Abstract

Excerpted From: Rachel F. Moran, Racial Equality, Religious Liberty, and the Complications of Pluralism, 50 Hastings Constitutional Law Quarterly 149 (March, 2023) (144 Footnotes) (Full Document)

Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation's constitutional DNA is reassuring, Professor Sahar Aziz's new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so that freedom and equality become mutually destructive. Far from enjoying self-government, some minority groups have seen that “racism intersects with religion to racialize a religion's followers and consequently exclude them from the panoply of religious freedom.”

Professor Aziz's book raises important questions about whether a narrative rooted in race and racialization fully captures the complexity of the Muslim experience. It is not clear why race--as opposed to traits like national origin, immigration status, and religion--should be the dominant force that drives government policy, private bias, and Muslims' self-conceptualization. This is especially true given the tremendous internal heterogeneity of the Muslim population as well as the rise of powerful new ways to surveil and control many of its members through immigration enforcement. Framing the Muslim community in racial terms potentially obscures the complicated dynamics associated with proliferating differences and the anxiety around pluralism they engender. That anxiety in turn can prompt a retreat into individualism. As a result, Americans “hunker down” in the face of growing diversity, even as courts retreat from equality jurisprudence and turn to seemingly universal principles of personal liberty. The challenge is to find a way to restore a sense of shared purpose that remains respectful of distinct histories and identities.

I. Historical Injustices: The Meaning of Race

Professor Aziz begins her discussion of the Muslim experience by offering historical accounts of other religious groups that have been racialized, denied religious liberties, and deemed unfit for self-government. As she notes, mass migration of Jews and Catholics in the mid-nineteenth and early twentieth century prompted fears that “America's Protestant, Anglo-Saxon purity was under threat.” Those fears led to racialization of the newcomers, expressed most graphically through predictions of the nation's impending “race suicide.” Jewish and Catholic immigrants were treated as distinct races, characterized as biologically and culturally inferior, and therefore presumed unassimilable. Jews' economic success generated theories that they were conspiring to displace Anglo-Saxon Protestants and achieve world domination. Meanwhile, there were doubts that Catholics could be loyal to the United States because of their unwavering attachment to the Pope. The Ku Klux Klan even accused Jews and Catholics of working together to gain control of America. Anxieties like these generated significant legal restrictions on immigration.

As Professor Aziz explains, Jews and Catholics did not gain full acceptance under a “triple melting pot” theory until “after World War II when Whiteness was socially redefined to include all groups of European ethnic origin and American identity expanded to a Judeo-Christian one.” The shift stemmed from the United States' need to address histories of racism and religious persecution to become a credible leader of the free world. While racism violated principles of equal treatment, religious persecution vitiated promises of freedom of worship. Both failings were seriously at odds with America's newfound prominence as a paragon of democracy on the world stage.

Professor Aziz briefly discusses other religious minorities: Mormons, Confucians, and Buddhists. She asserts that, like Jews and Catholics, Mormons initially were portrayed as a degraded race, unfit for self-government and with aspirations to take over the country. Suspicions reached such a fever pitch that President James Buchanan sent federal troops to remove Mormon leader Brigham Young from the governorship of Utah. The Mormon practice of polygamy reinforced widespread hostility. Mormons were identified with other cultures that allowed men to take multiple wives. Their households were likened to Turkish harems, as Mormons were cast as new “Mohametans” on American soil.

Professor Aziz contends that Mormons, like Jews and Catholics, ultimately were accorded the privileges of Whiteness. However, it is worth noting that although John F. Kennedy became the first Catholic President of the United States in 1964, Mitt Romney faced ongoing suspicions about his Mormon faith when he unsuccessfully campaigned for that office in 2008 and 2012. Evangelicals were especially concerned that he was not a true Christian, and former Arkansas governor Mike Huckabee even asked whether “Mormons believe that Jesus and the devil are brothers.” According to polling at the time, 36% of voters who leaned Republican said that they would be less likely to vote for a Mormon candidate in 2006, though that figure had dropped to 21% in 2011. The United States also has yet to elect a Jewish President.

As for Confucians and Buddhists, Professor Aziz makes no claim that they have been assimilated to the privileges of Whiteness. She notes that their religious practices were equated with paganism and amorality, again prompting doubts about fitness for citizenship. Those doubts resulted in exclusionary policies aimed at the Chinese in the late 1800s and early 1900s. Meanwhile, the practice of Shintoism among Japanese immigrants raised concerns about their loyalty because they believed the emperor of Japan to be divine. According to Professor Aziz, although Asian Americans have often been held up as model minorities due to their “high levels of education, move to White suburbs, and cultural assimilation,” they have not enjoyed full acceptance and “are still lower in the racial-religious hierarchy than White Christians.” In her view, “the further away a group's phenotype and religion is from Anglo-Saxon Protestantism, the lower they are in the racialreligious hierarchy.”

