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Article Excerpt
INTRODUCTION
I. PROFILING UNDER UNCERTAINTY A. Cultural Profiling in the Counterterrorism Context: Tabbaa v. Chertoff B. The "Rationality" of Cultural Profiling II. THE GROUP-SUBORDINATING EFFECTS OF CULTURAL PROFILING A. Intragroup Harms B. Intergroup Harms 1. Ratifying Animus and Encouraging Stereotypes 2. Discrediting Civic Participation III. THE DOCTRINAL GAP BETWEEN EQUAL PROTECTION AND THE FIRST AMENDMENT A. Equal Protection Doctrine's Inapplicability to Cultural Profiling B. The Free Speech Clause's Indifference to Group Harms C. The Free Exercise Clause's Convergence with Equal Protection Doctrine 1. The Evolution of Free Exercise Doctrine 2. Obstacles to Challenging Cultural Profiling Under Smith D. First Amendment Strict Scrutiny's Failure To Account for Group Harms IV. TOWARD A COHERENT THEORY OF HYBRID SITUATIONS A. Prior Attempts at Understanding Hybrid Situations B. Grounding Hybrid Situations in Yoder and the Jehovah's Witness Cases C. Essential Elements of a Hybrid Situation D. "Hybridity" Versus "Antisubordination" CONCLUSION [W]hat I feel like saying is, "Sir, prove to me that you are not working with our enemies." (1) That's the whole question of my existence right now.... Do we have rights? I'm a taxpayer and I'm an American, and I want to be treated like one. (2)
INTRODUCTION
To be an American is to live with a hybrid identity. We each reside at the intersection of various "cultures"--self-defining communities of shared beliefs, practices, and histories that offer their members "maps of meaning" by which to chart worthwhile lives? Even when claiming membership in a dizzying array of racial, ethnic, religious, and other social cultures, we all also share a national civic culture. This civic culture is founded on core values of "individualism, egalitarianism, and tolerance of diversity," as expressed through our Constitution, laws, and mechanisms for the creation of national meaning such as political participation, public discourse, and entrepreneurship. (4) Unlike ascriptive group identities based on passive pigmentation or phenotype, "cultural" group identity can be viewed through the lens of performativity, whereby an individual can affiliate herself with a community by embracing traits and conduct that continually recommit her to membership within it. (5) Thus an American woman of African descent might express her "black" identity by wearing cornrows. (6) Parents from Germany might teach their children to celebrate their linguistic heritage. (7) And a citizen who calls herself Muslim might do so only because she can also say she "practices" Islam by constructing her identity through religious signifiers such as head coverings, hairstyles, and acts of congregation or association. (8)
During times of domestic tranquility, our paeans to multiculturalism acknowledge this performativity by encouraging ethnic and religious minorities to participate in civic culture as a way to embrace their "American" identity, develop common cause with the rest of the polity, and cultivate empathy for their own social heritage. Yet when our nation faces external threats, fear often obscures the common ground that people of diverse backgrounds share. Cultural minorities may find themselves under suspicion, their diversity stigmatized as disloyalty to the civic culture under siege from without. Indeed, public and private actors throughout American history have presumed the disloyalty of cultural minorities out of fear that their distinctive expressions of religious and ethnic identity masked threats to the Republic's survival. This distrust spawned the mass detentions of pacifist Quaker colonists during the Revolutionary War, (9) the nineteenth-century nativist characterization of Catholics as "human priest-controlled machines" dedicated to democracy's destruction, (10) the roundups of Eastern European immigrants during the 1919 Palmer raids, (11) the World War II-era lynching of Jehovah's Witnesses for their refusal to salute the flag, (12) and the internment of Japanese-Americans. (13)
History has repeated itself in the years following the attacks of September 11, 2001. Many Americans view Islam and Muslims as a direct threat to civic culture: one in four support the registration of every Muslim's home in a federal database, and two in five support the use of Muslim identity as an automatic trigger for increased government scrutiny such as special identification cards and preflight boarding interrogations. (14) At times, the federal government has reinforced these perceptions that Muslim group identity should be viewed as a valid proxy for terrorist association. In the weeks after the attacks, federal dragnets targeted thousands of immigrants from Muslim-majority countries, (15) detaining some for as long as five years. (16) None of those detained appears to have been prosecuted for terrorism-related crimes, (17) leading some to conclude that the government engaged in widespread, unjustified racial, ethnic, or religious profiling. (18)
Recognizing the flaws of profiling individuals on the basis of ascribed group labels, the head of the Office for Civil Rights and Civil Liberties at the Department of Homeland Security (DHS) has noted that counterterrorism profiles should instead be based upon "behavior, concrete action, [and] observable activities." (19) Recently, the Transportation Security Administration (TSA) announced plans to expand its use of "behavior-detection officers" at airports (20) and has already employed these officers, air marshals, and other federal agents to scrutinize metropolitan mass transit passengers for "suspicious" behavior. (21) Despite this laudable shift away from targeting passive racial, ethnic, or religious status, even "conduct-based" profiling can disproportionately burden a single minority group by targeting conduct that is significantly correlated with membership but is in no way inherently indicative of wrongdoing. For example, the TSA promulgated a new policy of potentially subjecting any airline passenger wearing a "head covering" to additional inspection if security officers "cannot reasonably determine that the head area is free of a detectable threat item." (22) The agency's own travel advisories recognize the potential for a disparate impact where the scrutinized conduct is not just coincidentally correlated with group membership, but is in fact expressive of membership in or solidarity with a cultural community. (23)
