Legal Docket: Rights without remedies

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NICK EICHER, HOST: It’s Monday, the 17th of November. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket.

Today, Landor versus Louisiana, a religious freedom case about drugs, dreadlocks, and an inmate named Damon.

EICHER: Bob Marley and the Wailers provided the most popular soundtrack for the religion Damon claims: Rastafarianism, a relatively new religious movement from the 1930s.

It borrows some Old Testament ideas—including the Nazarite vow, that’s key.

But it considers former Ethiopian emperor Haile Selassie divine, and mixes Biblical themes with cultural, political, and liberationist ideas.

MARLEY: And now-a you see the light / you stand up for your right (Jah!) / Get up, stand up (Jah! Jah!) / Stand up for your right (Oh-hoo!) / Get up, stand up (Get up, stand up) / Don’t give up the fight (Life is your right) / Get up, stand up (So we can’t give up the fight) / Stand up for your right.

ROUGH: Damon Landor asserts his right was to wear knee-length dreadlocks, while serving a five-month prison sentence on a drug-possession charge.

Wayne Rose is a lecturer at Morgan State University, and once worked as a Rastafari chaplain in the New York state prison system.

ROSE: Very importantly to the Rastafari identity is the wearing of dreadlocks.

EICHER: State prison officials in Louisiana demanded Landor comply with prison grooming standards. Landor even gave the guard a copy of a court opinion that expressly said shaving the dreadlocks of a practicing Rastafari is not permitted.

But the guard threw the court document in the trash. Eventually, they’d strap him down and shear the locks that took 20 years to grow.

ROSE: So when someone violates the expression of your locks, link to the divine, then they have eliminated, if you will, a vow of reverence to the divine, a spiritual vow.

He refers to the Nazirite vow from Numbers, Chapter 6 in the Old Testament, a vow taken to express devotion to God. The key component here is letting the locks of your hair grow long.

ROUGH: At this point, that inquiry no longer matters.

All parties agree that what prison officials did is unlawful, per federal statute. Landor’s rights are clearly spelled out in the Religious Land Use and Institutionalized Persons Act, known by the odd acronym RLUIPA.

What’s at issue now is Landor’s remedy. His rights were violated, so what do the government and possibly government officials owe him?

EICHER: On Legal Docket, we talk a lot about the free exercise of religion, a fundamental right grounded in the First Amendment of the U.S. Constitution. But we don’t often talk about RLUIPA.

Nor do we talk about what prompted Congress to approve it: A 1990 Supreme Court decision, Employment Division versus Smith. Ever since that decision, it’s been harder to bring a straightforward First Amendment free exercise claim.

ROUGH: The reason is, Smith held that a neutral law that’s generally applicable is okay so long as the law is rationally related to a legitimate government interest. In this case, a prison’s grooming policy that says all incoming inmates get a haircut, because hair is an easy place to hide contraband.

EICHER: But Congress wanted greater protections for religious liberty. So as pushback to the Smith case, it enacted not only RLUIPA, but its forerunne,… the Religious Freedom Restoration Act, known as RFRA.

ROUGH: Both statutes say that if a law restricts religious freedom, it is subject to strict scrutiny. The government must have a compelling interest and must use the least restrictive means possible to carry out its goal. For example, searching an inmate’s hair instead of shaving an inmate’s hair.

EICHER: But because the government chose to shave, Landor chose to sue. Where he’s run into trouble and why he’s at the Supreme Court is whether RLUIPA allows the claim he’s trying to bring. Getting his dreads back will take decades, and he’s looking for a more instant remedy, like money damages.

ROUGH: And that’s the question in this case: Does the statute, RLUIPA, allow Landor to do that? Does it allow a damages remedy?

But the bad news for Landor is that every circuit court that has considered the question has held money damages are not available under RLUIPA.

Justice Neil Gorsuch brought that up with Landor’s attorney, Zachary Tripp.

GORSUCH: As I understand it, the circuits are unanimously against you. And have been for many, many years.

ZACHARY TRIPP: That’s correct.

EICHER: Correct, but… the good news for Landor? Eighteen days before guards cut Landor’s hair, the U.S. Supreme Court handed down a decision in a RFRA case. And in that case, the court did allow money damages against government officials. The wording in those two sister statutes is precisely the same. Landor’s attorney:

TRIPP: And RLUIPA uses identical language. They’re like twins separated at birth. They clearly mean the same thing.

Both statutes say that a plaintiff is entitled to bring a lawsuit against government officials for “appropriate relief.” So, Landor’s side argued, because the Supreme Court held “appropriate relief” includes money in the RFRA case, it should also be allowed in the RLUIPA case.

ROUGH: But here’s the problem: The congressional power to enact these sister statutes came from different places in the Constitution.

To enact RFRA, Congress exercised its powers under the Fourteenth Amendment. But to enact RLUIPA, Congress exercised its powers under the spending clause.

EICHER: And the spending clause operates like a contract. The federal government gives money to the state and, in exchange, the state agrees to comply with certain conditions. In other words, it’s a deal!

ROUGH: And the deal must be clear. Not only the condition to comply with RLUIPA, but also the condition that non-compliance could result in money damages. It’s known in the law as the clear statement rule.

Justice Brett Kavanaugh thought the term “appropriate relief” sounded a bit too murky.

KAVANAUGH: The hard part, as I see it, for your case, for me, is that you need a clear statement, and “appropriate relief” is not as clear as it could be in encompassing damages. So how do you deal with that?

EICHER: But Justice Kentanji Brown Jackson sided with Landor.

JACKSON: We do have both notice and consent under these circumstances given that these individuals as third parties are not people in the world, they are employees of the recipient of federal funds. And so to the extent that the recipient of federal funds has made clear with the federal government that it’s going to require its employees to comply with RLUIPA and not violate people’s rights, then, when those employees decide, chose, consent to accept a job with that employer, they are thereby consenting to follow those agreements.

In other words, they implicitly agreed to the conditions by taking the job, they’re acting under the color of state law, and they indirectly received funds as paid employees.

BARRETT: Look, the facts of this case are egregious.

ROUGH: Justice Amy Coney Barrett was also sympathetic to Landor.

She even asked what happened to the guards, putting the question to Louisiana’s solicitor general Benjamin Aguinaga.

BARRETT: And then just out of curiosity, obviously this is beyond the record, I mean, was there disciplinary action here? Do you know?

BENJAMIN AGUIÑAGA: I can say that the warden himself is no longer associated with the Department of Corrections.

But Justice Barrett seemed concerned about where the logic would lead if damages were allowed. How would it play out in other circumstances? She worried it might stretch too far.

The state agreed, saying the correct solution is Congress.

BARRETT: To pass new legislation and amend RLUIPA to allow for damages against the states. And then the states can decide, each state for itself, whether it accepts that express condition. The answer is across the street, not here.

And that’s this week’s Legal Docket.

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