Rebecca and Liz explain Landor v. Louisiana, the Supreme Court case that will decide whether a Rastafarian inmate who’d grown his dreadlocks for 20 years can sue the Louisiana prison officials who handcuffed him to a chair, held him down, and forcibly shaved him in violation of the law. They dive deep on the statute at issue in the case, the legal history leading up to this litigation, and what the oral arguments signaled. They also highlight some Supreme Court docket news!
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Background
Previous episodes about RLUIPA
SCOTUSblog – "Court appears skeptical of prison inmate’s religious liberty claim"
Cases Discussed
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State,
Liz Cavell: And I'm Liz Cavell with the Freedom From Religion Foundation. Today we are going to be discussing another case recently heard at the Supreme Court. It's called Landor v. Louisiana. But first we wanted to do some news of the day on what the Supreme Court has decided and not decided to take up this term because as we all know, religious liberty cases have been of very important interest to the US Supreme Court. This current court and our loyal listeners will also know we were monitoring three religion related cases last term and then this term we've already discussed two, we'll be breaking down one today, and what many maybe don't know is that there are still many more pending cert petitions, meaning that one of the parties has requested the Supreme Court to review a decision from the appellate courts and the Supreme Court is still, as we speak, deciding whether or not to accept and review some of these cases. So we're monitoring those cases that would also have a huge impact on religious liberty or just civil rights laws. And this past month two cases that we were watching very closely were denied review by the Supreme Court. And this is very welcome and good news and a huge relief. We just want to break down what those two cases were and why it's such good news that they're not getting reviewed.
Rebecca Markert: And this is very good news. I think it's important for us to talk about any victories that we receive in whatever manner they come up. The first case that was up requesting review at the US Supreme Court is Cambridge Christian School v. Florida High School Athletic Association. This was a case in which Cambridge Christian School, a private religious school, sued after the athletic association turned down the school's request to use the loudspeaker for prayer before a state championship game. The High School Athletic Association said that allowing the prayer would actually violate the Establishment Clause. First Liberty represented the private religious school, not really shocking, but in November, the Supreme Court denied review.
Liz Cavell: So this is really important because one of the key arguments that was being advanced by Cambridge Christian School now that they arrived at the doorstep of the US Supreme Court was that they should overturn the precedent that says prayer at athletic events over the loudspeaker at public schools is a violation of the Establishment Clause. And that is a huge seminal precedent that protects public school students from religious coercion by the government. And they were openly advancing an argument that the Supreme Court actually should just overrule that because now this court doesn't care about the Establishment Clause, they don't use the Lemon framework anymore. And so really they should start going through these public school precedents and overturning them. Also, this is extremely fulfilling personally because this case has been going on for so many years that Rebecca and I have been working in this space. These little babies will not stop crying about how they can't put their prayers over the loudspeaker at public school conference championship games, and it's very annoying. And they finally have reached the end of the road for their what, 10 year long saga to vindicate this to super important, right, to foist their personal prayers on everybody present at a game that they happen to be playing. And this was their big shot at the Supreme Court to vindicate this years-long quest and destroy Establishment Clause law in public schools in the process. And it's very satisfying to see them get a nice big fat L again for the million time and final time.
Rebecca Markert: But speaking of overturning precedent
Liz Cavell: And not being able to take a no for an answer for 10 years,
Rebecca Markert: Exactly. The next case is Davis v. Ermold. This is the case where Liberty Counsel, another friend of the pod is representing, Kim Davis. You may remember her. She's the former Kentucky County clerk who refused to do her job and issue marriage licenses in the wake of the Supreme Court's 2015 Obergefell decision that granted same-sex couples, the right to marry nationwide Courts have continuously ruled against Ms. Davis over the past decade, but she went back up to the Supreme Court asking them to not only grant her immunity from any liability for her misdeeds as a government official because of her anti-LGBTQ religious beliefs, but also she was asking the Supreme Court to overturn Obergefell and end nationwide marriage equality and the Supreme Court denied cert in that case as well.
Liz Cavell: Honestly, as we're talking about these side by side, this is actually a really important moment because you've got First Liberty and Liberty Counsel, two deeply coordinated Christian nationalists, legal organizations kind of advancing the same playbook, right? Took a 10 years long quest up and down the courts with these Christian plaintiffs who are not only trying to vindicate their own right to discriminate and violate the rights of other people, but in the meantime, they're trying to totally upend the law that undergirds the entire area of law that they're suing under. So I think these are both really important smack downs for that playbook. Actually, we can just overturn all the precedents for all the things: gay marriage, forget it, all the precedents we hate: Obergefell, all the Establishment Clause cases that protect students in public schools from government coercion. We're not going to confine our cases to just the claims of our plaintiffs. We're actually going to go for broke and tell SCOTUS, because they're in our pocket now, you actually should just overturn all these precedents. And I'm sure many people saw headlines about the Kim Davis case being once again aimed at the Supreme Court. And of course there is a lot of anxiety about whether or not this court would overturn Obergefell. And so that was a huge sigh of relief, I think for many people across the country to have them say, yeah, no, we're not going to review these cases.
