Defending the faithful: speaking the language of group harm in free exercise challenges to counterterrorism profiling.

• Author: Hussain, Murad

INTRODUCTION I. PROFILING UNDER UNCERTAINTY A. Cultural Profiling in the Counterterrorism Context: Tabbaa v. Chertoff B. The "Rationality" of Cultural Profiling II. THE GROUP-SUBORDINATING EFFECTS OF CULTURAL PROFILING A. Intragroup Harms B. Intergroup Harms 1. Ratifying Animus and Encouraging Stereotypes 2. Discrediting Civic Participation III. THE DOCTRINAL GAP BETWEEN EQUAL PROTECTION AND THE FIRST AMENDMENT A. Equal Protection Doctrine's Inapplicability to Cultural Profiling B. The Free Speech Clause's Indifference to Group Harms C. The Free Exercise Clause's Convergence with Equal Protection Doctrine 1. The Evolution of Free Exercise Doctrine 2. Obstacles to Challenging Cultural Profiling Under Smith D. First Amendment Strict Scrutiny's Failure To Account for Group Harms IV. TOWARD A COHERENT THEORY OF HYBRID SITUATIONS A. Prior Attempts at Understanding Hybrid Situations B. Grounding Hybrid Situations in Yoder and the Jehovah's Witness Cases C. Essential Elements of a Hybrid Situation D. "Hybridity" Versus "Antisubordination" CONCLUSION [W]hat I feel like saying is, "Sir, prove to me that you are not working with our enemies." (1) That's the whole question of my existence right now.... Do we have rights? I'm a taxpayer and I'm an American, and I want to be treated like one. (2) INTRODUCTION

To be an American is to live with a hybrid identity. We each reside at the intersection of various "cultures"--self-defining communities of shared beliefs, practices, and histories that offer their members "maps of meaning" by which to chart worthwhile lives? Even when claiming membership in a dizzying array of racial, ethnic, religious, and other social cultures, we all also share a national civic culture. This civic culture is founded on core values of "individualism, egalitarianism, and tolerance of diversity," as expressed through our Constitution, laws, and mechanisms for the creation of national meaning such as political participation, public discourse, and entrepreneurship. (4) Unlike ascriptive group identities based on passive pigmentation or phenotype, "cultural" group identity can be viewed through the lens of performativity, whereby an individual can affiliate herself with a community by embracing traits and conduct that continually recommit her to membership within it. (5) Thus an American woman of African descent might express her "black" identity by wearing cornrows. (6) Parents from Germany might teach their children to celebrate their linguistic heritage. (7) And a citizen who calls herself Muslim might do so only because she can also say she "practices" Islam by constructing her identity through religious signifiers such as head coverings, hairstyles, and acts of congregation or association. (8)

During times of domestic tranquility, our paeans to multiculturalism acknowledge this performativity by encouraging ethnic and religious minorities to participate in civic culture as a way to embrace their "American" identity, develop common cause with the rest of the polity, and cultivate empathy for their own social heritage. Yet when our nation faces external threats, fear often obscures the common ground that people of diverse backgrounds share. Cultural minorities may find themselves under suspicion, their diversity stigmatized as disloyalty to the civic culture under siege from without. Indeed, public and private actors throughout American history have presumed the disloyalty of cultural minorities out of fear that their distinctive expressions of religious and ethnic identity masked threats to the Republic's survival. This distrust spawned the mass detentions of pacifist Quaker colonists during the Revolutionary War, (9) the nineteenth-century nativist characterization of Catholics as "human priest-controlled machines" dedicated to democracy's destruction, (10) the roundups of Eastern European immigrants during the 1919 Palmer raids, (11) the World War II-era lynching of Jehovah's Witnesses for their refusal to salute the flag, (12) and the internment of Japanese-Americans. (13)

History has repeated itself in the years following the attacks of September 11, 2001. Many Americans view Islam and Muslims as a direct threat to civic culture: one in four support the registration of every Muslim's home in a federal database, and two in five support the use of Muslim identity as an automatic trigger for increased government scrutiny such as special identification cards and preflight boarding interrogations. (14) At times, the federal government has reinforced these perceptions that Muslim group identity should be viewed as a valid proxy for terrorist association. In the weeks after the attacks, federal dragnets targeted thousands of immigrants from Muslim-majority countries, (15) detaining some for as long as five years. (16) None of those detained appears to have been prosecuted for terrorism-related crimes, (17) leading some to conclude that the government engaged in widespread, unjustified racial, ethnic, or religious profiling. (18)

