Neil Gorsuch Just Took a Wrecking Ball to a Major Religious Liberty Law

Damon Landor is a Louisiana man who follows the Rastafarian faith. For two decades, he followed the Nazarite vow, a promise not to cut his hair. When he was imprisoned in 2020, he was concerned that he might be forced to get a haircut. So he printed out a physical copy of a binding appeals court decision from 2017 that prohibited prisons from compelling Rastafarian inmates to cut their hair. When Landor handed the ruling to correctional officers, however, they threw it in the trash, handcuffed him to a chair, held him down, and shaved his head anyway. He later sued, alleging a violation of his free exercise rights under the Religious Land Use and Institutionalized Persons Act, a landmark federal law.

On Tuesday, the Supreme Court Landor’s lawsuit by a 6–3 vote along partisan lines, holding that he could not sue the guards who maliciously violated his religious liberty. Curiously, Justice Neil Gorsuch’s majority opinion did not deny that these guards ran afoul of RLUIPA, which authorizes lawsuits against correctional institutions that fail to use the “least restrictive means” of restricting free exercise. Instead, he held that the guards had not “consented” to be sued for damages, so Landor could not recover a dime from them. In reaching this conclusion, Gorsuch did maximum damage to congressional power, undermining its authority to impose meaningful regulations under the Constitution’s spending clause. As Justice Ketanji Brown Jackson wrote in dissent, the blast radius of his decision could also reach “civil rights, environmental stability, healthcare, and more,” transforming federal directives into meek suggestions.

Given Gorsuch’s for religious freedom, one might have expected him to give full-throated support to the inmate in Tuesday’s case, Landor v. Louisiana Department of Corrections. But RLUIPA is not an implementation of the First Amendment; rather, it is based on Congress’ power to spend for the general welfare under Article I of the Constitution. The spending clause allows Congress to lay and collect taxes, duties, imposts, and excises all for the general welfare of the United States. It serves as the basis for statutes ranging from Medicaid to the Social Security Act to the Clean Air Act. RLUIPA is a spending clause statute too, because it provides funding for state prisons in exchange for states agreeing to respect religious liberty. Gorsuch is to laws enacted under the spending clause, and he used Landor to further weaken the federal protections that Congress enforces through it.

True to his judicial philosophy of strained hyper-textualism and pseudo-originalism, Justice Gorsuch’s analysis started by relying on a semicolon, or lack thereof. At the Constitutional Convention, he explained, one of the Framers tried to put a semicolon into the spending clause. Apparently, the semicolon in context may have suggested a broad reading of Congress’ power over the “general Welfare.” But a different founder struck the semicolon before it could be finalized. This drafting quirk, far more than just a fun fact for grammar nerds or English teachers nationwide, is seen as proof that a narrow reading of the spending clause is most appropriate. From it, the court just inferred that it must recognize serious, heady limits on Congress’ power to spend the tax dollars it has collected.

The Supreme Court over the years has already put reasonable limits on Congress’ spending power, semicolon aside. The canonical case on this subject is 1987’s South Dakota v. Dole, which asked whether Congress could condition federal funding of highways on states raising their drinking age to 21. The court said that Congress’ statute was constitutional and established that future statutes must meet a test that fairly put states on notice that they might face financial penalties if they failed to follow the terms Congress set. On Tuesday, though, Gorsuch added a new prong to the test: State officials, he wrote, must provide “voluntary and knowing consent” to be sued if they violate rights established under the spending clause. And the officials who tormented Landor, he concluded, did not provide that consent, so the lawsuit has to fail.

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This was an incredibly unusual step: When a case can be decided on either constitutional or statutory grounds, principles of judicial restraint say that the court should decide the statutory question first. Yet Gorsuch leapt straight to the constitutional issue, ruling that the spending clause requires Congress to be even clearer to state officials that they are at risk of lawsuits when they violate RLUIPA. Throughout the opinion, the court analogized Congress’ spending power to a “contract” between the federal government and the states. To the majority, every detail of that contract must be knowingly consented to by all parties who might be affected. But RLUIPA is legislation, not a contract. So, as Jackson wrote, it’s doubtful that the Constitution actually requires this unrealistic level of contractual clarity. Moreover, the state officials in this case arguably did agree to be bound by federal law. After all, they signed an employment contract with a prison that receives federal funding by virtue of RLUIPA. State officials are trained on their inmates’ rights, and prison litigation has been around for centuries, under RLUIPA and other statutes. There’s no serious argument that these state officials were blind to the consequences that might come from violating the rights of the prisoners they’re in charge of.

Not to worry, Gorsuch countered: Inmates like Landor can still obtain an injunction against the prison as a whole to protect their rights under RLUIPA. In reality, though, this relief is often impossible to obtain before the violation has occurred. And, as Jackson noted, a prison subject to an injunction can easily transfer an inmate to another facility that is not bound by the order. The transfer would therefore moot the case against the previous prison and start the whole process over. In fact, Landor himself was transferred across three Louisiana facilities in five months until the third one shaved his head. Before Tuesday, correctional officers at each facility might have still respected the inmate’s rights out of fear that they could be sued for damages. Now they have one fewer incentive to follow the law. And if the inmate obtains a new injunction, he can be transferred again, and the whole process starts over. Unless correctional officers voluntarily recognize their obligations under RLUIPA, they will ultimately face no punishment for violating that federal law.

In addition to the prison facility swap issue, there’s also the problem that litigation takes time, and there are extra procedural hoops a prisoner has to jump through before bringing a case in federal court. The threat of an adverse judicial ruling on some future day clearly didn’t matter to Landor’s prison guards. So given the weak impact of an injunction, combined with a prison’s ability to shed liability by moving any inmate who dares to assert their rights, the majority’s RLUIPA reading leaves little to nothing in terms of actual relief for incarcerated victims of religious harassment.

And so the court glossed over the religious rights of people like Landor, even as he waves the law in vain at the faces of prison officials who have near-total control over prisoners’ lives and bodies. Then, when he tried to vindicate his rights, the Supreme Court didn’t just refuse to recognize them, but took the opportunity to issue a sweeping change in constitutional law that risks hobbling a host of important federal protections. There’s nothing more Landor could have done in prison to affirm his faith and protect his rights. But there’s a lot more this court could have done to keep those rights from becoming empty promises.

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