Later in the week I'll have a (highly critical) FindLaw column up on today's decision in Ashcroft v. Iqbal. For now I'll just note a small piece of the opinion that I found jarring. The majority says that it is assuming without deciding that there is a Bivens action for religious discrimination in violation of the First Amendment. Bivens (for those of you who never took or forgot some of what you learned in federal courts) is a Supreme Court decision that permits lawsuits against the federal government for civil rights violations; a federal statute (42 U.S.C. sec. 1983) provides a cause of action against state officials for such violations but Congress never enacted a similar statute for violations by federal officials; Bivens is a judge-made cause of action that fills this gap, and it is generally interpreted to be the equivalent of section 1983. Although the legitimacy of Bivens might have been subject to question in 1971, when it was decided, by now Congress has clearly acquiesced in it.
Thus it was quite a shock to read the Court treating Bivens as the sort of discretionary relief that it could cut back on at will. Justice Kennedy cited Bush v. Lucas for the proposition that the Court has "declined to extend Bivens to a claim sounding in the First Amendment." But in Bush v. Lucas, the Court declined to extend Bivens because Congress had created a highly specific remedial scheme for federal employees. The case is hardly precedent for the proposition that where Congress has provided no remedy at all for some constitutional violation, the Court is free--as the creator of Bivens--simply to withhold a Bivens remedy.
Indeed, think about Iqbal itself in the event that the Court's suggestion were taken up. Iqbal could then sue for race and national origin discrimination but not for religious discrimination in violation of his First Amendment rights. Could he nonetheless sue for religious discrimination in violation of his right to equal protection? That depends on whether religion is a "suspect classification" for equal protection purposes. I have always assumed that it is, but the question is not especially important because the free exercise clause independently requires the same compelling interest test for religious discrimination.
But under the Court's suggestion, we would have to disentangle equal protection and free exercise. If equal protection does cover religious discrimination, then the Court's suggestion is without any practical consequence. That, however, is a reason to think that the Court would treat religion as not suspect for equal protection purposes. But is there really any rationale for saying that there should a cause of action for federal denials of equal protection even though there is no express equal protection clause applicable to the federal government, but there should be no cause of action for federal violations of the First Amendment? What kind of textualism is that?
Posted by Mike Dorf