This Note defines "cultural profiling" as law enforcement policies that specifically target expressions of cultural identity as proxy criteria thought to be correlated with criminality, terrorist connections, or other subversive propensities. Although "profiling" often implicates Fourth Amendment concerns, this Note uses the term more broadly to describe any policy of imposing adverse state scrutiny upon a person, even absent searches or seizures, solely on the basis of a given proxy. Profiling could thus also include such decisions as whether to conduct a tax audit, permit a passenger to board an airplane, or obstruct a banking transaction. And while many have critiqued the use of profiling as a cover for affirmative animus, this Note will argue that it remains no less problematic when good faith efforts to catch the nefarious reveal the government's indifference to ensnaring the innocent. (24)
As federal and state law enforcement increasingly coordinate their homeland security efforts, (25) cultural profiling that exploits religiously motivated activity as a proxy for terrorist threats could inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Yet those seeking judicial redress from such burdens may encounter significant jurisprudential obstacles. The Supreme Court's prevailing interpretation of the Fourteenth Amendment's Equal Protection Clause disfavors the state's distribution of "burdens or benefits" on the basis of certain suspect classifications. (26) A Muslim profiled by federal agents because of her perceived racial, ethnic, or religious status would have a cognizable claim under the equal protection component of the Fifth Amendment's Due Process Clause. (27) But if the government profiled her on the basis of her religious conduct, equal protection doctrine would not readily support her claim of adverse treatment--even if that conduct defined her group identity. (28)
The First Amendment would therefore seem a more plausible avenue for relief from cultural profiling, because on its face it privileges one example of cultural performativity: the free exercise of religion. After the Supreme Court applied the Free Exercise Clause to the states, it spent considerable energy protecting Jehovah's Witnesses and others from the effects of private animus and governmental apathy. This group-protective approach reached its peak in Wisconsin v. Yoder, (29) where the Court exempted Amish parents from a compulsory education law that eroded their ability to propagate their distinctive social culture, because it found the Amish community just as worthy of judicial protection as individual Amish beliefs and practices. In 1990, however, Employment Division v. Smith brought free exercise doctrine squarely into convergence with the "anticlassification" orientation already guiding equal protection and freedom of speech jurisprudence. (30) Smith held that plaintiffs cannot use the Free Exercise Clause alone to challenge incidental burdens upon their religious exercise that result from neutral laws of general applicability. (31)
Even when a judge might conclude that a given policy of cultural profiling does trigger strict scrutiny under Smith's rule, religious freedom doctrine currently suggests no easy way to enunciate concerns about group-based disparate treatment or the relationship between individual expression and group identity. As a result, judges may weigh the costs and benefits of cultural profiling on a purely "transaction-by-transaction" basis. (32) Although courts may explicitly consider the economic and dignitary burdens imposed upon individual Muslim plaintiffs, they may just as likely leave unexamined the externalized costs of such profiling that must be borne by the wider Muslim community, particularly the stigmatization of its religious identity. (33)
An existing but little understood doctrine offers a way for plaintiffs to voice such a theory of group harm in certain free exercise challenges. Smith carved out an exception to its general rule, such that neutral and generally applicable measures that implicate both the Free Exercise Clause and a second constitutional protection could remain subject to strict scrutiny as a "hybrid situation." (34) Commentators have suggested that this concept of hybridity was offered merely to preserve the validity of Yoder, (35) which Smith characterized as a case where the substantive due process right of parental control over a child's upbringing was "reinforced" by the free exercise claim. (36) Some courts view Smith's carve-out for hybrid situations as mere dicta. (37) Nonetheless, both Smith's rule and its exception remain good law. (38)
This Note argues that Muslim plaintiffs can plead hybrid claims to challenge certain instances of cultural profiling that burden and stigmatize their religious community as a whole. Not all religiously motivated activity would present a hybrid situation, and hybrid claims may not necessarily--if ever--succeed in invalidating a profiling policy. But pleading them will help Muslim plaintiffs offer judges a normative account of group harm that can more robustly challenge the executive's counterterrorism calculus. (39) And even when courts do not reject cultural profiling's asserted rationality, pleading hybrid claims may force a more open and honest judicial reckoning with the potential social costs of such security measures.
