In the aftermath of September 11, 2001, the government has adopted a number of counterterrorism measures that burden Muslim-Americans’ religious practices. Murad Hussain’s Note attempts to overcome the doctrinal obstacles facing individuals’ pursuit of legal claims against these measures. Because of the deference granted the government when it alleges national security interests, the immediate effects of this approach may be limited. Over time, however, Hussain’s doctrinal strategy, by alerting courts to the kinds of group harms that government action can generate, may persuade them to place more value on Muslim individuals’ religious exercise. To the extent that courts are able to conceptualize the harms at issue differently, they may be less willing to simply accede to governmental claims of a compelling state interest and more willing to counterpoise them in the balance against the forms of religious expression at stake.

In attempting to find redress for those plaintiffs whom the government, in furtherance of its counterterrorism policies, has subjected to burdens upon religious activities that express their Muslim identity, Hussain deftly circumnavigates the shoals of the Supreme Court’s decision in Employment Division v. Smith. Justice Scalia, writing for the majority in Smith, contended that the Free Exercise Clause of the First Amendment does not require courts to grant exemptions from neutral laws of general applicability simply because these laws burden religious practice. Explaining how this position could be reconciled with the Court’s precedents, Justice Scalia observed that the Court had required such exemptions only when another right—in addition to free exercise—was implicated. It is, Hussain argues, through these kinds of “hybrid claims”—and, in particular, claims combining free exercise with free speech—that Muslim plaintiffs may most effectively articulate the interests that should persuade the government to refrain from imposing restrictions upon their religiously motivated activities. This strategy’s efficacy may, however, inhere less in its ability to affect outcomes immediately than in its capacity to encourage shifts in judicial outlook over the longer term.

I. Strict Scrutiny Post-Smith

Subsequent to Smith, scholars, courts, and even Congress attempted to discern a variety of exceptions to the principle that, “if prohibiting the exercise of religion results from enforcing a ‘neutral, generally applicable’ law, the Free Exercise Clause has not been offended.” Some circuits have, therefore, insisted that the “ministerial exception” to Title VII and similar statutes—which exempts religious organizations from complying with civil rights mandates in their treatment of ministerial employees—survives Smith. In justifying this stance, judges have invoked the difference between individual and institutional religious liberty. Many courts have also deemed the prison context exceptional and applied the pre-Smith standard derived from Turner v. Safley and O’Lone v. Estate of Shabazz. Finally, in the Religious Freedom Restoration Act of 1993, Congress itself tried to require that courts use strict scrutiny in examining the constitutionality of burdens placed upon religious practice. Although the Supreme Court determined that Congress had exceeded its constitutional authority in applying RFRA to the states, the law remains in force with respect to federal actors. In addition, Congress again assayed to regulate local restrictions on religion through its 2000 Religious Land Use and Institutionalized Persons Act.

Efforts to read widely the scope of the “hybrid claims” left standing by Smith reflect a similar dissatisfaction with the overall message of that case, a dissatisfaction with which I sympathize. At the same time, however, it may not be necessary in all the cases that Hussain describes—nor effective in the terrorism context—to resort to the construction of hybrid claims. Although the majority opinion in Smith insisted on the validity of neutral, generally applicable laws despite the burdens they might impose on religious exercise, the subsequent case Church of the Lukumi Babalu Aye v. City of Hialeah suggested that the Court would at least somewhat rigorously review laws that were not neutral or not generally applicable.

Some of the examples that Hussain employs could be interpreted as involving government targeting of Muslim religious practices or religious worship and would therefore seem to fail to meet the standards of neutrality and general applicability. At least one account of an airport practice of screening headgear akin to what he hypothesizes indicates disparate treatment of attire associated with different religious traditions. As Martha Minow recently summarized the narrative, “a Catholic nun ‘covered from head to toe’ passed through an airport security checkpoint without a body search, while Enaas Sansour, a seventeen-year-old Muslim girl wearing a headscarf, was forced to remove her scarf in front of men, contrary to her religious views.” Under the reasoning from Church of the Lukumi, this differential deployment of screening in the two religious contexts—or even in religious and nonreligious contexts—would lead to an inference of government targeting and lack of general applicability. Moreover, even assuming a situation in which the government required the removal of toupées and baseball caps equally with headscarves, Muslims articulating a burden upon their religious practices could appeal statutorily to RFRA and its pre-Smith standard for reviewing such claims against federal agents. Thus, some important preexisting doctrinal resources may be available for the plaintiffs who attract Hussain’s concern.

Nevertheless, as Hussain accurately observes, the standards for reviewing free exercise claims articulated in Smith and Church of the Lukumi remain inadequate for contending with the problem of government action that is either motivated in part by implicit bias, or based upon vague intelligence the government has gathered and invokes as the reason for stopping Muslims at the border. The resort to hybrid claims is designed to improve the situation by encouraging courts to use strict scrutiny when they examine the burdens placed upon those religious practices that could also be seen as protected through another constitutional clause.

