Land Use and Institutionalized Persons Act of 2000” — RLUIPA.

And in Tanzin v. Tanvir, a case the Court decided in 2020, the Court held that an individual may sue a government official in his individual capacity for damages for violations of RFRA. Well, RLUIPA has the same kind of language. The relevant language is identical. So the question presented in the Landor case is whether an individual may sue a government official in his individual capacity for damages for violation of RLUIPA.

Under the statute, people incarcerated in state prisons, state prisons receiving federal funding, can bring a claim to defend their religious exercise rights and, quote, “obtain appropriate relief against the government,” close quote. So that’s the statutory language in both statutes.

And Mr. Landor, represented by private counsel, and we, as a friend of the Court, argued that that language clearly authorized damages against the officials in their individual capacities. You know, as I said, the Court has already held that that language provides individual damages in the RFRA context, and we say that the same result is required here.

Why is this case so important to us? Well, as friends of BJC know, we supported this same position in that earlier 2020 case. As we say in our statement of interest in an amicus brief that we filed, BJC — this organization, Amanda, that we work for that’s been around long before us — we have vigorously supported both the free exercise of religion and freedom from religious establishments for more than eight decades.

BJC chaired the Coalition for the Free Exercise of Religion which specifically urged Congress to pass RFRA and RLUIPA, and we’ve continued to defend the constitutionality and applicability of statutes in numerous cases before the courts. And so we were really glad to join an amicus brief in this case in support of Mr. Landor.

AMANDA: And we will link to the brief which really has a very broad coalition of groups that support religious freedom but often are on opposing sides when those cases come to the Court. And so we were really pleased to be part of this broad coalition, a coalition that mirrored in many ways, maybe not these same exact groups, but the breadth of the coalition that helped pass the original Religious Freedom Restoration Act and RLUIPA in 1993 and 2000 respectively.

And I think in many points, Holly, we’ve talked about how that broad coalition has really diverged in many ways in the past 25 years, and so it was good to come back together on this brief in support of Mr. Landor’s case and particularly his right to have a suit for money damages from the state prison officials who violated his constitutional rights.

HOLLY: Yeah. It’s perhaps not surprising that the coalition would splinter as the law develops and is applied in different ways, because, you know, people have a lot of different interests and opinions about religious claims. But at the heart, the coalition was together in saying, we need this protection for everyone. And the statutes should be written in a way that everyone has the chance — right? — the opportunity to bring a claim.

And that’s really what’s so important about that coalition and that this kind of effort could come back together for this, because that’s what this case is about. What does the statute provide? How should it be interpreted, so that it is fair and does the work that it’s supposed to do? And in this case, there was no question about the particular practice or issue at the heart of the case.

As we’ll talk about the facts, they are — you know, that was not in question, but simply, how does then the person whose rights have been violated then get relief? For us at BJC, the relationship between these two federal statutes is a big part of this case. It was a big part of the brief that we’re on. We just want to make sure that the statute is interpreted to do what it’s intended to do.

And in this case, the particular relief sought is necessary. Mr. Landor could not seek prospective relief based on the violations that happened to him, the way he was treated. That means he can’t, you know, stop this — he can’t stop some practice that’s ongoing. His claim was moot, because his sentence ended shortly after what happened to him. He was released, and really his sole chance for effective relief was to seek damages from the offending officials in their individual capacities.

AMANDA: And just a very brief review of what happened to Mr. Landor here, and we’re going to get into playing some clips from the argument shortly. But he had been serving a sentence. He had been in a couple of different facilities when he was transferred to the particular facility and prison in question here.

He as a devout Rastafarian who wears dreadlocks as a part of practicing his faith, he was prepared. He knew that he had a right under RLUIPA to have his hair in these dreadlocks, and he brought — and, again, this is the incredible piece to me. He actually brought a copy of the opinion showing the new officials, you know, not taking for granted that they would know the law, but brought to make sure that they would know it.

