Religious Freedom Restoration Act – How It Works

Government Officials Can Be Held Liable Thanks To Religious Freedom Restoration Act

A new year and a new cause of action – life doesn’t get any better than that.

Unless, of course, you are a government official. That is because the new cause of action makes you, the government official, personally liable for your wrongdoing.

What Is The Religious Freedom Restoration Act?

It all centers on a federal law known as the Religious Freedom Restoration Act, which generally prohibits the government from placing a substantial burden on an individual’s exercise of religion. The government is only allowed to do that if the burden advances a compelling government interest and there is not a less restrictive way to achieve that interest.

To shed some light on those buzz words, let’s take a look at the facts in a recent case.  Three Muslim men, who were all U.S. citizens or green card holders, were approached by FBI agents to become informants. When the men refused, the FBI agents retaliated by placing them on a “no-fly list” which barred them from boarding commercial flights in the United States.

The men sued, claiming that they had lost the money they paid for airline tickets and that they had otherwise been financially harmed by loss of job, etc.  After the lawsuit was filed, the Department of Homeland Security removed the men from the no-fly list. There remained, however, the issue of the money damages.

The case made its way up to the U.S. Supreme Court. In an 8-0 opinion, the Court held that the men could sue the FBI agents, individually, for their money damages.

Wow. A government official can be personally liable for his or her wrongdoing? Who would have thought that possible?

Do Government Officials Get The Same Protections as The Government?

The Court made it clear that government officials do not enjoy the same protections as the government itself does. A government is entitled to assert sovereign immunity, which basically gives it a free pass from being held liable for all sorts of wrongs. An individual, however, is not covered by sovereign immunity.

Guess that government gig is not looking so good now.

Does The Religious Freedom Restoration Act Apply to State Laws?

The Religious Freedom Restoration Act is a federal law, and the FBI agents were federal employees. RFRA does not apply to state laws. Texas, however, has its own version of the RFRA. It remains to be seen how the ruling from U.S. Supreme Court will play out on the state level.

The Supreme Court case is Fnu Tanzin v. Muhammad Tanvir. The federal law is at 107 Sta. 1488, 42 U.S.C. Section 2000bb et seq. The Texas law is at Texas Civil Practice & Remedies Code Section 110.000 et seq. Here in the United States we take religious freedom seriously.

Moving on to your to-do list for the new year: review your will and powers of attorney for any changes. If you do not have these documents in place, then get thee to an attorney immediately. Now is a perfect time to get this done, since we all know that you are not in the office, chaperoning a school field trip or cruising in the ocean.

More for your to-do list: pull copies of your social security card, birth certificate, marriage license, insurance policies, logins and passwords, investments, bank account statements and tax returns. Organize. Scan. Save. Tell someone.

Attorney Virginia Hammerle is president of Hammerle Finley Law Firm. She is an accredited estate planner and Board Certified in Civil Trial Law by the Texas Board of Legal Specialization.  To receive a copy of her newsletter, email legaltalktexas@hammerle.com.