Rebecca Markert: This is also just indicative of how emboldened, once again, we say this all the time, how emboldened these organizations and Christian plaintiffs really are totally, I mean, like you said, they know that the Supreme Court is in their pocket and so they can bring these cases and be overt about what they're trying to do. I mean, she didn't try to hide the fact that she wanted to overturn same-sex marriage rights in this country. She asked for it outright and I think 10 years ago they would've been a little more coy about it, but now they don't have to be. Now they can say, we don't want Santa Fe to stand. We want prayer in schools. We don't want a Obergefell. We don't want our LGBTQ+ community to have the same rights as all other Americans.
Liz Cavell: Yeah, why the Supreme Court does or doesn't accept comes down to a lot of behind the scenes factors that are completely shadowed. And so it's not like bringing me new hope about the Supreme Court, but it is a huge relief and a really, I think, important loss for, again, this same playbook by these same groups and forces who just will not stop trying to overturn and undo all the longstanding precedents that protect all the rights of everybody except for super conservative Christians. So yay.
Rebecca Markert: This is not to say that they're not going to try again, but it's at least these victories for now. We're ending the year on a good note so far.
Liz Cavell: Yeah, it's good news. Alright, so that's the news section of the pod today. Now we're going to move on and talk about another case the Supreme Court did accept review of this term and just heard oral argument on last month, I think.
Rebecca Markert: Yes, this is the case, Landor v. Louisiana. It was heard at the court at the beginning part of November, and this case involves RLUIPA, which is the Religious Land Use and Institutionalized Persons Act, and whether people bringing claims under this statute are eligible to get monetary damages for any infractions of the statute and their rights under the statute. We've talked about RLUIPA in a couple of previous episodes. I actually went and looked this up. I was trying to remember when we talked about it. It was three years ago.
Liz Cavell: Oh, cool.
Rebecca Markert: We've been doing this for three years now, Liz
Liz Cavell: I know we'll set that aside,
Rebecca Markert: But one was about the line of death penalty cases that we covered in 2022. The other episode was about religion when you're incarcerated. It was called "Religion Behind Bars."
So there are two things that I want to note about this statute to RLUIPA. It does two primary things. One, it protects land use by religious organizations. It prohibits local governments from implementing any land use regulations that burden religious exercise. Basically this part of the statute is my nightmare because I don't like any property law type stuff, zoning laws, easements, all of that kind of stuff, not my favorite aspect of law school. But the second part of this statute protects the religious freedom rights of incarcerated persons. The act forbids the government and its officials from imposing substantial burdens on incarcerated people's religious freedom. So essentially it allows people in prison to practice their faith without undue restrictions.
Liz Cavell: So I guess we should have started this coverage with a dryness warning because things are going to get real dry here because this is a case that unlike a lot of the other cases that we cover that end up at the Supreme Court and relate to religious rights, it's not a constitutional law case. It's a case that has to do with statutory interpretation. All the claims that are being made in this case arise under this statute RLUIPA. And so it's super dry just talking about the statute, what it does and just statutory language is just famously very dry and hard to understand. But I do think it's important to do a little bit of legislative history on how we got RLUIPA because it really informs the broader story or the backstory of why the Supreme Court is interested in this, why they might be thinking about it the way they are.
And so I want to do a little bit of that real quick before we dive into how the case arose and what the Supreme Court is doing with it. So that means we need to talk about Employment Division v. Smith. We probably, if you're a super fan, have heard us talk about that case, allude to it and talk about it in several contexts over the years. But it was a case also at the Supreme Court that was decided in 1990. If you know the case, you might remember, it had to do with a state denying unemployment benefits to a person that was fired for using peyote, basically violating the state criminal law that prohibits using peyote even though using the drug was part of the employee's religious faith, religious ritual. And the Smith decision is a free exercise case and it's like this really significant watershed moment in Supreme Court free exercise law because even though it was a majority opinion that was written by famously Justice Scalia. And basically the upshot is that the court did not hold for the peyote using plaintiff, right? They did not extend the First Amendment free exercise clause to require that the peyote users be exempt from the otherwise what was the law, which was that you use criminal drugs, you don't get unemployment benefits. The upshot is if there is a law on the books that is generally applicable and neutral, it can be enforced even if it burdens your free exercise of religion. And the backlash at the time to the case was that this was a departure from the law previous to it that something needed to be done to restore the version of free exercise rights that existed before Employment Division v. Smith. And so Congress did a lot of things after Smith came down in response to Smith, including passing the Religious Freedom Restoration Act, that in 1993 RFRA, the original RFRA, which basically said, okay, you have to apply strict scrutiny to any laws that burden religious freedom.