Courts have, however, in the aftermath of September 11, been notoriously willing to affirm government actions taken in the name of national security even when they deploy a strict scrutiny standard. The district and circuit court opinions in Tabbaa v. Chertoff—a case Hussain discusses that involved American citizens re-entering the United States from a Muslim conference in Canada—provide striking examples of this tendency. The district court, in a move that the Second Circuit affirmed, did, in fact, apply strict scrutiny in evaluating the plaintiffs’ claims under RFRA—but still ruled in favor of the government. Granting substantial deference to the government with regard to its role in policing the country’s boundaries, the district court maintained that “the IDSO [Intelligence Driven Special Operation] inspections were the least restrictive means of furthering the government’s [compelling] interest in protecting its borders.” Similarly, according to the Second Circuit’s opinion, “given the intelligence the government received, subjecting . . . [c]onference attendees to enhanced processing at the border—including fingerprinting and photographing—was a narrowly tailored means of achieving the government’s compelling interest in protecting against terrorism.”

If strict scrutiny itself does not entail more rigorous examination of the explanations that the government provides for its actions in this and similar situations, the prospect of outcomes favoring civil liberties appears rather bleak. National security, guarding against terrorism, and the protection of the borders may be construed as compelling state interests even if plaintiffs construct hybrid claims, and tailoring that is narrow in name alone may be accepted by the courts. Let us not forget that one of the most reviled results in Supreme Court jurisprudence—that in Korematsu v. United States—emerged out of an application of strict scrutiny.

II. Group Harm and Group Construction

In light of these doctrinal obstacles, the efficacy of Hussain’s argument would appear to lie more in its normative entailments, and in its suggestion that presenting hybrid claims might ultimately have a particular kind of persuasive impact upon courts. According to Hussain, highlighting the communicative aspect of religious practices through alleging violations of both free exercise and free speech will better allow courts to recognize the stigmatic effects upon Muslims that the government’s counterterrorism efforts may generate. Stopping attendees of a Muslim conference at the border might suggest to the larger American community a lack of respect for the religious exercise and expression in which these Muslims were engaged. The stigma thereby cast upon the entire group will then be felt again by its other individual members. Presenting hybrid claims could, under this account, eventually afford judges greater insight into the harms occasioned by the governmental action at issue and encourage them to weigh these in the balance against the national security interests that they invoke.

As I have previously contended, courts have often been more inclined to cognize individuals’ claims to freedom of religious practice when these claims are presented against the backdrop of a religious collectivity, a context in which the meaning of individual acts of free exercise becomes more apparent. Encouraging judges to focus on the expressive function of religious practices through combining free exercise with free speech arguments as Hussain suggests could further judges’ appreciation of the significance and signification of this religious exercise. Hussain thus provides a doctrinal approach that might enhance the likelihood that, in the long term, courts would place greater value on freedom of religious practice. At the same time, he highlights the importance of considering the impact of governmental conduct not simply on the individuals at issue in the particular case but also on the religious group as a whole and on its other members.

Defining the relevant religious group without simply exalting a majority within it may, however, present some difficulties. In stating preconditions for the articulation of hybrid claims, Hussain maintains that the burdened conduct should be religiously motivated and that the governmental action should entail group harm. Hypothesizing an American Jew who teaches about the Kabbalah through public Tarot card readings, Hussain identifies this form of religious expression as “idiosyncratic” and therefore outside the scope of protection that hybrid claims could afford. While the example of an activity in which only a single person apparently engages might seem easy to dismiss in this manner, the situation would become more complicated if one could identify a dissident branch of Judaism that endorsed a particular practice. I have argued elsewhere against a monolithic conception of religious groups that neglects the interests of minorities within that group, a conception that can be found operative in some decisions of the European Court of Human Rights. If considering the individual’s free exercise alone does not, as Hussain demonstrates, adequately convey what is at stake in religious liberty, focusing on a group conceived in too unitary a fashion may entail its own drawbacks.

For this reason, I also remain not entirely convinced by the stark contrast Hussain draws between inter- and intragroup religious expression; intragroup discourse may not only, as he suggests, serve “one’s own deity or religious community,” but might also allow disparate constituencies in the community to convey messages to each other. While Hussain valuably refocuses attention on the role of the group in religious liberty claims, he may not be sufficiently attentive to the problems that concentrating upon this collectivity may pose for sub-groups within it.

III. Conclusion

Hussain’s proposal aims, in part, to alter the outcomes of religious liberty cases Muslim plaintiffs bring in opposition to counterterrorism measures by encouraging the courts to use strict scrutiny. In this respect, it may not immediately succeed because the government’s effort to protect national security will be deemed a compelling state interest. Nevertheless, by clearly articulating the nature of the religious expression involved, as well as the significance to the religious group as a whole of stigmatizing this expression, the proposal could gradually persuade courts to place something else in the balance against the prospect of terror.

Bernadette Meyler is an Associate Professor at Cornell Law School. She has written several articles that touch on the relationship between the individual and the group in religious liberty claims.

Preferred Citation: Bernadette Meyler, Religious Expression in the Balance, 117 Yale L.J. Pocket Part 186 (2008), http://yalelawjournal.org/forum/religious-expression-in-the-balance-a-response-to-murad-hussains-defending-the-faithful.