And even after showing that he had a right to it, they violently not only threw the copy of the court decision in the trash but then shaved his head bald, in violation of his rights. And so the relief here — the question again is not whether his rights were violated. The relief matters, the relief as a deterrent effect for other officials who might be in a similar position and also just to be sure that his rights can’t be continually violated from being transferred from prison to prison.

 

 

Segment 2: What happened in the courtroom? Arguments on behalf of Mr. Landor (starting at 11:05)

AMANDA: Holly, you were actually at the Court this week to hear oral arguments in this case. I listened in on the livestream from the Court from my desk in Dallas and was very interested. And I think my first impression was just how into and engaged in the argument these justices were and how there were pretty clear divisions between them, almost from the very beginning, that I could tell very early on that this was not going to be an easy case for the Court and particularly some pretty aggressive and incisive questioning from justices, particularly of the attorney who was representing Mr. Landor.

So what were some of your impressions from being inside in person in the Court?

HOLLY: Yeah. Well, I always like to, you know, get in the courtroom if I can. Our offices are close to the Court, and I can sit with the Supreme Court bar members, and you can pick up on some of the feel for the case and the justices being there.

This was a little different. It wasn’t super crowded as far as, you know, long lines getting into the courtroom, although it was full, so I think that’s just reflective of there not being a high degree of public interest. But it was still lively.

I was sitting in the lawyer section, this time on the right-hand side, closest to where Justice Jackson sits, and I was about on the third row, right behind the SG and a team of lawyers from that office who were there supporting the young attorney, Libby Baird, from that office, argued alongside the petitioner’s counsel, and I was beside where the guests of the justices are, and there were only about a half dozen or so there.

And, you know, going in, I was just very interested in and hopeful for all the — you know, for Mr. Landor and with all the support he had of the many amicus briefs filed on his side. And I was really just struck how all of the justices were tuned in and seemed to be really kind of struggling, thinking through this case, animated, not in a — well, only a couple of them a couple times did feel kind of hostile, but generally just highly engaged.

I think it was a really well-argued case for Petitioner Landor. We had the private counsel Zack Tripp and from the SG’s office Libby Baird, and then for Louisiana, Attorney General’s Office Benjamin Aguiñaga. It was much longer than I thought it would be, and just from the outset, I was struck at how different the understandings were about what is necessary in order to provide the remedy that was being sought in this case.

You know, as usual, the Court’s looking at the text of the statute, and there was a lot of debate about is the text — you know, is it valid; is it enough; what’s required to have the kind of remedy that Mr. Landor was seeking?

AMANDA: And, you know, I was pretty surprised at how controversial it was, because as we’ve noted, in the Tanzin case from just five years ago, the justices did uphold the availability of monetary damages in the context of Religious Freedom Restoration Act and in the context of federal prisons. And so what is different here is it is a state prison case and it is under particularly the authority of RLUIPA.

And so this is where it gets a little more technical on the statutory side, that there was a lot of conversation at the argument about the Spending Clause power of Congress. And just a quick, you know, Government 101 review of the Constitution: Congress has limited powers, and they can only enact statutes under limited authority, and one of those authorities is under the Spending Clause. Basically when Congress spends money, they can attach certain requirements to that spending to the states.

And in this case, the link is the federal funding that might go to state prisons, and that with that funding comes certain requirements, in this case, requirements to abide by the statute, RLUIPA. And so very early on, we saw that this question of what does the Spending Clause allow and what does it require in terms of notice, that seemed to be a very central argument that was going on in the courtroom.

HOLLY: So with that, let’s play the opening clip from Petitioner’s side, again Zack Tripp representing Mr. Landor.

MR. TRIPP: It is undisputed that my client has alleged an assault that is just brazenly illegal. He was at Respondent’s mercy in federally funded custody when he handed them a copy of controlling precedent, holding that RLUIPA protected his right to keep his hair long. They threw it away, handcuffed him to a chair, and shaved him bald. It is the poster child for a RLUIPA violation, and the law provides a damages remedy.