And there was a case that was filed challenging RFRA, and we had Marci Hamilton on our show a couple of years ago who talked all about that case. She argued it before the Supreme Court. It was called the City of Boerne v. Flores. And that ruling came down in 1997 and it declared RFRA unconstitutional only as applied to the states. So basically the court held Congress could only make RFRA the law of the land for the federal government, but they couldn't force the states to abide by the law that tells them how they have to evaluate laws that restrict religious freedom. So after Boerne, Congress passed RLUIPA in the year 2000, and basically the purpose was to try and again, find a way to shore up these specific religious free exercise rights in whatever context they could. And so Congress had to figure out kind of like, okay, what powers do we have that we can use to restrict what states do?
Because obviously trying to use RFRA to control how states treat free exercise didn't work. So RLUIPA pulled out just land use restrictions and how they can burden religious buildings, churches, and other religious buildings, and then institutionalized persons, people incarcerated in jails and prisons. And what they tied it to was their spending power because what it regulates is I'm going to now just let "religious land use" just drop off the face of the earth that I'm only going to talk about the Institutionalized Person Act. It's the part of the law that's relevant to the land or case that we're talking about today. But the authority that Congress has to pass RLUIPA is its spending power. So it regulates prisons and jails that take federal funds. If you didn't want to comply with RLUIPA, you could not take federal funds. It's a statute that ties its regulation to the acceptance of federal funds by states, and it has to do with how prisons that take federal funds, how they have to conduct themselves and respect and accommodate free exercise rights of inmates.
Rebecca Markert: That was an amazing overview. Thank you for that, Liz. I didn't think it was too dry. I thought it was incredibly helpful and I think our listeners will appreciate it. So RLUIPA does not allow prison officers to be held personally liable, and that means that victims are not able to sue for monetary damages if their rights are violated under the statute. And the text of the law actually allows for appropriate relief. And what comes up in this case is whether that terminology encompasses monetary damages. The interesting thing that Liz had just brought out too is obviously RLUIPA and RFRA have a shared history of sorts and are often called sister statutes and laws. And back in 2020, the Supreme Court took a case that was similar to this one, Tanzin v. Tanvir that brought up this same issue under the Religious Freedom Restoration Act. And there the Supreme Court ruled that plaintiffs were allowed to seek monetary damages against federal employees and their individual capacity. Remember that this was a case that involved two Muslim men who sued federal agents who had added them to the no fly list allegedly in retaliation for their refusal to spy on other Muslims.
Liz Cavell: Yeah. So this is a super specific question of law. I really want to lay it out so that the rest of this episode is not us just talking about things nobody understands. So the point is the law basically forbids the government from imposing substantial burdens on inmates' free exercise rights, people in prison incarcerated people. It basically says state prisons, if you take federal money, you agree that you are going to not violate prisoners' religious rights, right? And there's more language that explains what that is. But the part of the law that this case is about is how is it enforced? How can Congress enforce this? Well, okay, prisons could not take the money or they could take the money, but once they do take the money and they agree to be bound by RLUIPA, what happens when a violation of a prisoner's religious rights occurs?
As we'll talk about in a minute happened in this case and the text that Rebecca was just drawing out, which is there's a section that says this law establishes a cause of action. In other words, someone whose rights are violated under this act can file a lawsuit and they can obtain appropriate relief against the government. So really I just want to zero in on the fact that the whole question at issue in this case is not about the rights violation or what happened factually, it's does this plaintiff under the law RLUIPA actually have a right to sue the individual warden and prison officials that violated his rights in their individual capacity? And we'll talk about that later and for damages for money damages. And so I think if we just sort of cruise into the facts of the case and the posture, then we can kind of circle back to what the court is trying to decide this super nitty gritty question, and hopefully it will all make sense.
Rebecca Markert: I also just want to say there has not been a lot of coverage of this case. So that is also why we're getting into the nitty gritty of a lot of this because it has a potential to be a really big decision affecting not just prisoners' rights, but a whole host of other federal spending issues. And it's not been talked about a lot. It was argued the day before Veterans Day, and so I think got lost in a lot of other things that were happening around the same time. It really feels like it's a sleeper type of case. So let me tell you what actually happened to the incarcerated person in this case. It's actually a really horrific story.
Everybody on all sides of this case agree that what happened to Mr. Landor was horrible. In 2020, Damon Landor was transferred to the Raymond Laborde Correctional Center. He only had about a month left in his sentence, which I believe was about five months. He was in prison for a drug charge. And when he got to Raymond Laborde Correctional Center, a Louisiana prison guard handcuffed him to a chair and forced him to have his knee length dreadlocks shaved off. He had been growing his locks for nearly 20 years. He is a Rastafarian. He adheres to those religious beliefs and growing his hair in this manner is part of a practice that's known as the Nazarite vow. It's a vow that requires adherence to abstain from cutting their hair. This is a practice that is biblical, it comes from the Bible. Many of our listeners might recall the story of Samson who had all this power in his hair. Rastafarians believe that they should not cut their hair because they view their hair as their crown.
