The many layers of Landor

In recent years, the Supreme Court’s late June grand finale, headline-grabbing, crash-the-SCOTUSblog-live-feed decision-dumps have generally included salient church-state or religious-liberty cases. In 2021, for example, a unanimous court sustained, in Fulton v. City of Philadelphia, a closely watched religious-freedom claim involving adoption services, but – to the expressed-at-great-length frustration of three concurring justices – declined to revisit or repent of its controversial Smith doctrine. (More on this below.) In 2022, there was Kennedy v. Bremerton School District – the “praying-football-coach case” – and the justices’ announcement that they had, in fact, “long ago abandoned” another controversial doctrine, the so-called “Lemon test.” And last year, on the final day of the term, a majority in Mahmoud v. Taylor rejuvenated the court’s long-neglected affirmation in the 1972 case of Wisconsin v. Yoder that parents have a fundamental right to direct the religious education and formation of their children. The most recent court term was a bit different. Yes, the decision in the docket’s one religious-liberty case, Landor v. Louisiana Department of Corrections, came down in late June – later than most court-watchers expected, actually, since it was argued in November – but it wound up having more to do with federalism and funding than with faith. A case that was widely (and by this author) expected to deliver a straightforward, consensus win to a Rastafarian prisoner whose statutorily guaranteed religious rights were badly and brazenly violated instead resulted in an ideologically split debate over one of the oldest questions in American constitutional law. As it turned out, Landor has many layers. On the surface, the question presented seems prosaic, even pedestrian: Does the federal Religious Land Use and Institutionalized Persons Act of 2000 authorize money-damages lawsuits against state officials personally for violating the statute? (This author joined an amicus curiae (“friend of the court”) brief contending that it does.) The justices had already held, unanimously, that such lawsuits are authorized by the same “appropriate relief” language in a similar federal law, the Religious Freedom Restoration Act of 1993. To preclude such remedies in RLUIPA cases brought by prisoners would seem to incentivize institutional indifference and undermine the statute’s power and purpose. In Landor, for example, the prison guard who, knowing full well about Damon Landor’s legally protected religious commitment to growing long dreadlocks, handcuffed him to a chair and shaved him bald, flagrantly flouted the statute. And yet, Justice Neil Gorsuch, writing for the six “conservative” justices, concluded that the personal-money-damages remedy available under RFRA is not available under RLUIPA, despite the shared “appropriate relief” provisions and notwithstanding that both laws were enacted to protect religious liberty from officially imposed burdens. The latter law, the court reasoned, unlike the former, relies on Congress’ so-called “spending power” and, to paraphrase Robert Frost, that makes all the difference. As Gorsuch reminded us, it was debated from the outset of our constitutional experiment whether Congress’ power to “provide for the . . . general Welfare of the United States” – in other words, to spend money – includes a general power to regulate in pursuit of that broad end. Such an interpretation, of course, would have swallowed up the idea that our national government is one of limited and enumerated powers and was thus correctly rejected. Over the years, it has become established that Congress’ power to spend reaches farther than its power to regulate, and so laws based on the spending power are more like deals than demands. The national government can and does attach conditions to the funds it disburses, and these conditions, in effect, enable Congress to do indirectly what it may not do directly and to engage in what I described two decades ago, in an inexcusably lengthy law-review article, as “regulation by contract.” Of course, this kind of thing happens all the time. Perhaps the leading and best-known case is South Dakota v. Dole, where the court upheld a law that conditioned federal highway funds on states’ raising the drinking age to 21. Even if Congress cannot force a state to make such a change, it is generally (but not entirely) free – to borrow a word from my colleague, law professor Randy Kozel – to use its largesse as leverage. But isn’t that what Congress did with RLUIPA? Louisiana’s prisons receive federal funds on the conditions that they operate in ways that do not impose unnecessary “substantial burden[s]” on prisoners’ “religious exercise” and that they agree to be sued if they fail. That is the “deal.” So, why did the court rule that there is no such remedy for the wrong done to Mr. Landor? (He was, remember, bound and shaved, despite earlier judicial rulings protecting his religious practices.) Because, the majority insisted, RLUIPA’s conditional-spending “deal” is between Congress and the state prisons, not the particular officials who bound and shaved Mr. Landor and whom Landor sued for damages. Those officials did not receive the funds and they did not agree to be, and