 

This is spending legislation, so I want to go right to that and make two points about clarity and constitutionality. So first on clarity, the whole point of this law is to restore pre-Smith rights and remedies. Damages were available before Smith. They’re available under RFRA, and RLUIPA uses identical language. They’re like twins separated at birth. They clearly mean the same thing.

 

The individual capacity action is especially clear. On the fact of the statute, it expressly authorizes suit against an official or any other person acting under color of state law. That obviously means individual capacity. And then once you see there’s an individual capacity action, the rest of it falls into line, because the whole point of individual capacity is to have damages. Damages are presumptively available against a non-sovereign, and without damages, officials can literally treat the law like garbage.

 

On constitutionality, it is undisputed. Respondents admit they must comply with RLUIPA within the scope of their work as officers in a federally funded state prison. And this Court has already held in Salinas that officers in a federally funded state prison can be held individually liable for misconduct that threatens the integrity or proper operation of the program. And that describes this case to a T.

 

So RLUIPA’s clear. It’s constitutional. And we’re asking the Court to reverse. I welcome the Court’s questions.

AMANDA: So right after that statement, as has typically been the case over the last several years, Justice Thomas asked the first question, and he immediately questioned, where was the support for these monetary damages of these state officials in Spending Clause legislation. And I think Mr. Tripp very wisely, knowing this Court’s interest in founding era history, said it goes all the way back to the founding era. And Justice Thomas really went further and questioned how his argument squares with a lot of current Supreme Court doctrine.

Basically how can you get from the Spending Clause to these damages sought, and whether the cases that Mr. Landor’s attorneys had cited fit these facts to really bind these third parties, the third parties being the officials that are actually working in the prisons? And that seemed to be — again, just set the tone for the rest of the argument.

HOLLY: Yeah. It’s even interesting to use that language, “third parties,” because in some ways, we’re arguing they’re not a third party, that the attachment is, you know, the federal government to the state, and as I think came up one time during the argument, the state prisons can only act through their officials, so that, you know, they should be bound by the statute.

But that is where the Court spent a lot of time, just saying, Can Congress bind the state? I mean, they can. And does binding the state to follow RLUIPA include binding these employees? And what did they know, and what did they consent to? And that took up quite a bit of the argument.

AMANDA: So, in addition, we had then Justice Alito coming in very early on to try to get a little bit better context of what happened here, and so we’ll play this exchange between Justice Alito and Mr. Landor’s attorney now.

JUSTICE ALITO: And just out of curiosity, did this prison shave the heads of all of the prisoners?

 

MR. TRIPP: As I understand it, yes. That was the rule.

 

JUSTICE ALITO: They shaved the heads. They didn’t allow any type of — even a short haircut

 

MR. TRIPP: I guess I can’t speak to the length, but as I understand it, the rule across the board was everybody who comes in gets their hair cut. And I think it’s really the paradigmatic example of the kind of inflexible and unyielding rule that Congress in enacting this statute was trying to get states to stop if they wanted to accept federal funds, that they needed to accommodate religious liberty.

 

JUSTICE ALITO: If the language of RLUIPA was not clear enough to abrogate sovereign immunity in Sossamon, why is it clear enough to satisfy the Spending Clause?

 

MR. TRIPP: I think it’s really two answers. The first is, as Tanzin explained and this Court has said many times, you always understand text in context. And the context of what’s appropriate in a suit against a sovereign is very different than the context of what’s available against an individual. This Court said this in Sossamon. It also said it in Tanzin. The tradition as to a sovereign, of course, is you don’t get damages, but as to an individual, this is a tradition that runs all the way back to the founding. I mean, and damages have always been available in that context. And so I think the context is probably the clearest answer.

HOLLY: That was an interesting part of the argument and one of the few moments where, you know, the Court really showed concerns about the injustice, despite what they might find in this case as a limit to the statute’s remedy provisions. I think it was pretty stark to note that and to know that in prisons now it is not expected that the state would have such an interest in, you know, just routinely shaving heads like that.