So this is a core tenant to this religion. And Damon Landor served his sentence in two other prisons, both of which they allowed him to keep his hair long or under what's known as a rasta cap. But when he was transferred to this last correctional center during the intake process, he was handcuffed to a chair and they shaved him bald. This also occurred after he showed the officers doing the intake, a printed out copy of a Fifth Circuit ruling that stated forcing Rastafarians to cut off his dreadlocks would violate RLUIPA and the officers in this case, they threw it in the trash and still shaved him bald.
Liz Cavell: So literally you couldn't script a scenario that provides factual certainty in terms of the prison officials' knowledge of the law. That came up a lot at oral argument, and we'll get into it in a little bit and it may or may not be a required factor. I'm just saying factually, this person came prepared knowing that okay, it's the prison policy that everyone that comes in and does intake has to get their hair cut. But so I'm going to come with a printed out copy of a Fifth Circuit decision that has jurisdiction over this prison. It's binding in Louisiana that says, flat out shaving my dreads will violate my religious rights under RLUIPA, therefore, it is against the law for you to do that. And the officers took his printed out copy of that decision, threw it in the trash, cuffed him to a chair and shaved his 20 year dreadlocks. You couldn't script a worse set of facts for more flagrant violation of somebody's religious rights knowingly and with seemingly malice. There's no explanation. I mean there's no argument here, and no one's making an argument here that the prison guards the wardens didn't know or didn't intentionally violate RLUIPA, this law that binds them.
Rebecca Markert: And it's true throughout the oral argument, I think justices several times agreed this was a violation. It was horrible and a huge infraction on religious liberty rights of prisoners. So Landor serves a sentence, gets out of prison and sues the district court in this case dismissed his case and said, first of all, that it was moot because he had been released from prison. And then they also said that our lupa doesn't authorize compensatory or punitive damages. So he appeals, and this goes to the Fifth Circuit of Appeals. The court that already had said that shaving someone's dreadlocks is a violation under RLUIPA. So the Fifth Circuit affirms the district court pointing out that RLUIPA is different from the Religious Freedom Restoration Act because Congress enacted RLUIPA as Liz mentioned earlier, under the spending clause. So Landor files for en banc review, which is also denied.
Recall that en banc review is asking the entire bench of the Fifth Circuit Court of Appeals to hear the case. That means every single judge on the Fifth Circuit would hear this case. It's denied, but there is pretty strong dissent and there's strong language from this denial that is important. 15 of the 17 judges at the Fifth Circuit said this issue is for the Supreme Court to decide, and I'm going to read a quote from the denial because I think it just illuminates, I think the frustration that the judges on the Fifth Circuit also had about this, not only because of there was nothing that could be done, but also they were a little upset about their decision getting thrown in the trash. So here is a quote from the opinion from the denial:
"Officials at the Raymond Laborde Correctional Center knowingly violated Damon Landor's rights in a stark and egregious manner, literally throwing in the trash, our opinion, holding that Louisiana's policy of cutting Rastafarian's hair violated the Religious Land Use and Institutionalized Persons Act before pinning Landor down and shaving his head. Landor clearly suffered a grave legal wrong. The question is whether a damages remedy is available to him under RLUIPA. That is a question only the Supreme Court can answer."
Liz Cavell: This kind of paints a picture. And this is really interesting because this case has really strangely scrambled the normal bedfellows and the normal kind of breakdown of where and who falls on which side of a religion case at the US Supreme Court. And so that's why it's even a little bit odd for our organizations and sort of fitting around this case and RLUIPA and RFRA and how this kind of fits in to our missions. But clearly even the majority of the Fifth Circuit in holding the way they did, were basically saying in the quote that Rebecca just read to you and in the opinion is like, we feel like we have to rule this way because the Supreme Court has not answered the question of whether a damage is remedy is available under this law. So even though appellate courts have all ruled in this way, they're also asking the Supreme Court to do a thing that it hasn't done yet they feel constrained to do what the Supreme Court has not done under this law.
And so the thing I wanted to point out is there were, let's see, six justices who dissented from the denial of rehearing en banc. In other words, six justices who wanted to grant landowners request to have the Fifth Circuit review the case on bonk the whole entire court. And what's weird is that group of six is what you would normally think of as the ultra conservative. Many of them Christian nationalists justices on the fifth circuit, like the most conservative justices, Justice Ho, several other Trump appointees who are uber-conservative justices, a couple of Republican appointees, right? These are all conservative justices, some of them extremely ultra conservative and Christian nationalists in their typical rulings and even the majority you see is not very enthusiastic about the way that they feel compelled to rule. And everyone is looking to the Supreme Court basically to give permission to the appellate courts to read RLUIPA as providing a damages remedy.
