Written by Don Byrd
Via Howard Friedman at Religion Clause, a lawsuit challenging the New York Police Department’s surveillance of Muslim communities and mosques can go forward, following a 3rd Circuit ruling that overturns the case’s dismissal early last year. The secret NYPD policy, which arose in the wake of the September 11, 2001 terrorist attacks, came to light as the result of an Associated Press report.
The Baptist Joint Committee joined several other organizations in calling for an investigation of the practice, which, they wrote “is based on the false and unconstitutional premise . . . that Muslim religious belief, practices, and community engagement are grounds for law enforcement scrutiny.”
Reviving the lawsuit, the 3rd Circuit rejected the lower court’s determination that the plaintiffs lacked standing to bring the case because they suffered no real injury. The appeals court wrote pointedly of the dangers of such dismissal:
The City . . . argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion. This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.
The Court further ruled that intentional religious discrimination should be subject to heightened judicial scrutiny:
Though “[n]othing but the most telling of personal experiences in religious persecution suffered by our forebears could have planted our belief in liberty of religious opinion any more deeply in our heritage,” we have struggled to guarantee religious equality since our Nation’s founding. Different religious groups have borne the brunt of majority oppression during different times, and the battle against religious prejudice continues.
In light of this history, distinctions between citizens on religious grounds pose a particularly acute “danger of stigma and stirred animosities.” That “[c]enturies of experience testify that laws aimed at one . . . religious group . . . generate hatreds and prejudices which rapidly spread beyond control,” also counsels in favor of heightened scrutiny.
The Court also rejected the City’s argument that the increased national security concerns justified the discriminatory policy:
No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights. “[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”
As for the religious liberty claims rooted in the First Amendment, the 3rd Circuit chastised the City’s arguments for dismissal as “border[ing] on the frivolous” and “threadbare.”
