The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms.
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What is the role of religion in public life? Along with Americans in general, the U.S. Supreme Court has taken an interest in this question lately. In the 2019 term, the Court decided landmark First Amendment cases including Espinoza v. Montana Department of Revenue, Little Sisters of the Poor v. Pennsylvania, and Our Lady of Guadalupe v. Morrissey-Berru, as well as some important religious liberty-related cases like Bostock v. Clayton County. In addition, the Court considered multiple challenges to COVID-19 restrictions on public gatherings brought by religious organizations.
The 2020 term will continue this trend. Most notably, the justices, including newly-confirmed Justice Amy Coney Barrett, heard argument in Fulton v. City of Philadelphia on November 4. Yet while Fulton has certainly attracted worthy attention, this term has other important religious-liberty cases on the docket.
Two cases concern the remedies available when a government violates its citizens’ right to religious freedom. On October 6, the Court heard argument in Tanzin v. Tanvir, which considers “whether the Religious Freedom Restoration Act . . . permits suits for money damages against individual federal employees.” And yet to be set for argument is Uzuegbunam v. Preczewski, which asks whether “a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.”
Uzuegbunam’s facts are fairly simple and reflect a growing trend of attempted censorship on college campuses. Student Chike Uzeugbunam wished to peacefully share the Gospel on his public college’s campus, but the college required him to ask permission, reserve a time, and remain in a small free speech zone while sharing his faith on campus. Uzeugbunam complied with all of the rules and regulations, but a complaint about his quiet conversations with students led to an encounter with the police and the threat of arrest if he continued to speak publicly. Uzeugbunam and his friends ceased exercising their First Amendment rights to free exercise of religion and speech and sued the college to challenge its policies as unconstitutional.
Before the district court could rule on the case, the college repealed its speech policy—part of another growing trend of colleges repealing speech-restrictive policies before their constitutionality can be litigated. The district court in this case then dismissed the challenge as moot. A case with a similar procedural posture reached the Supreme Court just last term. In New York State Rifle & Pistol Association Inc. v. City of New York, a challenge to a New York City gun control regulation was mooted by the city’s repeal of the regulation, and the Court dismissed the case based on mootness. While New York State Rifle concerned the Second Amendment and Uzeugbunam concerns the First, the problem remains the same: how can a civil-rights litigant prevent his or her case from being mooted by a repeal of the controversial policy?
Uzeugbunam argues that the answer lies in damages. In his lawsuit, Uzeugbunam is not only seeking an injunction (as were the plaintiffs in the Second Amendment case), but also one dollar in nominal damages as an acknowledgement that his rights were violated. He contends that his damages claim is enough to keep his claim from being moot, despite the fact that the policy was repealed after his rights were violated. The Northern District of Georgia and the Eleventh Circuit did not agree.
But advocates from across the ideological spectrum do agree. Uzeugbunam is being represented by Alliance Defending Freedom (ADF), and twenty-two amicus briefs have been filed in support of his argument, including from the American Civil Liberties Union, the Christian Legal Society, and the United States Department of Justice. As amici, the American Humanist Association (AHA) acknowledges that though the “AHA and [ADF] stand on opposite sides of the ideological spectrum, they unite in their esteem for First Amendment liberties and their conviction that such rights are meaningless if they cannot be vindicated.”
Nominal damages are an important vehicle for developing constitutional precedent and litigating foundational cases. In many cases concerning religious liberty, free speech, gun rights, and other civil liberties, nominal damages are the only damages that can be alleged, and therefore, the only way to save claims from mootness. Although a civil rights plaintiff’s ultimate goal is not to receive damages, but rather to prevent enforcement of the offensive policy, allowing a claim to survive through nominal damages is crucial to preventing future injustices by the government. A majority of circuits agree, as does Justice Alito in his dissent in New York State Rifle. Joined by Justices Thomas and Gorsuch, Justice Alito’s argument posits that dismissing cases as moot allows a court’s docket to be “manipulated” by government entities.
While Chike Uzeugbunam’s case has not generated the attention that other religious-liberty cases have seen, it is very important to the future of civil rights litigation. The diverse and united front supporting Uzeugbunam should not be ignored.