So that is what happens. The case gets appealed to the US Supreme Court and the one question is, can an individual sue a government official in his individual capacity for damages money for violating RLUIPA? Everyone agrees that Landor's rights under RLUIPA were violated, that what the prison officials did to him violated RLUIPA. It's just a question of does it matter? Is there anything under RLUIPA that says you actually have a remedy, something can be done to enforce this? And so that is the question, kind of the one and only question, right? There's no factual question. Nobody's deciding whether his rights were violated or whether there's some technicality that means the prison didn't do anything wrong. It's all about this right to sue for damages under the law. And so that's what SCOTUS took up and that was pretty much the only subject of argument at oral argument last month,
Rebecca Markert: And I'm just going to mention again this strange bedfellows aspect of the case because Americans United and some of our usual allies are on the same side as a lot of these Christian nationalist organizations and some of the more conservative religious groups that we usually oppose in a lot of these cases. We all actually submitted amicus briefs in support of Landor. This includes the Becket Fund, Christian Legal Society, American Center for Law and Justice, all filing amicus briefs on the same side as Americans United in this particular case, it's actually noteworthy. Only one group submitted an amicus brief in support of Louisiana. Can you guess what group it was Liz? It's the National Sheriff's Association. And so it just sort of–
Liz Cavell: Shows these are the people who will be sued for violating RLUIPA,
Rebecca Markert: Right. So AU's involvement in the case again was at an amicus level and we were really arguing the crux of the case was that monetary damages in religious freedom cases, these are necessary because they're often the only way to vindicate a victim's rights and to deter future violations,
Liz Cavell: Right. FFRF did not file an amicus in this case. Mostly we didn't necessarily have a non-represented viewpoint to bring into the case, but I do think it's really important to view this case and we haven't always been fans of RLUIPA and certainly not RFRA and these super statutes that give special religious exemptions from laws, but it's important to think about this case just in the context of how this court rules and treats free exercise rights and including these super statute, super religious statutes like RFRA when it's taking up cases that are brought by Christian plaintiffs. It's really frustrating to see that. Okay, yeah, this is a technical question of statutory damages, but isn't it strange that somehow with all the bedfellows, Rebecca's talking about, like all the conservative Christian nationalists, judges below and all the conservative legal organizations that we're usually opposing asking for this court to rule that this right cause of action exists somehow they're going to find a way to not rule in Landor's favor even though everyone agrees that his rights were horrendously violated under this law. I think it's really important to look and think about this case in the broader context of this Supreme Court's religious liberty jurisprudence and what it has done in other free exercise and religion cases. Because I found myself as I was listening to oral arguments, wondering how different it might sound if the Rastafarian inmate was a conservative Christian who had his Bible thrown in the trash and lit on fire or something
Rebecca Markert: A hundred percent.
Liz Cavell: And I think to the credit of all these people who are really super juiced, free exercise clause champions and champions of laws like RFRA, where FFRF has had a much more ambivalence around laws like RFRA and RLUIPA, I think to a lesser extent it's not super statute like RFRA. It's a different kind of statute, but I think to the credit of the conservative justices on the Fifth Circuit and all the people in the amicus briefs, it's a consistent view of giving these free exercise rights, all this kind of elevated status under the law and it makes no sense why the Supreme Court would not agree. It's just really hard to square.
Rebecca Markert: So let's get into the arguments. So Landor's attorney gets up there and he starts talking about how the whole point of RLUIPA is to restore to those pre-Smith rights and remedies. That's right. And under pre-Smith jurisdiction damages were available and since 2020 they're also available under RFRA. Again, these are sister statutes, some people call them twin statutes. They clearly mean the same thing. And then he also went on to talk about the individual capacity action being especially clear.
Liz Cavell: RLUIPA uses the language individual capacity, and so he's pointing out that once the court can hold that individual capacity action is authorized by the statute, then the next step is obviously that means that damages are available because that's what an individual capacity action is. Individual capacity is the language that's meant to distinguish official capacity when we're talking about government agents or employees because you're suing them, you're not suing the government for their actions, you're suing them individually for their actions and it's presumed in an individual capacity claim that damages will be available because if they're not, then in the words of the attorney for land or officials can literally treat the law like garbage, which is what they did in this case,
Rebecca Markert: It's what they did.
Liz Cavell: So he got a lot of questions right away and particularly from conservative justices. So the dynamic and the rhythm was definitely like the attorneys arguing on behalf of Landor or supporting Landor, and by the way, the United States Solicitor General was arguing on the side of Landor. Remember from other cases, the US can file briefs as amicus in these cases just like anybody else, but because they're the states, they have the right to also appear at oral argument on the side of whatever party they're supporting. In this case, the United States is supporting Landor the inmate
Rebecca Markert: And when you're saying the United States, you're saying the Trump administration, the
Liz Cavell: Trump administration, the
Rebecca Markert: Trump administration is on our side here.
Liz Cavell: I know.
Rebecca Markert: And the US Supreme Court from this oral argument seems poised to go against him potentially in this case.
