Why religious freedom trumped national security in latest court case

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September 11th, 2010 marked 9th anniversary of the World Trade Center attacks. Events included 9th Commemoration ceremony and the Emergency Mobilization Against Racism and Anti-Muslim Bigotry rally. Photo by Viktor Nagornyy via Flickr.

September 11th, 2010 marked 9th anniversary of the World Trade Center attacks. Events included 9th Commemoration ceremony and the Emergency Mobilization Against Racism and Anti-Muslim Bigotry rally. Photo by Viktor Nagornyy via Flickr.

Guest post by Daniel Bennett

The Third Circuit Court of Appeals just issued a major ruling weighing the free exercise of religion against national security. And free exercise won.

September 11th, 2010 marked 9th anniversary of the World Trade Center attacks. Events included 9th Commemoration ceremony and the Emergency Mobilization Against Racism and Anti-Muslim Bigotry rally. Photo by Viktor Nagornyy via Flickr.

September 11th, 2010 marked 9th anniversary of the World Trade Center attacks. Events included 9th Commemoration ceremony and the Emergency Mobilization Against Racism and Anti-Muslim Bigotry rally. Photo by Viktor Nagornyy via Flickr.

In the aftermath of 9/11, New York City instituted a surveillance program aimed at preventing future attacks. Part of this program focused closely on Muslim citizens, fixing on mosques, businesses, schools, and individual households.

In 2012 a group of Muslim citizens sued the city for violating their First and 14th Amendment rights. As part of the lawsuit, they said that the program violated the Free Exercise Clause. For example, a U.S. Army soldier said he stopped attending his mosque due to fears his security clearance could be limited if the mosque was under surveillance.

A federal judge in New Jersey dismissed the suit last year, saying the group did not have standing to sue. The group appealed, and in January three judges from the Third Circuit Court of Appeals heard the case.


READ Religious freedom advocates win another unanimous Supreme Court decision


This week, the court issued its decision in Hassan v. City of New York: not only does the group have standing to sue, the surveillance program unacceptably burdens religious exercise in the name of national security. In short, New York City violated the constitutional rights of Muslim citizens.

Judge Thomas Ambro said the city’s program unfairly targeted citizens solely because of their religious beliefs. Importantly, even though the city did not demonstrate outright hostility toward this group, prior decisions have shown that animus is not necessary to violate the Free Exercise Clause – as an earlier case held, “good motives cannot save impermissible actions.”


SEE Rutgers Muslim students fearful for future in wake of NYPD surveillance


While the judges acknowledged the government’s interest in safeguarding national security, they were not convinced that such an interest should allow the government to trample individual liberties. Ambro referenced the infamous Korematsu decision, writing, “The past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.”

Ambro also said the disloyal actions of some should not implicate others based solely on shared characteristics. The state has “been down similar roads before,” with Jewish-Americans during the Red Scare and African-Americans during the Civil Rights Movement. According to Ambro, this program targeted religion in a similar fashion, rendering it unconstitutional.

Because of the lengthy process of appeals, it could be several years before this case officially ends.

But for now, let the following sink in: 14 years after the September 11 attacks, a federal court has said a government surveillance program has violated the religious rights of Muslim citizens.

Daniel Bennett (@bennettdaniel) researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University.

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  • Garson Abuita

    Non-lawyers should not be writing articles like this. The Court did not hold that New York City violated the constitutional rights of the plaintiffs. It found that the plaintiffs had standing to sue, and that they had made sufficient allegations to send the case to a trial before a jury,