Academic journal article Missouri Law Review

The Role of Invidious Discrimination in Free Exercise Claims: Putting Iqbal in Its Place

Academic journal article Missouri Law Review

The Role of Invidious Discrimination in Free Exercise Claims: Putting Iqbal in Its Place

Article excerpt

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


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.


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. …

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