Liz Cavell: So anyway, back to the attorney representing Landor. So during his section of the oral argument, you got a lot of questioning. Again, it was not the same tone as some of the religion cases where the conservative justices are really hostile to the argument being made, but the rhythm being that they were the ones that were skeptical of his position, there was a lot of technical weedsy questioning about what about this precedent and what about that precedent and questioning about the significance of Congress's authority being based on the spending clause, why or why not that might affect the court's decision as to whether or not damages are an appropriate, what's meant by an appropriate remedy. One thing that was a huge part, there's a lot of talk about the contract analogy like the court talking about basically the prison officials and the wardens. They're not the ones that make the agreement with the federal government to accept money in exchange for complying with RLUIPA.
So how does that affect our decision here? Gorsuch was on this, Barrett was on this a lot. In other words, in contract law we require privity between parties in order to bind them to the contract and how does that apply here? And I don't know why that's significant. They were referring to it as an analogy and an analogy does not sound like a basis for decision making. It sounds like an analogy. It sounds like a tool for understanding a situation, but it's not binding on this situation. This is not a contract law case, but they were looking, I think to contract law analogies to basically support a decision or an argument or a point that somehow our lupa can't be said to create a right to sue prison officials as individuals for damages because they're not sufficiently on notice that they're bound by the contract, they're bound to abide by RLUIPA or else it was very typical like let's all ignore the reality of the situation, which is that this was pointed out at oral arguments.
There were amicus briefs filed from a group of former prison officials on the side of Landor basically pointing out, we receive a ton of training about complying with federal laws, including RLUIPA, that were liable under statutes such as 1983 civil rights statutes were liable to be sued individually. This is not something that no prison official has notice of. Nevermind the fact that these specific prison officials literally had notice, literally were told if they didn't have notice before. They certainly had noticed when Landor presented them with a copy of a Fifth Circuit opinion that said, Hey, you're bound by RLUIPA to not do this thing. Here is literally the piece of paper that says so, but that didn't seem to carry much weight with some of the justices who were really hung up on the privity and the contract law analogies without personally having a super deep understanding of why and where that contract analogy analysis comes from in how the court has analyzed whether a statute is giving rise to a cause of action for damages. It did seem like that was a path that several of them were going down that I could see playing a part in a decision that's going to be a decision that says Landor doesn't have a right to sue.
Rebecca Markert: Yeah, Justice Jackson sort of brought that up. Just the fact that these prison officials aren't just like out in the world. They are employees of the government who are receiving federal funds, and like Liz said, they get that training, they understand what they're signing up for when they decide to take a job with the employer. Again, she's always the one bringing the practical real life aspects of the case to these oral arguments.
Liz Cavell: Right. Kavanaugh also was on this whole like, oh, what about clear notice? The statute says, again, uses the language that someone can sue and get appropriate relief, and that is not clear enough to say you could sue someone for damages. Basically that's not clear enough. So the Congress wasn't clear enough and that it means prison officials don't have clear enough notice. All of that seems pretty strained. You could easily see the Supreme Court going the other way. As Rebecca mentioned, they have done in analyzing other statutes very similar with very similar language to find that there actually is a right to sue for money damages, but you could see them straining around why it's actually not as clear as it should be or could be. I really admired the attorney for Landor. He really held his ground and there was one moment, there was a part where Justice Gorsuch was questioning the attorney for Landor and he was presenting his hypos, and this court is obsessed with presenting hypos that involve the same kind of situation, but a trans person gets benefited and I guess it's designed to make the person go, oh my God, I never thought of that. We can't have that. It's the gotcha move of the conservative justices on this court. I've heard it at the last three oral arguments I've listened to where there's some kind of hypo and it involves this situation, but make it trans. So while he was questioning Landor's attorney, he's saying, oh, well let's talk about this. This is back to notice and consent and suppose a federal statute said something like this, if a coach at a federal funds-receiving university allows biological men on a women's sports team, a female trying to make the team could sue for a million dollars.
And so the attorney's trying to respond basically circle back to listen. The rule I'm saying has these parts, if there is a rule, a valid condition that applies, that's in the law by Congress and it's within the scope and the thing that's being done threatens the integrity of the program and Gorsuch keeps interrupting him and interrupting him, just let's assume it's germane. Let's assume it does all the things you're saying, just answer yes or no, just answer the question. You just don't want to answer the question. And he's interrupting him constantly, not letting the guy answer the question the way he wants. He wants a yes or no, I got you on the trans thing. You better say yes or no, yes or no. Basically, all I want to say here is that as Gorsuch is hammering this guy, he's being really confusing as usual with Gorsuch.
He's super condescendingly making pretty mediocre points, but just with super condescension and interrupting so that the attorney can't get answers or words out, and basically the attorney finally is, I mean in a future case, the hypotheticals you're bringing, this court wants to cut back on some of the frontline scope of what Congress can do. That's fine. And justice is like, no, no, I'm not talking about cutting back on anything I'm talking about. This is what all the circuits have said about RLUIPA since it was passed. And so then the attorney jumps in and says, yeah, I want to be clear that once Congress and then he pauses and he says, I'm not going to back down on this at all to Justice Gorsuch once Congress can impose the condition, and Gorsuch is like, I wouldn't expect you to Mr. Tripp. It was just a really powerful moment being bullied and condescended to and kind of stupidly.
