Religious Liberty and the Financial War on Terror
98 Pages Posted: 23 Mar 2014
Date Written: 2013
This Article looks at the intersection between the war on terror and the law of religious liberty as it applies to Muslim Americans. Focusing on the Muslim charity cases of the post-9/11 era, the essay argues that Muslim American religious liberty claims have been marginalized not because federal judges have internalized popular fears of Muslims as dangerous, but because of two doctrinal dynamics internal to First Amendment law. First, the law of material support of terrorism overrides religious liberty claims with the principle of fungibility, which denotes an organization’s inherent ability to offset the cost of illegal activities with innocent funds. That principle, systematically conflating legal and illegal forms of religious exercise, effectively turns a longstanding requirement of strict scrutiny, the least restrictive means test, on its head. Second, non-establishment and church autonomy have shifted the ground beneath free exercise. Because separation of church and state seems to require a “hands off” approach to the regulation of religious institutions, the sweeping measures of counterterrorism strategy fill the void. The Article points to Britain’s relative success in pursuing less drastic strategies against an establishmentarian backdrop. That experience suggests that fungibility is not so much wrong as irrelevant and unnecessary where proof of actual support for or knowledge of a specific act of terrorist violence is available. Nonetheless, fungibility is here to stay for the foreseeable future. The Article concludes by taking the measure of fungibility’s burden on the law of religious liberty more generally.
Keywords: religious liberty, first amendment, war on terror, Muslim americans, charities, free exercise, church autonomy, material support of terrorism, counter-terrorism
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