Seeking Damages: "Sossamon v. Texas"

April 27, 2011 by Marci Hamilton

Last week, the Supreme Court decided Sossamon v. Texas, which significantly restricted the scope and impact of the federal law, Religious Land Use and Institutionalized Persons Act ("RLUIPA"). It also gave new life to the constitutional arguments against the law.

In Sossamon, a prisoner brought an RLUIPA lawsuit challenging a Texas state prison's policy that prevented attendance at religious services when the prisoner was on "cell restriction for disciplinary infractions" and a policy barring use of the prison chapel for religious worship. He sought an order forcing the prison to change its policies and seeking monetary damages. The policies were changed, but the courts rejected the claim for monetary damages.

The legal question was a little arcane, but important. It is standard constitutional law that because the states are sovereign, they cannot be forced to pay damages to an individual without the state's consent. So the question in this case was whether Congress had made clear in RLUIPA that if a state took federal funds, it was opening its coffers to damages claims.

The Court held that the language of RLUIPA was too ambiguous to overcome the presumption and, therefore, while prisoners may obtain injunctions against prison policies that substantially burden religious conduct, they cannot obtain damages.

This is an important case, because it is a reminder that the Supreme Court's federalism doctrine requires respect for the states as separate sovereigns from the federal government. Even when Congress intends to expand religious liberty, the Constitution's structure and arrangement must be observed. RLUIPA's predecessor statute, the Religious Freedom Restoration Act, violated numerous constitutional principles, including federalism, and was held unconstitutional in Boerne v. Flores.

The Court also made clear in this decision, as it did in Cutter v. Wilkinson, that Congress's power to enact RLUIPA is an open question. A small number of circuits have upheld RLUIPA against constitutional attack, but most have not reached the issue, and those that have have not addressed all of the arguments available. The Department of Justice has been defending RLUIPA as though its constitutionality is obvious, but this decision confirms that such certitude may well be misplaced.

The Becket Fund, which often represents RLUIPA plaintiffs, analyzed the decision as follows: "The most important takeaway from the decision is that Congress needs to act to fix the problem. Congress can fix the problem the Court identified in Sossamon by simply specifying that RLUIPA includes damages claims. The change could be as simple as amending 'appropriate relief' to 'appropriate relief, including damages.' This simple fix would create greater religious liberty for both prisoners and houses of worship." In a word: Why?

Why are damages necessary to obtain the religious liberty these litigants seek? They can get an injunction to alter the practices (unless their requests undermine security, which means they lose with or without RLUIPA). It is not because prisoners cannot obtain legal representation without damages. The statute provides for attorneys fees for the plaintiffs' attorneys, so damages are not needed to get lawyers to take these cases.

This case, therefore, does not create a problem that needs a congressional response. Stay tuned, though, because I have no doubt the lobbying has started already. And who pays such damages? The states, er, the taxpayers.

4/27/2011 4:00:00 AM

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About Marci Hamilton

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge, 2008) and God vs. the Gavel: Religion and the Rule of Law (Cambridge, 2005, 2007).

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