RELIGIOUS LIBERTY INTEREST CONVERGENCE.

• Author: Uddin, Asma T.

TABLE OF CONTENTS INTRODUCTION 87 I. POLARIZATION OF RELIGIOUS LIBERTY IN THE UNITED STATES: KEY DRIVERS 89 A. End of White Christian America 89 B. Tribalization of American Politics and Muslim-Christian Relations 91 II. POLARIZATION OF RELIGIOUS LIBERTY IN THE UNITED STATES: CHRISTIAN CONSERVATIVES VERSUS MARGINALIZED MINORITIES 93 A. Conservative Christians and Sexual Minorities 95 B. Conservative Christians and American Muslims 96 1. Deference to Executive Authority 99 2. Muslims as National Security Threats 102 3. Beyond the Courts: Religious Liberty Dissonance in Politics 104 III. INTEREST CONVERGENCE THEORY 107 A. Interest Convergence as Explanation 111 1. Hernandez v. Texas 111 2. Plyler v. Doe 115 3. Grutter v. Bollinger 117 B. Interest Convergence as Political Strategy 120 C. The Limitations of Interest Convergence 121 1. Remedies Are Short Lived 121 2. Interest Convergence Requires Concessions 122 3. Ideology Can Outweigh Interests 123 IV. RELIGIOUS LIBERTY INTEREST CONVERGENCE 123 A. Conservative Justices and the Interests of White Conservative Christians 125 1. Empirical Evidence 125 2. Circumstantial Evidence 128 B. Religious Liberty Interest Convergence as Explanation: Tanzin v. Tanvir Versus Trump v. Hawaii 130 1. Tanvir's Story 131 2. The Legal Arguments 134 a. Implications for National Security 134 b. The Nature of RFRA 135 c. The Court's Ruling 137 3. Conservative Christians' Interests at Stake in Tanvir 138 a. Disincentivize Government Limits on Christian Religious Claims Related to Changing Sexual Norms 140 b. Bolster the Legal and Cultural Status of Religious Liberty 141 c. Ameliorate Political Tribalism Broadly and Around Religious Rights Specifically 146 d. Promote an American Brand Instructive to Other Countries 148 e. Protect Religious Liberty in Times of Emergency 149 f. Contrasting Results in Trump v. Hawaii 153 i. Strong Disincentives 153 ii. Weak Socio-Political Incentives 156 C. Religious Liberty Interest Convergence as Political Strategy 157 D. Religious Liberty Interest Convergence as Constitutional Justification 159 V. THE LIMITATIONS OF RELIGIOUS LIBERTY INTEREST CONVERGENCE 161 A. Remedies Are Short Lived 161 B. Interest Convergence Requires Concessions 162 C. Ideology Can Outweigh Interests 163 CONCLUSION 166 INTRODUCTION

America is becoming increasingly polarized between conflicting cultural and political perspectives. Americans' partisan affiliations are morphing into broad identities that even include factors like what they eat and drive, where they live and shop, and their race or sexual orientation. Unfortunately, this grouping has also affected religious communities and religious liberty, so that white, conservative Christians (and their religious claims) are associated with the Republican Party, and the claims of religious minorities (particularly Muslims) are associated with the Democratic Party. This Article aims to identify potential convergence points for religious liberty lawyers seeking to build bipartisan and cross-ideological support for religious freedom, with specific attention to the Muslim-Christian divide.

Professor Derrick Bell's theory of "interest convergence" helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. Bell used interest convergence theory to analyze judicial decisionmaking during the civil rights movement. Other scholars have built upon Bell's original thesis about Black people's rights by extending interest convergence to other racial minorities. This Article is the first to consider the implications of interest convergence not just for religious minorities but specifically the status of religious minorities in today's politicized religious liberty landscape. In so doing, it aims to formulate a theory of "religious liberty interest convergence."