Recognizing the flaws of profiling individuals on the basis of ascribed group labels, the head of the Office for Civil Rights and Civil Liberties at the Department of Homeland Security (DHS) has noted that counterterrorism profiles should instead be based upon "behavior, concrete action, [and] observable activities." (19) Recently, the Transportation Security Administration (TSA) announced plans to expand its use of "behavior-detection officers" at airports (20) and has already employed these officers, air marshals, and other federal agents to scrutinize metropolitan mass transit passengers for "suspicious" behavior. (21) Despite this laudable shift away from targeting passive racial, ethnic, or religious status, even "conduct-based" profiling can disproportionately burden a single minority group by targeting conduct that is significantly correlated with membership but is in no way inherently indicative of wrongdoing. For example, the TSA promulgated a new policy of potentially subjecting any airline passenger wearing a "head covering" to additional inspection if security officers "cannot reasonably determine that the head area is free of a detectable threat item." (22) The agency's own travel advisories recognize the potential for a disparate impact where the scrutinized conduct is not just coincidentally correlated with group membership, but is in fact expressive of membership in or solidarity with a cultural community. (23)

This Note defines "cultural profiling" as law enforcement policies that specifically target expressions of cultural identity as proxy criteria thought to be correlated with criminality, terrorist connections, or other subversive propensities. Although "profiling" often implicates Fourth Amendment concerns, this Note uses the term more broadly to describe any policy of imposing adverse state scrutiny upon a person, even absent searches or seizures, solely on the basis of a given proxy. Profiling could thus also include such decisions as whether to conduct a tax audit, permit a passenger to board an airplane, or obstruct a banking transaction. And while many have critiqued the use of profiling as a cover for affirmative animus, this Note will argue that it remains no less problematic when good faith efforts to catch the nefarious reveal the government's indifference to ensnaring the innocent. (24)

As federal and state law enforcement increasingly coordinate their homeland security efforts, (25) cultural profiling that exploits religiously motivated activity as a proxy for terrorist threats could inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Yet those seeking judicial redress from such burdens may encounter significant jurisprudential obstacles. The Supreme Court's prevailing interpretation of the Fourteenth Amendment's Equal Protection Clause disfavors the state's distribution of "burdens or benefits" on the basis of certain suspect classifications. (26) A Muslim profiled by federal agents because of her perceived racial, ethnic, or religious status would have a cognizable claim under the equal protection component of the Fifth Amendment's Due Process Clause. (27) But if the government profiled her on the basis of her religious conduct, equal protection doctrine would not readily support her claim of adverse treatment--even if that conduct defined her group identity. (28)

The First Amendment would therefore seem a more plausible avenue for relief from cultural profiling, because on its face it privileges one example of cultural performativity: the free exercise of religion. After the Supreme Court applied the Free Exercise Clause to the states, it spent considerable energy protecting Jehovah's Witnesses and others from the effects of private animus and governmental apathy. This group-protective approach reached its peak in Wisconsin v. Yoder, (29) where the Court exempted Amish parents from a compulsory education law that eroded their ability to propagate their distinctive social culture, because it found the Amish community just as worthy of judicial protection as individual Amish beliefs and practices. In 1990, however, Employment Division v. Smith brought free exercise doctrine squarely into convergence with the "anticlassification" orientation already guiding equal protection and freedom of speech jurisprudence. (30) Smith held that plaintiffs cannot use the Free Exercise Clause alone to challenge incidental burdens upon their religious exercise that result from neutral laws of general applicability. (31)

Even when a judge might conclude that a given policy of cultural profiling does trigger strict scrutiny under Smith's rule, religious freedom doctrine currently suggests no easy way to enunciate concerns about group-based disparate treatment or the relationship between individual expression and group identity. As a result, judges may weigh the costs and benefits of cultural profiling on a purely...