A later time in the argument that I also thought picked up on that same point — and it’s good to hear the justices being concerned about what happened in this case — was when Justice Barrett wanted to know kind of what happened that underscored the severity of the issue. You know, even if the monetary damages are not available, if the Court should find that, she wanted to know what happened. Did the state take responsibility, as it should? And the AG’s representative said — you know, he kind of was avoiding saying too much but said, The warden is no longer there, so —

As we noted, though, mostly this was an intense argument about the text of the statute and the context of congressional authority. And I found that Justice Sotomayor was particularly helpful, really trying to clarify the distinctions between what kind of seemed the two sides of the Court were getting to. And she, really on a couple of occasions, really tried to clarify the issues. So let’s play one clip about that.

JUSTICE SOTOMAYOR: I see the issues here on two levels. The first is: Is it clear that an individual is bound by the statute? Is there an express cause of action? And that’s clear. It says anyone can bring a suit against a government official or someone acting under color of state law. Correct?

MR. TRIPP: Correct.

 

JUSTICE SOTOMAYOR: So the second step is: Is it clear that the cause of action includes money damages? That’s the next step of the analysis.

MR. TRIPP: Correct.

JUSTICE SOTOMAYOR: Right? And your argument, I believe, is that Tanzin says that appropriate relief against individuals always includes damages. So does Franklin and a long list of our jurisprudence. Correct?

MR. TRIPP: That’s correct. That’s the traditional rule is that damages are available unless Congress says otherwise.

JUSTICE SOTOMAYOR: So those two things are clear. So in terms of contract principles or causes of action, this is clear. Now, what my colleagues — and I think that was Justice Gorsuch’s question, slightly different, which is: Do we need to create special rules under the Spending Clause, because generally speaking, if you’re a prison official, you know you’re working in a prison and you’re bound by law to pay damages if you violate the law. Do you get an out because what? I think the consent question means what? Or notice and consent means what?

And I don’t know, meaning we’re all presumed to know the law. When we take our jobs, the correction officers know he can’t accept money. Citizens know they can’t pay the money. We don’t expect them to consent to that Spending Clause condition, do we?

MR. TRIPP: I think one of the things that makes this case so much easier is that you have the consent of the person to become an officer in —

JUSTICE SOTOMAYOR: I agree, but I don’t know —

MR. TRIPP: — a public funded program.

JUSTICE SOTOMAYOR: — why you need that. I think that’s what you were saying, which is we never think of needing some express consent to say, I’m bound by the law.

AMANDA: I really appreciated Justice Sotomayor here to bring some common sense into the argument, to, you know, again kind of clearly lay out what we know, what is clear on the statute, and then at the end of the day to say, you know, when people come to work, yes, we are bound by the law, as far as how much notice do you really need in order to know that when you go to work, that you need to be bound by laws, including laws that apply in the prison context, like RLUIPA, and that beyond this idea of needing to understand what damages might be, that we don’t expect or require people to — just to follow the law when they think they might be personally liable in some way, that we expect people to follow the law in their jobs.

HOLLY: Yeah. That’s right. And then Justice Gorsuch kept pushing back, just saying, Is it enough; did the individual officials know how they were bound? Did they have the right notice, and could they understand, and, you know, suggesting that they did not. And he emphasized that the circuits below had been — have been deciding these cases against Mr. Landor’s position.

At one point he was going back and forth — Justice Gorsuch was going back and forth with Mr. Tripp, saying, I want to be clear; Congress imposed the condition on the person. That’s what Mr. Tripp was saying. It’s on the person. The state admits that, admits that there is liability at issue. And the remedy follows.

And he kept on. At one point he said, And I’m not going to back down on that, to which Justice Gorsuch said, And I wouldn’t expect you to, Mr. Tripp. And there was that moment of levity in the courtroom there, where he kind of had this respect for just, you know, hard positions going back and forth on the Court.

AMANDA: Yeah. A number of the justices made similar arguments that basically said, Look, all the lower courts have ruled against you; why shouldn’t we? And that seemed little odd to me, because isn’t it the job of the Supreme Court, when it’s necessary, to overrule or overturn what lower courts have done?

