Shortly after the terrible attacks of 911, on Sept. 11, 2001, the Federal Government created a database of people that it held could not board an airplane. Many of these people were US citizens and had never been convicted of a crime. But when they tried to buy an airplane ticket, it was refused. Initially there was no clear set of criteria to determine who got placed on the list and who did not. It was a classic case of empowering Government bureaucrats with tremendous power but no accountability.
This issue was largely confined to Muslims and did not generate much controversy among the broader population. But imagine if a member of a particular Christian group engaged in a mass shooting, and the Government created a “do not buy guns” list for many Christians? You can easily see how dangerous it is for the Government to have the power to deprive people of normal basic rights, such as the right to travel by putting them on a list.
For years, the Government refused to even set up an appeal process to allow people to get removed from the list. Not surprisingly, many people with traditional Arab names had names similar to or identical to other people who were the ones that the US Government actually intended to include. Bureaucratic mix-ups and the (sometimes legitimate) excuse that secret intelligence sources prevented the Government from sharing why someone was placed on the list created a nightmare for many citizens.
Then a number of years ago, the Government established an appeal process to get removed from the list.
Until December 10, 2020, however, if a person could prove that they were wrongfully denied their right to fly, they had no claim. In a rare unanimous decision, the US Supreme Court held that a person who was placed on the List could sue Government officials for damages under the Religious Freedom Restoration Act of 1993.
This decision opens up a range of law suits for religious people and institutions burdened by Government decisions.
For those of who are civil rights lawyers and have been arguing for the right of Christians, Muslims, Jews and others not to face burdens from Government action, today’s decision provides a welcome new tool in our arsenal.
This is not a liberal nor a conservative opinion. It is an American decision: people can fight back against Governmental overreach.
Here is the Supreme Court Opinion No. 19-71, FNU TANZIN, ET AL., PETITIONERS v. MUHAMMAD TANVIR, ET AL.