so cannot be, sued under the federal statute. Landor lost, not because his religious freedom was not infringed and not – contrary to some commentators’ charges – because the justices are only concerned about Christian claimants. The positions of the majority and the dissenters did not track disagreements about the importance of religious exercise but instead reflected well known differences over federal power, state prerogatives, and constitutional structure. The layers go deeper, though. As the Landor majority acknowledged, more than 20 years ago, in a cased called Sabri v. United States, the court had unanimously rejected a constitutional challenge to a federal criminal prosecution under a bribery statute with the ominous heavy-metal designation of “Section 666.” Basim Omar Sabri was a real-estate developer who had bribed a member of a local government body that had received some federal money. However, the statute didn’t require the government to prove that he had received those funds or that his bribe had any connection to them. Like the prison guard who abused Landor, he had not made any deal or contract with the federal government. But, if Sabri can be prosecuted for entirely local bribery under a federal criminal statute, then why can’t Landor seek RLUIPA damages against a Louisiana corrections officer? In both cases, it would seem, the conditions are following the funds. Landor is not like Sabri, Gorsuch explained, because “Congress may punish people who seek to sap federal funds from their intended beneficiaries.” However, “[s]uits against nonconsenting parties . . . do not safeguard from graft the federal funds Congress distributes pursuant to its spending power.” Perhaps not. On the other hand, it seems that deterring egregious human-rights violations in state prisons receiving federal funds is every bit as related to the integrity of federal programs as is prosecuting corrupt developers whose wrongs don’t involve or implicate such funds. Or, perhaps (as this author argued in an amicus brief that was unanimously rejected) Sabri was wrongly decided, or is at least inconsistent with the federalism commitments of the current majority. In July, the justices reversed and sent back to the U.S. Court of Appeals for the 8th Circuit for further review, in light of Landor, a local-arson case out of Arkansas, where the government relied heavily on Sabri. Which might raise yet another question: Why was Landor a spending power case, and why is RLUIPA a spending power statute, at all? Why didn’t Congress simply enact a statute that, like many other civil-rights laws, directly prohibits state officials from violating constitutional rights and, as it did with RFRA, authorize personal money-damages suits against those who do so? This question’s answer takes us even further back. In 1997, in a case called City of Boerne v. Flores, a different, but also federalism-minded, court majority held that RFRA went beyond Congress’ power to “enforce” the 14th Amendment’s due process and equal protection clauses by imposing on state and local governments a more protective religious-freedom rule than the one the court had said was constitutionally required under that amendment. Congress had to rely on the spending power, then, as a basis for RLUIPA; it was forced to do indirectly – by a “deal,” not a demand – what the Boerne said it could not do directly. The City of Boerne case was and remains contested among scholars, many of whom insist that Congress’ power to “enforce” the 14th Amendment’s rights protections against state officials should not be cabined by the court’s own interpretations of those protections and that Congress should have more authority to expansively shield them. In any event, there is still (at least) one more, deeper layer to Landor. Congress enacted RFRA, and then RLUIPA, because near-unanimous majorities at that time believed that the justices had incorrectly interpreted the First Amendment’s free exercise clause in the 1990 Employment Division v. Smith case, which said that religious exemptions are not constitutionally required from generally applicable and nondiscriminatory laws. Critics of the Smith ruling contended then, and contend now, that it wrongly reduced First Amendment protections for religious practices. (The author’s view of Smith is less critical.) Without Smith, (arguably) neither RFRA’s court-correction nor RLUIPA’s spending power workaround is necessary, because the statutes’ religion-friendly standard would be provided by the Constitution itself. As we saw in the 2021 Fulton case, at least three justices, and possibly more, believe that Smith should be overruled. Will, and should, the federalism concerns that convinced six justices in Landor stand in the way of such a shift? Landor started as a case about the remedies that are available under a federal religious-liberty statute. It became a case about the balance of, and boundary between, federal and state authority. And, as such, it points toward still unresolved questions about the respective roles of courts and legislatures in our crucial, contested experiment in religious freedom. Recommended Citation: Richard Garnett, The many layers of Landor, SCOTUSblog (Aug. 26, 2026, 10:00 AM), https://www.scotusblog.com/2026/08/the-many-layers-of-landor/