Airports are uncomfortable, especially when you are subject to additional searches and questioning. They are even more uncomfortable when you have to fear that additional search every time you travel. In Kariye v. Mayorkas, plaintiffs Imam Kariye, Mohamad Mouslli, and Hameem Shah were repeatedly subject to questions about their religious beliefs and practices at US ports of entry by US customs. They were asked, “What mosque do you attend?” “how often do you pray?” and “Are you Sunni or Shi’a?”
The plaintiffs allege that they were unfairly subject to this secondary questioning about their religion because they were perceived to be Muslim, while people perceived to be of other faiths are not subject to the same religious questioning. In this case, the plaintiffs argue they are prevented from exercising their religion because the questioning places a special disability on people who are perceived to be Arab or Muslim.
Furthermore, they argue that religious questioning is invasive and distressing, and places pressure on individuals to modify their religious expression and practice while traveling. The religious questions took place in the “coercive” environment of secondary questioning, in which subjects are separated from the public and are not allowed to leave without the officer's consent. One plaintiff, Kariye no longer carries a Quaran with him while traveling because he fears the additional religious questioning from security.
Does questioning about religious belief, practice, and association at US ports of entry violate travelers’ right to free exercise and constitute an establishment of religion? This case concerns questions of neutrality between religions and between religion and nonreligion. It also brings up the issue of what constitutes a compelling state interest and a substantial burden.
If I were a justice, I would rule in favor of the plaintiffs, arguing that the practice has no compelling state interest other than to foster hostility toward those of the Muslim faith. In Everson v. Board of Education, Justice Black defines what constitutes the establishment of religion. He writes “Neither the state or federal government . . . can pass laws which aid one religion, aid all religions, or prefer one religion over another. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. . .” Under this definition, the practice of questioning about religious faith violates the Establishment Clause. While it may seem innocent to include questions about religious belief in a questionnaire administered to everyone, people who are perceived to be Muslim are questioned at a disproportionate rate, while others are not subject to the same religious scrutiny. This is an unequal treatment based on religious status. Further, the practice removes these individuals from the line to a separate location and holds them there based on whether or not they profess religious belief and attend mosque. The practice is hostile rather than just inconvenient. If the state were neutral between religions, people would be asked religious questions no matter their faith, and if the state were neutral between religion and non-religion, the questions would not be asked at all.
Additionally, the practice of questioning people at airports violates the Free Exercise Clause by placing a substantial burden on these individuals. While the state has an interest in identifying and preventing customs-related crime, belief does not indicate illegal activity and the questioning is unnecessarily invasive to achieve that state interest. The questioning is an undue burden because it places distress on the travelers to the extent that it prevents them from freely expressing and practicing their religion.
https://www.aclu.org/press-releases/muslim-americans-sue-border-and-immigration-officials-over-illegal-religious
file:///Users/sarahdowney/Downloads/Religious_Liberty_and_the_American_Supreme_Court_T..._----_(Chapter_10._Everson_v._Board_of_Education_of_Ewing_Township_330_U.S._1...).pdf
6 comments:
Sarah,
Your post really explains the realities and breach of Free Exercise that are not as obvious as others. I agree with your conclusion, as I do think this is unconstitutional to apply further religious questioning to the plaintiffs. The fact in which the plaintiffs are a minority religion in America speaks to why this is wrong as well, as it does not protect the Free Exercise of those practicing and identifying with a minority religion. While I can see the importance of public safety in an airport, this does cross the constitutional line as religious pressuring and questioning should not be included. Additionally, as you noted one of the plaintiffs no longer carries his Quran anymore due to this questioning, highlighting the unconstitutional nature of these interactions. I think you articulated this argument well, and I understand and agree with your constitutional decision.
Hi Sarah! Great analysis and post about this issue. I think it is plain to any reader that this practice is a complete breach to the Free Exercise of Religion Clause in the First Amendment. I agree fully with your analysis as there is no compelling state interest to single out Arab or Muslims for questioning. To me it is simply a policy rooted in racial and ethnic discrimination and stemming from the fears of 9/11. If the State were to truly be neutral to all religions, they would not question anyone based off their religious faith or any articles that display their faith when entering the country. There are other ways to ensure the safety of those at the airport as well all know too well. We are forced to wait in lines to be screened for hours. I just do not understand the rationale of this policy other than to intimidate and bring hostility towards minority religions, which adversely prohibits their free exercise. If I too were a justice, I would side with the plaintiffs of this case.
Sarah,
I greatly enjoyed reading your post and hearing about the issues the U.S. customs team caused with regard to neutrality and free exercise. While you mention that airport staffers treated religious groups differently than non-religious travelers, I wonder if there is an additional layer of discrimination occurring. For instance, are Christians being asked how often they attend church while crossing through customs? I'd comfortably assume the answer to this question is a resounding "no". Therefore, this dispute seems to also raise the issue of a lack of neutrality in dealing with different religious groups. There appears to be an underlying element of religious favoritism, and I am incredibly interested in following this case as it progresses.
Sarah,
This was a fascinating read and you did a great job breaking down and analyzing this issue. I agree that this is blatant discrimination based on religious beliefs and I think Anthony’s point about 9/11 does, unfortunately, offer some explanation as to why this is happening. Although it does not appear to be a direct burden, this questioning, in my opinion, does infringe on the free exercise rights of the plaintiffs because it forces them to choose between their religious practices and their time and emotions. There is a compelling state interest to identify potential criminals in the airport, but in this case, it seems that the questioning is based on religious presentation rather than actual suspicious activity. The targeting of Muslims in particular shows a dangerous bias that threatens their religious freedoms.
I definitely agree with your findings here Sarah. It places an undue burden on people of Muslim faith if they become routinely subject them to additionally questioning in an airport due to their religion.If it is true that simply having a Qu'ran leads to additional questioning, then it most defiitely is promoting one religion over another. My only qualm/issue with this case is that this seems to be essentially de facto religious persectuion, but not really something that can be ruled as unconstitutional. If TSA has the compelling interest to stop people they regard as suspicious, they may continue this practice of stopping those with Qu'ran's and simply 'find them' guilty of some other minor infraction that requires stopping them. I guess my point is I think this unfortunately would not actually change much about who gets stopped in airports, unless perhaps this disallows stopping anyone?
This was a well informed blog post. This is a very unfortunate issue that those of the Muslim faith must endure. I believe that 9/11 is most definitely a big reason why this terrible type of stereotype exists. If one is questioned because of religious books or religious wear it is 100% infringes on the exercise of free rights of the plaintiffs. If these travelers were doing nothing of any malicious intent other than wearing or carrying some religious themed items, then that is not okay. I am very interested to see what ruling is made.
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