Questioning about religion at border is unconstitutional

When attempting to return home from international travel, a number of American Muslims report being asked personal questions about the practice of their faith by border officials: what type of Muslim they identify as, how many times a day they pray, or where they attend mosque. As a result, the American Civil Liberties Union filed a lawsuit in March seeking a court order that will prohibit U.S. Customs and Border Protection from asking about one’s religion, and that notes the agency’s targeting of Muslims in this kind of questioning violates the constitution.

“Muslims have a constitutional right to equal protection under the law and cannot be singled out for differential treatment,” the ACLU said in a statement. “And all people have a right to practice their religion in peace and privacy, free from unwarranted government scrutiny.”

Andrew Koppelman agrees. Koppelman is the John Paul Stevens professor of law at Northwestern University whose work falls at the intersection of law and political philosophy. He’s written more than 100 scholarly articles and seven books, including his most recent book, “Gay Rights vs. Religious Liberty? The Unnecessary

Conflict.” He took some time to discuss how and why the questioning outlined in the ACLU lawsuit violates constitutional rights. (This interview has been edited for length and clarity.)

Q: Can you talk about why this kind of questioning is being argued as unconstitutional? A: If there is a basic core of the religion clauses of the First Amendment, it is that government may not discriminate on the basis of religion. It violates the First Amendment for government to treat people of one religion worse than members of another religion. Discrimination on the basis of religion is a core commitment of the United States. Government is not to meddle with religion.

Q: How is this separation of religion and government typically supposed to work, in practice? What would it look like? A: In practice, and most fundamental to this, your religious beliefs are completely irrelevant to how the government treats you. The government is supposed to be religion blind. At a minimum, the government is not to treat somebody worse because of their religious beliefs.

Q: It seems reasonable to think that government agencies would know that this would be considered a violation of a citizen’s constitutional rights. Are there potential arguments that could be made in favor of this kind of questioning? That would lead an agency to take this kind of risk?

A: Public officials are presumed to know the law. If public officials do not know the law, and they violate the law, then courts are available to provide a remedy and make sure that they are obeying the law. My guess is that what is going on here is that the officers are making a statistical generalization that Muslims are more likely to engage in terroristic activity than others. Now, in fact, empirically, that’s not true. The most dangerous terrorist threat that the United States faces today is from White supremacist groups. They are the ones who are actually engaged in violent terror, but even if that were statistically accurate, it has been made clear in racial profiling cases, that you may not discriminate on the basis of a forbidden characteristic, even if that is statistically valid. Even if, in some places, African Americans are more likely to engage in criminal activity than Whites, police officers still may not profile on the basis of race, may not treat citizens worse because they are Black. That logic applies here. Even if it were statistically valid that Muslims are more likely to engage in terroristic activity, it

would still be unconstitutional for government to use that as a basis for picking on entirely innocent people, just on the grounds that they’re Muslim.

Q: Are there questions about religion, in this context of being stopped at the border as a U.S. citizen, that would not violate a person’s constitutional rights? At what point would the questioning begin to violate those rights? A: The aspects of Islam that are of legitimate concern to the government — in particular, that there are people who embrace a variety of Islam that legitimates violence — that aspect of Islam is something that it’s possible to investigate without inquiring into one’s religious beliefs. If there are particular, violent organizations and the border control people have some basis for thinking that the person who’s trying to enter the country has some association with those groups, then one can inquire into that. What one can’t do is place the entire Muslim population of the United States under suspicion.

Some of the reports ... indicated that officers are just baldly asking somebody whether they were Muslim and whether they took their religion seriously, as though there were something wrong with that. That’s clearly impermissible. Wherever the line is, this is far inland from that.

Q: Part of the lawsuit alleges that the questioning violates constitutional rights because people who practice other religions are not being questioned in this way. Would that make a difference, whether citizens who practice Christianity, Judaism, Buddhism were also questioned? Would that no longer make the questioning discriminatory? Or, a violation of constitutional rights? A: It wouldn’t be discriminatory. The allegation is that one religion is being discriminated against, and that violates the constitution. That’s this case. I suppose that if the border were patrolled by atheists who were in the practice of harassing anyone who showed any evidence of believing in God, that would not be discrimination against any particular religion, although it would be the government enforcing a particular view about religion. It’s pretty clear that such views are not the government’s business; the government is not to take an official line about religious truth. Discrimination claims are always based on an allegation that someone is being treated worse because of the particular religion they belong to.

The government has no legitimate basis for inquiring into somebody’s religious beliefs. It’s just not the government’s business. There is no legitimate basis for it.