Prayer for Relief: Anti-Muslim Discrimination as Racial Discrimination
Note by Romtin Parvaresh
From Volume 87, Number 5 (July, 2013)
In late 2011, the New York City Police Department (“NYPD”) made national and international headlines when its secret surveillance of Muslims across the New York City area was discovered. Under the guise of counterterrorism, the NYPD monitored the daily lives of thousands of Muslims for about a decade, using techniques such as taking photographs, collecting license plate numbers at mosques, and utilizing informants known as “mosque crawlers” to infiltrate Muslim organizations. From recording sermons to monitoring businesses and grade schools, the NYPD targeted individuals not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.
As one might expect, the police surveillance program has come under fire, as it chills religious participation and casts innocent Muslims as potential terror suspects. In mid-2012, a group of Muslim plaintiffs filed suit in federal court challenging the NYPD’s program. Though their complaint alleged First Amendment violations, including violations of the Free Exercise and Establishment Clauses, their likelihood for success may be hampered: Recent findings indicate that Muslim plaintiffs as a class are less likely to succeed on First Amendment challenges relative to other religious groups. Indeed, in early 2014, the case was dismissed on standing and pleading grounds, and it was under appeal in the Third Circuit as of August 2014.
Of greater interest, however, is the plaintiffs’ additional claim for violation of the Equal Protection Clause of the Fourteenth Amendment. This claim, too, faces a doctrinal obstacle—religion is not a suspect classification and is thus not subject to strict scrutiny. Only classifications based on race and national origin are suspect and thus warrant strict scrutiny; by contrast, religion, more so than race or national origin, appears to be the primary, if not sole, basis for the NYPD’s surveillance.
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