In the post-9/11 era, what exactly is meant by race? This essay claims that both domestic civil rights law and international human rights law simultaneously create and obscure racial identity increasingly constructed through Muslim religious identity. The argument unfolds in several parts. First, by analogy to the racial formation process that occurred with the Japanese American community after World War II, we argue that a group's religious identity can contribute to the perception of a group as a racially different and inferior "other." Second, among other elements, religious identity is under-analyzed as a key element of racial formation. Third, post-9/11 racial profiling--which is expanded in this essay to a more accurate term "terror-profiling"--includes many different racial groups sharing a common religious identity of being Muslim or appearing to be Muslim. Fourth, remedies for wrongful profiling based on religious affiliation (as opposed to freedom to worship) under domestic civil rights law or international human rights law are undeveloped or underdeveloped. In the U.S. context, the equal protection clause of the fourteenth amendment has not been read vigorously to include protection against state action of groups based on religious identity. Similarly, international human rights instruments curiously omit protections based on group religious affiliation. These combined omissions serve powerfully if silently to reinforce racial inferiority of Muslims both within and outside the United States. The essay concludes with various suggestions for law reform to address these gaps.
Margaret Chon and Donna E. Arzt,
Walking While Muslim, 68 LAW & CONTEMP.PROBS. 215