We all pretend these are the biggest and the best legal brains sitting on Mount Olympus, but really it's just kind of confusing. You can't really follow them and it's all really performative. So he just says, yeah, no, I'm not going to back down on this at all. And he kind of put 'em in his place. All of a sudden he got to answer the question and he said, once Congress can impose the condition within the scope of their work, and that can be a hard question, but here it's not. Once they can impose the condition, they can enforce it. That is the only step we're asking about here. We're not asking you to change any law on the front end about what Congress can and cannot do in the first instance, and then it was silence. That line of questioning was over, and I just so impressed by that attorney's ability to just get totally kicked around by Gorsuch for 90 seconds and then say, I'm not backing down on this at all. This is our position, and it was a beautiful moment.
Rebecca Markert: That was something that was highlighted in our team discussions too. I think that was the exact quote. I'm not backing down on this.
Liz Cavell: I really appreciated that. It was like it needs to be said. These people are just doing all this performative bullying to drag you to the side of the point. What about Congress says you can sue a coach at a federally funded university for not letting a trans person on you can sue for a million dollars or no, if you do let a trans athlete on, then a girl can sue for a million dollars. It's supposed to trap you into being confused between your priorities, and I really appreciated that this attorney did not let that argument go where Gorsuch wanted it to go.
Rebecca Markert: Justice Barrett also was big on the hypotheticals about the trans students as well, and she brought it into the school district context because school districts get federal funding as well, and she says, why couldn't you, for example, say that a school district schools that take federal money, if they do and we want to, why couldn't liability extend to parents who choose to send their kids to those schools? Think about it. If a child is transitioning and the parent says, I'm not going to facilitate that. I'm not going to call the child a different name or call the child by different pronouns, could there be some sort of cause of action that would allow the child to sue for civil liability?
Liz Cavell: But again, that doesn't make sense. They kept going farther and farther field. What about third parties that are not even employees of the state? Just parents of a school that receives federal funding. Okay, well, how are they agents of the state? And then she went back, I think kind of realized maybe that example was dumb and then went back to Gorsuch's example and was very just say yes or no. You don't want to say yes or no, but it's like they think the whole world is obsessed with trans athletes being in sports and it's all they can think about, and if you just can trap them into seeing how their argument leads to foiling that goal, they will just be so floundered, their brains explode. It's like you don't want to say yes or no, you don't want to say that's where the logic leads. You don't want to accept the consequences, and he's just trying to say, I don't care. Just decide this case on the facts and the law in front of you. I guess yes, if that's where the logic leads, so be it, but we're not touching those questions. Your hypo is involving a bunch of other questions that we are not remotely bringing up or touching today.
Rebecca Markert: I also just hate it when attorneys, justices do that whole just say yes or no, just say yes or no over and over again because it is just rude and condescending and
Liz Cavell: Also stupid. It's like, is that valuable? Are you doing valuable probing here? It's like the gotcha stuff. It's like they're trying to relive their mediocre cross examiner days,
Rebecca Markert: Right, right. But that's the thing. It's mediocre. Exactly.
Liz Cavell: Yeah, it's gross. Anyway, long story short about Landor's attorney's argument is that I think he held his own, he got a ton of skeptical questioning from all the conservative justices and then from the SG's office, the Trump administration's SG's office, Libby Baird got some time to do oral argument, and again, they argued on the side of Landor, and she pretty much got the same really skeptical probing questions from the conservative justices, some supportive questioning from at least Justice Jackson and was not really deviating from just really supporting the argument that actually RLUIPA does give a cause of action for damages, and that's what the court should hold. The important thing is that they were asked, is there any daylight between your position and Landor's? And the United States basically said no. And then there was argument from the attorney for the solicitor general for the state of Louisiana, and it was again, the rhythm of it was all of a sudden the conservative justices were very quiet and he got very probing, skeptical, tough questioning from Kagan, Justice Jackson, and Sotomayor. So just like so many cases you can based on oral arguments, if you're just monitoring the rhythm and the tenor of the questioning, it's the conservatives are on the side of the prison officials who shaved this guy's dreadlocks and the three other justices are on the side of Landor, and it's really surprising because of the way the public and also the rest of the legal world is breaking down on the sides of this case
Rebecca Markert: And just how much this court and the justices like to espouse about religious freedom. No kidding. And elevating those rights above all other rights and things like that when it comes to money, apparently it can play second fiddle.
Liz Cavell: Something is more important, I guess, than religious freedom. I mean, this obviously cannot be proven and no one would ever admit to this, but I would love for everyone to imagine this case taking place, but with a conservative Christian inmate and some set of facts that are equally egregious, a total violation of rights, but it's not a minority religion. It's not a black person.