And so that seemed like a bit of an odd posture for the Supreme Court to be saying, We’re going to follow what lower courts have done, as opposed to saying, you know, Well, in light of what we ruled just five years ago in this other case, we want to make clear to all the lower courts that, no, they’ve been getting the law wrong and this is actually what the law is.

So that felt a little bit to me like a little too easy way out for the Court to rely — that they shouldn’t overly rely on what lower courts have done when it’s actually their job to tell the country what the law is.

HOLLY: Yeah. I think they’re trying to slice this very precisely, work out what are all the implications, how does this relate to their Spending Clause jurisprudence as a whole. But I agree. It was not as easy as we certainly would like it to be in following what the Court had held before in the RFRA context.

One kind of interesting issue on that point was that the SG’s office supported Mr. Landor here and in that earlier RFRA case had taken a different position, and so there was a little bit of discussion about that. But the young attorney from the Solicitor General’s Office, Libby Baird, made her argument, said, We heard what the Court said in Tanzin, and we followed that, and we’re moving on.

She just kind of didn’t let it break stride and argued very aggressively, very rapidly, I would say. She was quite an impressive advocate who spoke very quickly. And, there was no daylight, she said, really between the position of the U.S. government, represented by the Solicitor General’s Office, and Mr. Landor.

AMANDA: Yeah. I also was impressed with her argument, and I thought part of arguing before the Supreme Court, it’s not just a rhetorical exercise and you don’t just need to know the laws and be able to answer the questions, but you’re also — I think one of the strategies is trying to make this feel like an easy case for the justices and an easy case on your side.

And I thought in this particular exchange with Justice Kagan that Ms. Baird did an excellent job of making her side and her argument seem like the most reasonable one being argued in the court that day.

JUSTICE KAGAN: When you just said, Ms. Baird, “groundbreaking,” could you hum a few more bars on that. I mean, groundbreaking how? Groundbreaking, what would happen, what would follow?

 

MS. BAIRD: Sure. Well, I mean, I think, Petitioner’s brief laid this out nicely, but there’s sort of a long history of Congress being able to reach outside of the strict privity between the federal government and an entity that receives funds. I think all of that could be called into question. I think we’ve cited some sort of on-point statutes in our brief where employees or agents can be held liable. That’s the Federal Nursing Home Reform Act, EMTALA, Title X.

 

And then, I think, if the Court accepts Respondent’s arguments on the constitutional issues, I think that could call into question Section 666, the bribery statutes, and Sabri. I think that this case is such an easy case, because this case does not even approach the outer limit that this Court has recognized in Sabri as permissible.

 

And I think all the Court has to do — the Court does not need to extend Salinas and Sabri. I think all it has to do is cite those cases, say that no one has asked us to overrule them.

AMANDA: So, again, Ms. Baird, arguing for the Solicitor General’s Office of the United States, did a really good job, I thought, of making this case feel very clear. And, of course, we could expect that the advocate on the other side would try to do the same thing.

 

 

Segment 3: What did the state of Louisiana argue? (starting at 31:31)

HOLLY: So moving from the SG, the Solicitor General of the U.S., position to the Attorney General’s Office of the State of Louisiana, representing the State of Louisiana was General Aguiñaga. And, you know, as expected, he really hammered on the position of the lower courts, about how they had found against this position. He argued that the Supreme Court should just follow those lower courts.

And he really had to work very hard to distinguish a case that Mr. Landor had relied on, a case where the Court had ordered damages from a so-called third party, an individual, to protect the federal government’s interests. And in that case, it was about preventing fraud. It allowed recovery of money from an individual, you know, not from the state itself but from an individual, so that’s the analogy for Mr. Landor.

But Louisiana is, you know, questioning — really kept questioning whether Congress could use its spending authority to create what he called a substantive right that runs against an individual person in his individual capacity. And that’s, you know, really where a lot of the argument was.

And as we’d expect, the justices want to push and see like where do things go. If the Court goes this way or that way, what are the implications? So let’s play a clip of an exchange between General Aguiñaga and Justice Kagan.