In Professor Aziz's account, both racial difference and religious pluralism do considerable work in explaining the divergent outcomes for Jews, Catholics, and Mormons on the one hand, and Confucians and Buddhists on the other. Yet, race and religion are fundamentally different constructs. Race scholars Michael Omi and Howard Winant have argued that phenotypical traits, what they term the “ocular” dimension of belonging, have played a vital role in making race a source of cleavage in the United States. According to this view,

phenomic traits, initially associated with African bodies or with indigenous bodies in the Americas, were soon elevated to the status of a ‘fundamental’ (and later biological) difference. The attachment of this process of ‘othering’ to immediately visible corporeal characteristics facilitated the recognition, surveillance, and coercion of these people, these ‘others.’ This phenomic differentiation helped render certain human bodies exploitable and submissible.

By contrast, religious differences have been defined not by phenotypical differences but by faith-based choices that shape beliefs and conduct. In fact, physical appearance is such an unreliable indicator of sectarian loyalties that individuals sometimes use visual cues, or “badges of faith,” to signal their solidarity with similarly committed co-religionists.

The stigma attached to badges of faith operates differently than the mark of race. Phenotypical traits are not easily altered, so using race to create hierarchy entrenches disadvantage and difference. However, social pressure can force the devout to become more private about their beliefs, abandon traditional expressions of faith, convert to another denomination, or renounce religion altogether. These dynamics clearly have been directed at individuals whose dress is rightly or wrongly equated with the Islamic faith. As anthropologist Richard Sosis explains,

we can confidently categorize the distinct turbans and beard styles of Sikhs as badges that signal group commitments. However, these badges also prevent them from participating in activities where Sikhs are unwelcome, which in the United States following 9/11 was apparently quite a few, as Sikhs found themselves the misplaced targets of anti-Muslim bigotry. These badges essentially put a tax on events that, whether implicitly or explicitly, sought to restrict Sikh participation.

As the Sikh experience suggests, the more costly the signaling, the higher the sense of collective solidarity must be to sustain overt religious practices. In some cases, coercion can prompt new forms of affiliation. For instance, Sikhs have formed interfaith coalitions with Muslims in the wake of September 11th. In other cases, this heightened pressure can lead group members to distance themselves from a disfavored identity.

Despite the distinctive dynamics of race and religion, Professor Aziz leans heavily on racial identity to explain the Muslim experience. Yet, it seems entirely possible that proliferating differences are destabilizing notions of race. As sociologist Richard Alba has found, intermarriage is complicating the meaning of racial identities, and individuals are already inconsistent when they self-identify by race. In addition, others' perceptions of racial identity may be changing, especially for groups in the racial “middle,” such as Middle Eastern/North African (MENA) and Latinx. For Blacks and Whites, race has been associated with characteristics like ancestry and phenotype, but for a MENA identity, other traits--such as being Muslim or Jewish, having a Middle Eastern name, or speaking Arabic--can play an important role. For those seeking to identify someone as Latinx, biological cues have weak effects, and sociocultural traits, like having a Spanish name or speaking Spanish, are weightier considerations.

The challenges posed by the racial middle suggest “the growing complexity of the U.S. racial system and the inadequacy of referring to it as solely based on institutionalized ancestry logics.” All of this creates a quandary about the precise meaning of race. Returning to Professor Aziz's analysis, should we treat being Muslim as a proxy for race? Or does that unfairly conflate race and religion in ways that conceal the distinct injuries of Islamophobia? If religion is a separate trait, how should religious hierarchy be defined and how does it intersect with race, particularly if voluntary religious practices are more malleable than ancestry and phenotype? These are significant questions with far-reaching consequences as the size of the nation's racial middle grows through immigration and intermarriage.

[. . .]

Professor Sahar Aziz's book offers an illuminating account of the immigrant Muslim experience in the United States, but it does more than that. It provides readers with an opportunity to reflect on whether a narrative of race and racialization remains the most powerful way to understand proliferating differences in the United States. As globalization and immigration lead to increasing demographic diversity, other characteristics like national origin, immigration status, and religion can be highly relevant to any analysis of social stratification and subordination. Those complications can influence not only how the marginalized understand their place in our nation, but also how our nation understands its place in the world.

Distinguished and Chancellor's Professor of Law, UC Irvine School of Law.