The Enemy of My Enemy: A Joint Effort Protecting the First Amendment

The American Humanist Association recently filed an amicus brief on behalf of the Alliance Defending Freedom (ADF) in their Supreme Court case involving a Christian student’s claim against their university. Many AHA supporters have taken to social media to question this unlikely partnership between two very different organizations. And indeed, the AHA did not expect to be filing such a brief a year ago when it was on the opposite side of ADF in American Legion v. American Humanist Association.

However the case in question here, Uzuegbunam v. Preczewski presents a starkly different issue than American Legion. First, the matter revolves around the Free Exercise Clause and the Free Speech Clause of the First Amendment, not the Establishment Clause. Second, the court is poised to obliterate one of the key enforcement tools of the First Amendment. Doing so will directly impact future cases brought by ADF, AHA, and any other organization or individual seeking to vindicate their First Amendment rights, whether it be under the Free Exercise Clause or the Establishment Clause.

In ADF’s case, Chike Uzuegbunam, a Christian student, was denied the ability to use a designated free-speech zone to distribute literature and speak to other students at Georgia Gwinnett College, a public institution in Lawrenceville, Georgia. Uzuegbunam was cited for “open air speaking,” not covered under permissive speech in the school’s freedom of expression policy, and “disorderly conduct” under the college’s student code of conduct. This denial occurred even though he properly reserved the space pursuant to the school’s policy.

The school’s actions against Uzuegbunam deterred another student, Joseph Bradford, from using the free-speech zone for fear of similar treatment. Both students filed a claim seeking a declaration and injunctions against the freedom of expression policy and the student code of conduct, and nominal damages for the violation of their First Amendment rights. In response, the college changed its policies, striking the challenged portions. The court then dismissed the case in full, determining all claims were “moot,” meaning there was no longer any issue for Uzuegbunam to litigate since the policies at issue no longer existed.

The problem that concerns the AHA is the dismissal of nominal damages. These damages are, as the name implies, nominal—typically an award between $1 and $10. Despite this low value, these damages tend to be the only form of relief for a First Amendment violation.

The lifespan of a First Amendment claim goes through many trials and tribulations involving claims for equitable and monetary relief. Equitable relief is asking a court to order the opposing party to stop doing whatever it was that gave rise to the violation—an injunction—or to state that the conduct does in fact violate a right—a declaration. Monetary relief is asking the court to order compensation for a violated right that results in some measurable loss—typically compensatory relief. The important difference is that equitable relief can be “mooted.” If that action or conduct is stopped before an injunction or declaration is given, there’s no reason for either. In contrast, monetary relief isn’t mooted because the measurable loss exists regardless of whether the action or conduct does. However, qualified immunity bars monetary relief from public officials and employees.

Enter the problem: Religion Clause violations rarely produce actual damages and often stem from easily mootable laws. As such, what relief can someone claim for a First Amendment violation by a government or public entity? This is where nominal damages play a pivotal role. Nominal damages are predominantly considered non-mootable even where injunctions and declarations are unavailable. They are also not considered monetary relief as they are not based on a measurable loss nor do they compensate a claimant. As such, they survive regardless of who violated your rights and regardless of whether they’ve ceased the act or conduct causing the violation.

For many, this may seem like a non-issue. If there is no issue anymore, why should a claim continue through the litigation process? But now apply this to Uzuegbunam: a student is denied the ability to exercise their First Amendment right, whether it is promoting theistic or nontheistic religion. The student files a claim, paying all of their necessary fees and/or attorney’s fees. The school answers with a motion to dismiss and a motion for summary judgement. The student files responses defending the claim, again paying the required fees. Then, the school changes its policies and the entire claim is dismissed, with no ability to recoup what you’ve already invested. Practically speaking, such a scenario would deter most from pursuing a claim for their First Amendment rights. This example can be applied to children in public schools forced to pray or be involved in a religious exercise, requirements that one swear on a religious text to speak at a town hall, denying atheist prisoners the right to form groups, or even to the censorship of theistic, nontheistic, or atheist speech and practice.

That’s precisely why the AHA filed its amicus brief on behalf of ADF. First Amendment rights protect not just “mainstream” religions, but all theistic and nontheistic beliefs. Without the guarantee that a right can be vindicated, the ability to protect those rights will be detrimentally impeded and the government will be given a “free pass” to violate those rights. This detriment will only be amplified for the nonmainstream religions and worse still for the nonreligious. As such, the AHA views ADF’s case as the necessary momentum to prevent the Supreme Court from taking away nominal damages.

As AHA Legal Director Monica Miller aptly notes in the amicus brief, “if this court affirms, the Supreme Court will be telling Congress, the executive branch, every state, and every municipality in our nation that it is proper to experiment on our liberties by passing laws that violate the First Amendment.” Further, Miller stresses, “In today’s political climate—fueled by a global pandemic and the death of at least 200,000 Americans, an economic recession, widespread racial injustices, record-setting fires, and now the heartbreaking passing of iconic Associate Justice Ruth Bader Ginsburg—the message sent by such a Supreme Court ruling will cause more damage to our country than the ruling itself.”