Rebecca Markert: Right. Well, and that's exactly what I was going to say as well, like the hypothetical, for lack of a better word that you brought up earlier today, Liz, where it is this Christian, devout Christian who comes to intake and has his Bible thrown in the trash and burned, what would they say in that particular case? I think it probably just wouldn't have gone up. Something like that wouldn't make it to the Supreme Court or this Supreme Court because they wouldn't want to rule against that Christian
Liz Cavell: Or if it were just postured the exact same way because the Circuit Courts have been ruling that RLUIPA doesn't authorize the damages claim, but it's for the Supreme Court. The Fifth Circuit is literally asking the Supreme Court to hold clarify this, and the six conservative justices from the Fifth Circuit think that's their decision, that the petitioner landowner's argument here that actually this is the rational reading of this law. It makes no other sense. It's not enforceable. Otherwise, they would've ruled that way, and so the idea that the Supreme Court couldn't do this, they would scoop this up and find this cause of action in our lupa in a heartbeat. I think
Rebecca Markert: Even under the spending clause,
Liz Cavell: I think so. I don't know. Maybe you feel differently about their principled commitment to things
Rebecca Markert: I think there are other motives at play here about just being able to gut federal spending overall, and I think that that type of case would never have made it to the Supreme Court. They would've waited for something like the facts of these where they could at least, I mean there would be,
Liz Cavell: I can't imagine them avoiding a case that involved the Bible getting thrown in the trash can and burned,
Rebecca Markert: Except that, yeah, maybe you're right. Maybe you're right.
Liz Cavell: I'm not even saying that the Fifth Circuit, super conservative six justice dissent is so right, and I so agree because I prefer this outcome. It's just that right there is an analysis of the arguments that deals with the spending clause argument just fine. They could easily do it if they are the free exercise warriors that they claim to be. So I just think it's very bizarre that they appear not to be, and also, why did they take up this case? The status quo is that no one has ruled for Landor, and so by taking his case, the signal was, the thought was they're going to find that RLUIPA authorizes damages claims, but based on oral arguments, now all of a sudden that expectation has shifted away.
Rebecca Markert: Yeah. Yeah. Well, decision anytime between now and June, I'm not sure if this is going to be one that's going to be in coming down in the summer. It might come down earlier. It could come down in the spring.
Liz Cavell: It's one of those ones that they might drop early and just be like, our hands are tied, Congress has to change the law and make it even clearer, and I guess that's what has to happen. It'll be something like that because they can hide behind the statutory interpretation piece.
Rebecca Markert: I say it's Justice Kavanaugh writing the opinion.
Liz Cavell: I don't know. I'll put my money on Gorsuch just to make it a friendly wager. I mean,
Rebecca Markert: Yeah, either way,
Liz Cavell: Maybe Barrett, she was very passionate about not protecting this guy's rights,
Rebecca Markert: But that would be giving a woman a chance to have a voice at the Supreme Court.
Liz Cavell: True. Yeah. I'll put my money on Gorsuch and we'll see. I cannot believe it. I don't think this was the conventional wisdom when the news was Supreme Court agrees to hear dreadlock case, but I think based on oral arguments, I think it's going to be a 6-3 against Landor saying, sorry, your rights were egregiously violated horrendously while you were in custody, but this law that at once tells you that this conduct is an egregious violation of your religious rights also provides no remedy for you in any way to vindicate that. Right. So sorry. It's more of a good faith agreement between us and prison officials. I guess it's the honor system, but if they want to just throw it in the literal trash and hold you down and violate your rights, I guess Congress didn't intend for there to be any cause of action,
Rebecca Markert: Right? Well, I mean, there's a cause of action. You just can't vindicate them.
Liz Cavell: Yeah, right, because you can't sue the government because they have immunity, and you can't get an injunction because you're not in prison anymore. So the only thing available to you is damages, but you can't get those because reasons.
Rebecca Markert: Yeah. Yeah,
Liz Cavell: Yeah. Good stuff. Another banner day for rights at the United States Supreme Court.
Rebecca Markert: This is also why we had to start the show with a bit of good news.
Liz Cavell: True,
Rebecca Markert: Because this was a hard case to discuss,
Liz Cavell: And this is a weird one. They're going to make a lot of unusual people angry,
Rebecca Markert: I know,
Liz Cavell: With this one, but they don't seem inclined to care.
Rebecca Markert: Yeah. I mean, the fallout of this decision will be interesting to see too. Will it galvanize groups to go to Congress and have Congress change the law in some way to be more explicit?
Liz Cavell: We shall see.
Rebecca Markert: We shall see. So that is it for today's episode. I'm Rebecca Markert.
Liz Cavell: And I'm Liz Cavell. If you're not already, please follow us on our socials, Facebook, Instagram, Bluesky, and X. Please also remember to leave us a review. Let us know how you're liking the show. You can also find us we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