Specifically, this Article applies Bell's framework to two recent Supreme Court cases. The Article uses interest convergence theory to explain why the conservative Christian Justices (1) of the U.S. Supreme Court ruled against Muslim claimants in Trump v. Hawaii (2) but for Muslim claimants in Tanzin v. Tanvir? Both cases positioned Muslims as national security threats and appealed to the conservative Justices' predilection for deference to the executive branch--but they led to two very different results. In Hawaii, the conservative Justices upheld the Trump administration's executive order blocking citizens from six majority-Muslim countries from entering the United States (dubbed by many as the "Muslim ban"). (4) The Court held that in matters of immigration and national security, it must defer almost completely to the executive branch. (5) In contrast, in Tanvir, the conservative Justices joined with their liberal colleagues in holding for three Muslim men seeking money damages against FBI agents who pressured the men to spy on their Muslim communities. (6) This result ensued even though a key part of the government's argument was that provision of money damages would compromise national security. (7)

This Article proceeds in five Parts. Parts I and II provide the requisite background and analytical framework. Part I lays out the various facets of religious liberty polarization in the United States, including key drivers of these divides. Part II breaks down the primary battlefronts in the religious liberty culture war. Generally, the war pits conservative, white Christians against a range of marginalized minorities. The political and legal discourse, however, is preoccupied with the more specific conflicts between Christians and sexual minorities (addressed in Section A), and Christians and Muslims (addressed in Section B). The conflict with sexual minorities is defined here as being centered on cases that involve Christians' objections to contraception, abortion, and same-sex marriage. The conflict with Muslims stems from conservative Christian Justices' perceived favoritism for Christian claimants over Muslim ones.

Part III outlines Bell's interest convergence theory and how other scholars have used it to both explain rights-protective decisions at the Supreme Court (addressed in Section A), and develop strategies for political coalition-building (addressed in Section B). This Part also describes Bell's thinking about the limits of interest convergence in effectuating lasting change.

Part IV presents the central proposition of the Article. It offers possible strategies for diffusing tension by applying Bell's interest convergence theory to religious liberty. This Part uses the theory to explain the contrasting results in Hawaii and Tanvir. It assesses both cases against the backdrop of the current politicized religious liberty landscape and the conservative Justices' apparent alignment with the conservative faction of that culture war. Based on this assessment, Part TV offers several areas of interest convergence between the conservative Justices and the Muslim men in Tanvir and then argues that many of those same interests were not at stake in Hawaii. It also uses those convergence points to chart a path forward for Muslim-Christian coalition-building on religious liberty. Finally, this Part considers the unique features of the religious liberty tradition that contribute to the viability of religious liberty interest convergence vis-a-vis Bell's pessimism about the long-term success of racial interest convergence.

Part V concludes with an assessment of the project's limitations. It gives special attention to the strong ideological divergences between conservative Christians and Muslims in America.

1. POLAEIZATION OF RELIGIOUS LIBERTY IN THE UNITED STATES: KEY DRIVERS

   There are two key drivers of today's religious liberty polarization, particularly the polarization between Muslims and conservative Christians. The first involves significant demographic changes that have resulted in what one prominent pollster calls the "[e]nd of [w]hite Christian America." (8) The second is the country's growing tribalization on not just policy positions but also a wide range of other preferences.

   1. End of White Christian America

      Many white, conservative Christians (Protestants in particular) (9) believe that the country is not just leaving them behind but also repudiating many of their core beliefs. Three shifts are contributing to this sense of anxiety.

      First, for the first time in U.S. history, white racial dominance in terms of numerical representation is on the decline. (10) In 1965, white Americans constituted 84 percent of the U.S. population. (11) Now, they are projected to be a minority by 2055 according to Pew, (12) or by 2044 according to the U.S. Census Bureau. (13) Second, also for the first time in U.S. history, white Protestant Christians are currently a minority in America. (14) A 2017 Public Religion Research Institute (PRRI) study found that white Protestant Christians constitute only 43 percent of the U.S. population. (15) In 1996, white Christians still made up two-thirds of the population. (16) Among white Protestants, white Evangelicals have also seen a precipitous drop in their number. In the 1990s, white Evangelicals constituted 27 percent of the U.S. population; today the number is somewhere between 17 and 13 percent. (17)

      Third, the demise of white Protestant America has brought with it an end to Protestant dominance over American culture and institutions. Not only is Christianity declining, but so is religion overall. (18) More and more Americans are religiously unaffiliated (the so-called "nones"). (19) In 2019, the percentage of nones became roughly the same as the percentage of Evangelicals or Catholics. (20) By 2016, the nones already constituted the nation's largest "religious" voting bloc. (21) The massive shift signals growing discontent with organized religion generally. Altogether, this has precipitated an identity crisis that has generated tremendous anger...