In March, 2022, the American Civil Liberties Union, the ACLU of Minnesota, and the ACLU Foundation of Southern California filed a lawsuit against officials from the Department of Homeland Security on behalf of three Muslim men from Minnesota, California, and Arizona. The suit was filed because there have been instances of questioning these individuals at land crossings and international airports about their religious beliefs. One of the plaintiffs, Abdirahman Aden Kariye, says that he was questioned at least five times about his religious practices and beliefs from 2017 to 2022 upon returning to the United States. Kariye says that the questioning caused him stress and he stopped wearing his kufi, a Muslim cap, when he travels internationally to avoid attention from border officers. Another one of the plaintiffs, Hameem Shah, was pulled aside at Los Angeles airport when returning from Serbia and Bosnia. Officers separated him from other travelers and read his journal despite being asked not to. They also asked him if he had traveled to the Middle East and wanted to make sure that he was a “safe person”. He also had his phone searched and was asked about his religious practices and beliefs.
This type of religious discrimination against Muslims entering the United States has been ongoing for over 20 years and the ACLU filed a complaint to the Department of Homeland Security in 2010 against the questioning of Muslims. In this case, the plaintiffs are arguing that the questioning they have to endure by the U.S. Customs and Border Protection and Homeland Security Investigations is a violation of the Religious Freedom Restoration Act. They also argue that singling out Muslim travelers is a violation of their First and Fifth Amendments’ right against unequal treatment on the basis of religion. The plaintiffs seek that the court declares the actions taken by the CBP to be a constitutional violation to bar them from further questioning the men are ports of entry. They are also seeking that the information collected from them be removed from the record. The constitutional issue is a question of if the questioning of the men by border officers based on their religious beliefs is a violation of the Free Exercise Clause of the First Amendment.
When looking at the constitutionality of this case, it is important to take into consideration the intent of the border officers when questioning these men. The job of the border officers is to uphold national security and protect the country from threats that may put Americans in danger. After the 9/11 attacks, there was a lot of fear in the United States about the threat that Muslims posed to national security. The Department of Homeland Security would likely argue that there is a compelling state interest in protecting the United States from threats and this compelling state interest is important enough to violate the privacy and religious freedom of these men in the name of national security. One could also argue that stopping these men at the border when traveling is the least restrictive means to achieving compelling state interest. To ensure national security, the state is only stopping these men at the border rather than doing other actions that may be more restrictive, like surveilling them at their home or questioning them at other points in their life. Finally, they could argue that stopping them at the border does not create a substantial burden on these men's ability to practice their religion. The state is not saying that these men are unable to practice Islam, but rather asking questions that they believe are necessary to ensure national security.
Despite these arguments, I believe that the ACLU will win this case and the court will decide that the questioning of the Muslim men is a violation of the Free Exercise Clause. In the accounts that took place with the plaintiffs, there was no reasonable suspicion that there was any threat to national security, but instead the men were being targeted because of their religious beliefs. In order to justify that there is an actual compelling state interest, the border officers would have to show that there was suspicion against these men more than just the fact that they were Muslim. Kariye stopped wearing his kufi and Shah had his phone and journal searched which both could be considered a substantial burden placed upon them. Finally, the questioning of the men is also not neutral because the border officers are not questioning people of all religions on their religious beliefs, but specifically Muslims because of a preconceived idea that they pose a threat to national security. The purpose of the Free Exercise Clause is to protect religious minorities from the state and Muslims make up a religious minority in the United States. If a case like this were brought up with Christian people being searched based on their Christian beliefs, it would likely be considered an obvious violation of their free exercise of religion. Based on these facts, I believe that the questioning of these Muslim men is unconstitutional and a clear violation of the Free Exercise Clause of the First Amendment.
Sources:
https://www.aclu.org/press-releases/muslim-americans-sue-border-and-immigration-officials-over-illegal-religious
https://www.aclu.org/cases/kariye-v-mayorkas-0
https://www.pbs.org/newshour/nation/3-u-s-muslims-sue-over-religious-questioning-by-border-officers
3 comments:
I agree with your analysis on this case. The Department of Homeland Security surely has the right to protect against possible national security threats by those entering the country. However, the disproportionate targeting toward Muslim individuals has been an issue since the 9/11 attacks. FBI v. Fazaga is just one example of the government wrongfully infringing upon the privacy and First Amendment Rights of Muslim Americans. In both cases, the U.S. government chose to search these individuals based solely on their religious identification. In neither instance was there a reasonable suspicion warranting the extended questioning and search. I believe that the Free Exercise rights of the Muslim men are also being infringed upon as one man expressed his discomfort wearing religious coverings in the airport. Ultimately, I believe that the ACLU will win this case.
I do not think the ACLU should win this case for two primary reasons. First, this type of questioning is pertinent for national security. Stopping, questioning, and searching are simply safety precautions that every border officer must conduct. The three Muslim men in question were not being discriminated against or targeted, rather, I am sure we can find countless other stressful interactions between individuals of other races and genders. The job of United States Customs and Border Protection Agents is not easy, but it is essential to do everything in their power to protect the borders. Secondly, there is no substantial burden on religion because the men were not directly forced to take off their kufi or stop practicing their religion. The men are still allowed to practice their religion in full range.
I agree that the Department of Homeland Security violated the rights of the men in these cases. Something that I think about is the compelling state interest because I understand that there is reason to be concerned about the national security of the United States, but airport and border security is already so tight. If airport security is already secure enough for everyone else, why is it necessary to cause extra substantial burden on these individuals. If they were posing no other risk, besides their religion, I don't believe it was necessary to go through their phones, journals, etc. I think the substantial burden and discrimination against these men should be reason for why the ACLU will win this case.
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