In Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling, Murad Hussain moves beyond the longstanding concern with governmental profiling on the basis of racial or religious group status. Hussain contends that antiterrorism profiling on the basis of religiously inspired conduct or cultural practices may also inflict “pervasive dignitary and stigmatic harms upon the Muslim American community.” Hussain proposes a doctrinal remedy for courts’ failure to address such group harms.
Hussain’s insightful analysis is far-reaching. But it does not reach far enough. He does not acknowledge that Muslim Americans may be substantially burdened even by investigative practices that do not entail any form of profiling. Moreover, his proposed doctrinal fix fails to recognize the legitimate anxiety about the judicial role that may underlie courts’ disinclination to invalidate antiterrorism measures that impose group harms.