Part I posits that the uncertainty inherent in predicting human behavior will likely lead to overinclusive counterterrorism policies of the kind giving rise to the case Tabbaa v. Chertoff, (40) which involved a prototypical act of cultural profiling. Part II provides a holistic view of the costs that cultural profiling can impose upon American Muslims and the social meaning of their religious identity. Part III explores how existing equal protection, freedom of speech, and religious freedom doctrines do not reach cultural profiling's group-subordinating effects. Part W proposes a theory of hybrid situations, grounded in Yoder and the 1940s Jehovah's Witness cases, as pleas for judicial attention to the community harms that result from indirect burdens upon religiously motivated exercises of secular constitutional rights.
I. PROFILING UNDER UNCERTAINTY
Creating a cultural profile requires making a judgment about the likelihood that those who attempt to engage in illegal activity will also engage in legal activity that is easier to observe. Since innocent people also undertake legal activities, cultural profiles will almost inevitably be overinclusive. For example, Los Angeles police might profile young men of Korean ethnicity on the basis of nonverbal cues that they have seen adopted by members of Korean gangs, even though the targeted interpersonal behavior may actually be characteristic of Korean culture more generally. (41) Similarly, border patrolmen in west Texas might be trained to suspect that any vehicle displaying Christian decals, such as the fish symbol, is being driven by a drug smuggler who is using those images to deflect suspicion. (42) But where these religious symbols are "omnipresent" on vehicles in that area, regular use of the profile--even if it leads to a smuggler's capture--would burden many of the local faithful "who wish to proclaim their beliefs on the bumper of their car." (43)
Any attempt to defend or critique a profile's predictive validity in mathematical terms risks obscuring the truism that predicting human behavior is an inherently uncertain project. Officials can only make educated guesses about what a terrorist is likely to do. A given profiling proxy may thus fail to describe policymakers' intended objects as precisely as they would have expected. This Part will detail one example of such imprecision and then survey the decision-making processes that can influence the promulgation of cultural profiles.
A. Cultural Profiling in the Counterterrorism Context: Tabbaa v. Chertoff
In December 2004, several dozen American citizens--men and women of all ages with U.S. passports and other valid identification--were driving home to New York from Canada. (44) As they arrived at a border checkpoint outside Buffalo, Homeland Security officials from Customs and Border Protection (CBP) ordered them into a small, unheated room. The travelers had committed no crimes or customs violations, nor were they suspected of any. (45) Yet when some of them tried to call family, lawyers, and the media, DHS officials confiscated their cell phones. (46) They were held for hours, some overnight, and were searched and interrogated about their activities in Canada and whether they had any links to terrorism. (47) Threatened with indefinite detention unless they submitted to fingerprinting and photographing, (48) they all complied in order to regain their freedom.
