Homespun Wisdom (and Wrongheadedness) in Iowa on the Treatment of Muslims

Posted in: Constitutional Law

A few events this week I saw in the papers or heard about on the radio help frame some issues concerning equality in America. On Wednesday President Obama made his first official visit, as President, to an American mosque and decried “inexcusable political rhetoric against Muslim-Americans” from some Republican presidential candidates. On Monday, I heard an NPR broadcast from Iowa (which was holding its caucuses later that evening) in which a reporter played excerpts from interviews with an Iowa businessman and a local Muslim cleric (an imam) concerning America’s treatment of Muslims. When asked whether he agreed with Donald Trump that Muslims should be barred from entering the country for a time, the businessman (whose demeanor and presentation came across as reasonable and level-headed) said: “I, for one, do not believe that every Muslim is a terrorist. You know, I’m not that irrational. However, when there seems to be a high incidence of that radicalism within a certain group, you tend to be a little gun shy. If all of a sudden everybody with blonde hair started shooting people, I’d be pretty leery of blond-haired people.”

The imam, when asked about this topic, observed: “If you look at the statistics, we have had more than 300 mass shootings in the last year and except maybe for one or two they were carried out by people who were not Muslim. So [the claim] is not a reasonable argument to make.”

When we take these comments (the President’s, the businessman’s, and the cleric’s) together, we can see some wisdom, and also some fallacy. As to the wisdom, the businessman implicitly makes two very good points. First is the suggestion that religious equality has many similarities to equality based on skin color or (as in his example) hair color that goes along with skin color. Religion, like race, is often a characteristic into which someone is born, or at the very least a very fundamental trait that it is not fair to ask people to change about themselves. For this reason among others, it is presumptively an illicit basis on which to judge someone’s worth, or on which to allocate benefits and burdens. Putting aside the question of whether Congress has plenary power over immigration such that it can take into account characteristics that it couldn’t in other settings, the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth remind us that basic principles of legal and moral fairness generally frown on the use of minority religion or race as government sorting mechanisms.

And yet sometimes it is completely fair and just to consider the color of individuals (or their religion) in fashioning government policy. Racial profiling is such a vexing issue because its use of race is not totally irrational. Everyone accepts that police can take into account a suspect’s race when it is included in a witness’s description of the crime and the criminal. This use of race seems legitimate even though singles out certain persons, including the innocent, for special investigation and suspicion.

Why is the use of skin color in a witness ID generally untroubling? One reason, I think, is that we have good confidence that the witness would include the perpetrator’s race in the description regardless of which race it was. A key question—and this raises the businessman’s second piece of wisdom—is whether the same race- or religion-based measures being discussed today would be considered if the September 11th and handful of subsequent religiously motivated attacks in America over the last decade-and-a-half had been linked, not to brown-skinned Muslim Arabs, but to some racially and religiously identifiable and numerically manageable white group. If the 9/11 hijackers had been 19 young Lutherans based in Sweden, would we be treating tall, blue-eyed, extremely light-skinned and fair-haired young Lutheran men and women with public and private suspicion? Would we be listening for their foreign accents? Peering over their shoulders to see what they are reading? Talking about excluding all blonde-haired persons or all Protestants from entering the country?

If the answer to this question is “yes,” then people’s attitudes these days would, at some important level, be race neutral, since we would be willing to treat all races equally, or should I say equally suspect. Yet—and this is where the businessman’s observation is terribly flawed and the President’s comment is well put—I think everyone would quickly conclude that the country would NOT be talking about closing its doors to all blonde-haired persons or all Lutherans had 9/11 and several other recent attacks been perpetrated by fair-complected members of that church. Indeed, as the imam pointed out, many more mass shootings have been perpetrated by non-Muslims (many of whom probably were blonde) than by Muslims, yet no one is suggesting that any group other than Muslims should be barred from entering the country. I am neither an immigrant, nor a Muslim, nor a person of Middle Eastern ancestry, so I can’t speak first-hand about how it feels to be singled out in the way Mr. Trump proposes, but it’s hard to imagine the targeting of this group alone doesn’t create legitimate bad feelings.

Another way to put this is to say that a ban on all Muslims is incredibly underinclusive insofar as we would not be banning many non-Muslims who may want to do bad things after they get here. But underinclusiveness is just one way to show possible unfairness. When a policy is wildly overinclusive, as well as wildly underinclusive, it looks all the more irrational and driven instead by inexcusable bias. And a ban on all Muslims is extremely overinclusive insofar as the overwhelming majority of Muslims who want to enter the United States intend no harm. When you think of how many Muslims seek to be here (hundreds of thousands if not millions), and how few Muslim extremist attacks there have been (no more than a few dozen) you see that the percentage of Muslims who intend no harm approaches 100 percent. That is what makes the businessman’s belief that “there seems to be a high incidence of that radicalism within [the Muslim] group” so hard to fathom. There is no such high incidence; the incidence is quite low.

There is, by definition, a high incidence of radicalism within radicals, but Mr. Trump did not talk about banning all radical Muslims (largely because it is hard to know who is radicalized and who is not), but rather all Muslims, which is an exponentially larger group. This last point does, however, suggest that when race or religion is simply a factor among many it may be more justifiably used that when it is the primary one. Using race or religion as a tie-breaker to winnow suspects is very different from using race to subject great numbers of people to aspersion and indignity. For example, police use of a witness statement declaring a perpetrator “Latino” is very different—and more dangerous—than using one that describes the criminal as “male, 5 feet, 9 inches, 140 pounds, Latino, wearing blue jeans and an orange sweatshirt, and bearing a tattoo on his neck.” So if we were talking about banning Muslims who were suspected of having engaged in terrorist acts elsewhere even if we weren’t banning non-Muslims who were suspected of foreign wrongdoing, such a policy may or may not be defensible, but it would be a far cry from Mr. Trump’s blunderbuss approach.

If there are time and space limits on the use of racial or religious profiles, they may seem more reasonable and less gratuitously burdensome. For example, if there were a specific and credible threat that members of ISIL were planning to hijack more commercial airliners on a particular day, then more extensive use of racial or religious profiling on that day in U.S. airports would be in order. But Mr. Trump’s proposal lacks such limitations.

All these factors help us discern the social meaning of a particular categorical policy and the intent and sensitivity behind it. In that way, they better enable us to answer the question: “Would we do this if white Christians were involved?” Using race or religion is very tricky and we must be even-handed in how we approach it. Sometimes, this may mean that Muslims or people mistaken for them will bear some race- or religion-based burden. But prior to going there, we must ask: “What if it were I?”