 

JUSTICE KAGAN: I mean, Spending Clause legislation, it matters because that imposes a bar of clarity that usually is not imposed. So when we read the statute, we have to be cognizant of the fact that it was passed pursuant to the Spending Clause, and we have to say, is this clear enough. But that doesn’t have anything to do with the questions that you’re now talking about, because once we get to this constitutional issue, we’ve already decided the statute is clear enough and the question is only, could Congress do this.

MR. AGUIÑAGA: So I respectfully disagree with that, Justice Kagan, for this reason, which is Cummings reiterated that Congress only acts legitimately when it sends federal funds out and it gets a reciprocal promise to comply with conditions in return. Sure, you can say that that existed here as to the state, but you cannot say it with respect to the state official in his personal capacity, one, because he never received —

 

JUSTICE KAGAN: But that’s what I’m saying. That’s always true with respect to 1983 suits is that you can always say, Oh, the state understood this, but the state employees did not. Now, in fact, that’s not true as a factual matter. State employees are well aware that 1983 suits exist and that other federal remedies exist, too. But the point that I’m making is that this RLUIPA is no different with respect to putting an employee on notice than a 1983 action is.

MR. AGUIÑAGA: And, Your Honor, I think if and when this Court gets a Section 1983 action where the underlying —

 

JUSTICE KAGAN: We can strike that down, too.

MR. AGUIÑAGA: No. I — well, I think you’re going to have a question, Justice Kagan, about whether Congress could use its Spending Clause authority to create a substantive right that runs against an individual person in his individual capacity. That’s not a question the Court has answered. I would say if you eventually have to answer it, I think the answer’s no, because that just is completely contrary to how this Court has conceived of the Spending Clause and the contract analogy that undergirds it.

AMANDA: I thought that exchange really highlighted not just what this means for Mr. Landor and not just what this means for other prisoners who are asserting religious free exercise rights, but what this might mean more broadly. What is the impact not just for RLUIPA cases but for other cases where government officers violate the constitutional rights of individuals?

And that question is really relevant right now, Holly, when we see government officials across the country, many of them enforcing immigration action, violating constitutional rights of individuals in the exercise of their duties. And so I think this question is kind of front and center.

A little bit of, I think, a distraction from the argument is Justice Gorsuch a number of times was trying to insert kind of off-base hypotheticals that had to do, for instance, with transgender athletes and athletics and abortion, to try to bring in other implications. I didn’t feel like those questions really hit or permeated the argument very effectively.

But I do think from a number of different angles, from, I think, both sides of the Court, we saw that what’s at play is not just what happened here in this case but their thinking about other statutes and other examples of action more broadly.

HOLLY: Yeah. And how they are tied to individual action under federal statutes that Congress passes. So after nearly two hours of argument, there were still a lot of questions. And while I certainly remain hopeful, I recognize that this is, you know, a hard case. At least to the justices, that’s how it came across.

But I was really especially glad that Mr. Landor was there, that he was treated with respect in the courtroom and that these good arguments were made on his behalf. I got to speak briefly with Mr. Tripp after the argument and see Mr. Landor wearing his suit with his dreds grown down to almost shoulder length. You know, imagining that over the last five years, he’s growing that back. But he was certainly standing there, dignified for his day in the Court — his day in court at the highest court — and had a lot of support. And so that was a positive thing about the day.

But it’s definitely a difficult case. One of the quick reviews after the case that we saw that I thought was a fair summary was written by Amy Howe who covers the Court at SCOTUSblog, and she noted that the Court looked at the claim very skeptically. I think that’s a fair summary of what we heard, and we will certainly be following the case, be listening, watching for the Court’s decision which we would expect by June. We’ll put a link to that article in our show notes.

That brings us to the close of this episode of Respecting Religion. Thank you for joining us.

AMANDA: For more information on what we discussed today and a transcript of this program, visit our website at RespectingReligion.org.

HOLLY: Learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

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HOLLY: We’ll be back next week, so join us on Thursdays for new conversations Respecting Religion.