These American detainees were all Muslims returning from a three-day conference at the Toronto SkyDome titled "Reviving the Islamic Spirit" (RIS). (49) The youth-focused event had been open to ticket-paying members of the public and was attended by over thirteen thousand people. (50) The conference-goers came for worship, devotional music, panel discussions, shopping bazaars, and a keynote speech--"In the Spirit of Love"--offering reflections on the second coming of Jesus Christ, delivered by an American-born imam who had previously advised President George W. Bush. Officials addressing the event included the head of Canada's national police and the Premier of Ontario, who wished the attendees his best: "I applaud the thousands of enthusiastic young people who have come together this weekend in a spirit of optimism to explore ways in which Muslim youth can make a difference in the life of their community--and make the world a better place." (51)
In 2005, five of the detainees filed a federal lawsuit against the DHS. (52) Seeking only declaratory and injunctive relief, the plaintiffs alleged, among other things, that the DHS had violated their First and Fourth Amendment rights. The litigation uncovered evidence that the DHS feared that terrorists might use any one of several contemporaneous North American Islamic conferences "as a cover to meet and exchange information, documents, money, and ideas about acts of terrorism." (53) The government's intelligence "indicated that the conference or conferences that were being held at that time of year were conferences [where there was] the possibility that there would be individuals or groups of individuals that might be attending that conference or those conferences that might be related to terrorist-related activities...." (54)
The intelligence, which named only Islamic conferences, (55) formed the basis of an "Intelligence Driven Special Operation" in which checkpoint officials around the United States and Caribbean received orders to detain anyone arriving from those events and process them pursuant to a special counterterrorism protocol. (56) Since the RIS Conference alone counted over thirteen thousand attendees, this nationwide dragnet could have led to the detentions and interrogations of untold numbers of returning American Muslims solely because someone with a terrorist connection may have been at one of those events.
The district court granted summary judgment for the DHS, reasoning that the government's power to seize the travelers at the border and retain data about their detentions--increasing the likelihood of future border detentions--trumped the plaintiffs' First Amendment freedoms of speech and religion. (57) The judgment was affirmed after the plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. (58) The judiciary thus implicitly endorsed the government's fundamental presumption that it was worthwhile to detain anyone returning from the RIS Conference because they might have been in contact, even unknowingly, (59) with a person connected to terrorism--assuming that such a person had even been there at all.
B. The "Rationality" of Cultural Profiling
Law enforcement officials do not often encounter intelligence that specifies the license plate of a smuggler's vehicle, the street intersection where gang members are loitering, or the flight that a terrorist will board. Instead, they must often decide what degree of certainty and risk they are willing to tolerate in light of the incomplete information available to them. In other words, they must decide how inefficient a profile they are willing to act upon.
The answer to that question will be informed by rational considerations of existing law enforcement resources and the administrative costs required to formulate a more precise profile. But it will also be shaped by imperfect cognitive shortcuts and individual biases about the correlation between the proxy activities and terrorist or criminal activity, (60) and about the likelihood that such highly salient and easily imagined threats exist. (61) Together, these conscious and unconscious influences can yield a "misapprehension of costs and benefits" (62) that accentuates institutional objectives while discounting the burdens imposed upon the innocent people--like the Tabbaa plaintiffs--whom the profile targets as "false positives." (63)
The next Part seeks to bring these burdens into sharper relief by outlining several countervailing concerns, particularly relating to the American Muslim community, that policymakers and judges alike should consider when evaluating a profile's asserted rationality. Obviously, these effects cannot be precisely quantified. But if those who create profiles have more incentives to internalize these externalities--if only out of fear that their failure to do so will be second-guessed during judicial review--they might more narrowly tailor these policies of their own accord. (64) From the purely utilitarian standpoint of preventing terrorism, using a weakly corroborative proxy may indeed be more "rational" than not using any profile at all. (65) But a failure to consider the social consequences of such profiling, regardless of the proxy's strength, runs counter to our civic culture's regard for equal rights and individual liberty (66)--values that counterterrorism officials are no less responsible for protecting. (67)
II. THE GROUP-SUBORDINATING EFFECTS OF CULTURAL PROFILING
Pervasive government scrutiny of culturally motivated conduct can externalize significant dignitary and stigmatic costs that are borne by those who are, or are perceived to be, a member of that same cultural community. First, such scrutiny can impose intragroup harms in the form of a "cultural tax." (68) Where individual identity is constructed by participation in a community of shared values, application of the state's coercive investigatory powers to members of that community can significantly deter their cultural expression. The greater the dignitary and stigmatic costs to the individuals who are profiled, (69) the more likely that fear of future scrutiny will pervasively chill other community members' willingness to engage in conduct that defines them.
Second, even where individual burdens are relatively trivial, cultural profiling that disparately targets one community can encourage third-party observers to draw inaccurate conclusions about that group's members and values. In the counterterrorism context, this stigmatization may not only ratify popular animus against Muslims but also undermine Muslims' efforts to cultivate intergroup empathy. Profiling can suggest, with illusory certainty, that those who participate in conduct...
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