Reweighting the Balance: Religious Groups, Mortal Threats, and “Hybrid Situations”
Reweighting the Balance: Religious Groups, Mortal Threats, and “Hybrid Situations”
Murad Hussain, 117 Yale L.J. Pocket Part 177 (2008)
Recent attempts to falsely portray presidential candidate Barack Obama as a Muslim and a tool of our nation’s enemies serve as vivid reminders that many Americans doubt the loyalties of their Muslim compatriots. These smears exploit the perception that conduct expressive of Muslim identity–like attending a “Muslim” school or wearing “Muslim” garb–is inherently suspicious. Some counterterrorism profiling, even when based on “objective” intelligence, has employed similar logic by targeting activities supposedly probative of terrorism, yet which correlate reliably with little except being Muslim. Such profiling can inflict pervasive harms upon American Muslims as a group, not least by reinforcing the prejudices that make the Obama rumors so virulent.
My Note, Defending the Faithful, explores these group harms and how prevailing constitutional interpretations do not let judges account for them when reviewing challenges to conduct-based counterterrorism profiling. However, the enigmatic Free Exercise Clause doctrine of “hybrid situations,” announced in Employment Division v. Smith, offers a way to help reshape judicial intuitions about the interests at stake. In my Note, I propose that Muslim plaintiffs can plead “hybrid” claims in order to encourage judicial solicitude for how profiling that burdens their religiously motivated exercise of secular constitutional rights can also threaten to subordinate their religious community as a whole.