The role of invidious discrimination in free exercise claims: putting Iqbal in its place.

• Jurisdiction: United States
• Author: McNeill, Leila
• Date: 22 June 2010

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

1. INTRODUCTION

   Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard (1) to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, (2) and (3) its implication for national security and post-September 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. (3) Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation in future free exercise claims.

   Iqbal raises the question of whether a showing of invidious discrimination (4) is required in a free exercise claim. The answer to this question is crucial because it could potentially cripple plaintiffs bringing free exercise claims by making them prove an extra element: the government official they are suing acted with animus as opposed to mere intent as volition or intent as awareness of consequences on religion. Although Iqbal could be interpreted as requiring all free exercise claims to show invidious discrimination, the better view of Iqbal is that it does not speak to the vast majority of free exercise claims that plaintiffs can bring against the government. Instead, Iqbal should be applicable only where the plaintiff has specifically alleged invidious discrimination and a government official has asserted the defense of qualified immunity in a Bivens claim.

2. FACTS AND HOLDING

   In November 2001, during the September 11th terrorist attack investigations, agents of the Federal Bureau of Investigation (FBI) and Immigration and Naturalization Service arrested Javaid Iqbal, a Pakistani Muslim, on charges of fraud in regard to his identification documents and conspiracy to defraud the United States. (5) The government then imprisoned Iqbal in Brooklyn and labeled him a person "of high interest" to the September 11th terrorist investigations. (6) In January 2002, prison officials placed him in the prison's Administrative Maximum Special Housing Unit (ADMAX SHU). (7)

   The ADMAX SHU utilized the maximum security conditions allowable under federal prison regulations. (8) Under these conditions, detainees, including Iqbal, "were kept in lockdown for [twenty-three] hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort." (9) After his time at the ADMAX SHU, Iqbal plead guilty to the charges of fraud and conspiracy to defraud, was imprisoned, (10) and returned to Pakistan. (11)

   Iqbal then filed a Bivens (12) action in the United States District Court for the Eastern District of New York against thirty-four current and former federal officials, including former Attorney General John Ashcroft (13) and FBI Director Robert Mueller. (14) Ashcroft and Mueller were the petitioners before the United States Supreme Court in Iqbal (15) The complaint alleged that Ashcroft and Mueller "adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin." (16) Iqbal contended that "Ashcroft and Mueller were at the very least aware of the discriminatory detention policy and condoned it (and perhaps even took part in devising it), thereby violating his First and Fifth Amendment rights." (17)

   In support of Iqbal's allegations that he was subjected to especially harsh conditions due to a discriminatory policy, his complaint concentrated "on his treatment while confined to the ADMAX SHU." (18) He claimed that his jailors "'kicked him in the stomach, punched him in the face, and dragged him across' his cell without justification"; (19) did not provide him with appropriate medical attention; (20) subjected him to strip and body-cavity searches when he posed no safety risk; (21) and refused to let him and other Muslims pray because they did not allow "prayers for terrorists." (22) He also contended that prison staff routinely confiscated his Quran, impeded his participation in prayer services, and verbally reproached him by calling him a "terrorist" and "Muslim killer." (23)

   In the district court, Ashcroft and Mueller raised the defense of qualified immunity to the Bivens claim. (24) They moved to dismiss the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the complaint was insufficient to state a claim against them. (25) When a defense of qualified immunity is raised, the plaintiff must prove the violation of a clearly established constitutional right in order to overcome the defense. (26) In a free exercise claim, this constitutional right is that the government cannot intentionally discriminate against a person on the basis of his or her religion. (27) When the complaint fails to allege sufficient facts to show the violation of a clearly established constitutional right, the defendant has immunity from suit, and the case is summarily dismissed. (28)

   The district court denied Ashcroft and Mueller's motion to dismiss, finding the complaint sufficient to state a claim, despite their official status during the alleged discrimination. (29) Invoking the collateral-order doctrine, (30) Ashcroft and Mueller brought an interlocutory appeal to the United States Court of Appeals for the Second Circuit. (31) The Second Circuit affirmed the district court's decision. (32)

   The qualified immunity defense turned on the question of whether Iqbal adequately stated a claim that Ashcroft and Mueller "deprived him of his clearly established constitutional rights." (33) The Supreme Court, restricting supervisory liability in Bivens claims, (34) only analyzed the three allegations in the complaint directed against the two petitioners: (35) (1) the FBI, under Mueller's direction, "arrested and detained thousands of Arab Muslim men" during its September 11th investigations; (36) (2) Ashcroft and Mueller approved "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were 'cleared' by the FBI"; (37) and (3) Ashcroft and Mueller "'each knew of, condoned, and willfully and maliciously agreed to subject' respondent to harsh conditions of confinement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'" (38) The complaint also named Ashcroft as the "principal architect" of the discriminatory policy and identified Mueller as "instrumental in [its] adoption, promulgation, and implementation." (39)

   In dealing with Iqbal's claim of intentional religious discrimination under the Free Exercise Clause, the Court found that a free exercise claim requires a showing of purposeful discrimination, not just "intent as volition or intent as awareness of consequences." (40) In other words, the Court required proof that a defendant undertook his or her "course of action 'because of,' not merely 'in spite of,'" adverse effects upon a plaintiff's identifiable religious class. (41)

   In a five-to-four opinion, the Supreme Court ultimately held that, under Federal Rule of Civil Procedure 8(a)(2), (42) Iqbal's complaint was insufficient to state a claim of purposeful discrimination. (43)

3. LEGAL BACKGROUND

   1. Free Exercise Clause: A General Overview

      The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (44) In Braunfeld v. Brown, Chief Justice Warren declared that "[t]he freedom to hold religious beliefs and opinions is absolute." (45) However, the Free Exercise Clause does not provide absolute protection for religiously motivated conduct. (46) The Free Exercise Clause has been invoked primarily in three situations: (1) when the government prohibits behavior that a person's religion requires, (47) (2) when the government requires conduct that a person's religion prohibits, (48) and (3) when an individual claims that a law burdens his or her religion or discriminates on the basis of religion. (49) Ashcroft v. Iqbal falls into this third category of cases because Iqbal contended that Ashcroft and Mueller implemented an unconstitutional policy that subjected him to harsh prison conditions as a result of his religion. (50)

      One of the earliest cases to examine the Free Exercise Clause was Reynolds v. United States, in which the Supreme Court upheld a federal law that prohibited polygamy in the Utah territory over the defendant's argument that his Mormon religious beliefs required him to have multiple wives. (51) Chief Justice Waite wrote that to permit a person to refuse to follow a law because of his or her religious beliefs "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." (52) Thus, the right of free exercise completely prohibits government regulation of belief, an absolute right, but only limits government regulation of action, which is not an absolute right. Chief Justice Waite said: "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." (53) The same principle applies to the executive branch, including the FBI.

      Although the Court did not devise an overall test to determine permissible legislation under the Free Exercise Clause prior to the 1960s, it invalidated laws that proscribed solicitation for religious or charitable purposes as an infringement on freedom of speech and religion. (54) In 1963, the Court evaluated a free exercise claim under the test of...