Friday, July 28, 2017

Other Racial Groups

Where We've Been: Legal Constructs, and Consequences, of Race in America and the Historical Racialization of American Muslim Identity

Amara S. Chaudhry-Kravitz

Excerpted from:  Amara S. Chaudhry-Kravitz, Is Brown the New Black?: American Muslims, Inherent Propensity for Violence, and America's Racial History, 20 Washington and Lee Journal of Civil Rights and Social Justice 3 (Fall, 2013)(66 Footnotes)

Amara Chaudhry-Kravitz-02* * * [My thesis is simple. I assert that the criminalization of American Muslim group identity is a by-product of two things: (1) the historical racialization of that identity as a "non-white" racial category, and (2) the presumption, throughout American history, that "non-white" persons have an inherent propensity for violence and criminality.

* * *

Before I delve too deeply into the substance of my remarks, I want to take a moment to define my terms.

Throughout my remarks, I will use the phrase "American Muslim." When I use this term, I am referring to persons living in the United States who either self-identify as "Muslim," or who are identified by others as "Muslim" regardless of whether the basis of that identity lies in internal religious beliefs, externally articulated religious beliefs, and/or externally *6 expressed religious practices. The term "Muslim" shall apply to any such identified persons regardless of race, ethnicity, national origin, or country of familial origin. The term also applies irrespective of an individual's country of citizenship, whether a person is an immigrant or American born, and regardless of the duration of the individual's, or the individual's family's, history in the United States.

When I speak about "criminalization," I'm speaking about explicit, implicit, or even unconscious use of Muslim identity as either an ex ante basis for predicting an individual's propensity for violence or likelihood to engage in criminal behavior in the future, or as an ex post facto basis for determining the likelihood that an individual has engaged in violence and/or criminal behavior in the past or present.

*7 When I speak of the "racialization," I am referring to the extent to which American Muslim identity is construed, and has been historically construed, as a racial category. As I describe below in Part III, below, I believe that it is undisputed that American Muslims have a socially constructed group identity, and this group identity has been criminalized. The question, which is examined by this article, is whether that socially constructed group identity is, and should be understood as, a racial identity. In answering this question, I will argue that American Muslim should be construed as a racial identity, I will describe how Muslim identity has been socially constructed as a "non-white" racial identity in a nation which has a long history of assuming that persons who belong to populations consisting mostly of individuals with black or brown skin have a higher propensity for violence and criminality. Therefore, considering American Muslim identity in the context of American racial history and the historical *8 criminalization of non-white racial identity, I argue that American Muslims have been criminalized on the basis of their group identity precisely because their group identity has been racialized as a "non-white" racial identity.

In order to understand the concept I label as "racialization," it is necessary to distinguish between anti-Muslim bias (specifically, the criminalization of American Muslim identity), which is, in effect, a racialized bias, and anti-Muslim bias, which is a religious bias. When I refer to a racialized bias, I refer to a belief (possibly, unstated or even unconscious) that American Muslims have an inherent propensity for violence as an intrinsic and organic part of their very being. This propensity is inborn, immutable, and cannot be removed by converting to another religious faith or otherwise altering one's religious beliefs or practices. This racialized bias against American Muslims should be understood to be separate and distinct from a belief (which, again, may be unstated or even unconscious) that Muslims' belief system encourages violence and that a Muslim can be "cured," as it were, from his propensity for violence by converting to another faith or otherwise altering his religious beliefs. As one scholar phrases it, "In a religious conflict, it is not who you are but what you believe that is important. Under a racist regime, there is no escape from who you areor are perceived to be."

* * *

So we know that this is where we are now: American Muslims have been "criminalized," and it appears as though the underlying predicate of that criminalization rests both in some sort of socially constructed "racialized" American Muslim group identity and on the basis of wholly mutable characteristics such as individualized beliefs and behavior.

Now, I want to step back a minute to discuss "Where We've Been." If, as I suggest, the criminalization of American Muslim identity post-9/11 is based, at least to some extent, upon socially constructed notions of *15 "race," then there are new questions to discuss. First, can a religious identity be "racialized," or are racial and religious identities two separate social constructs? Second, if religious identity can be "racialized," what is the evidence that American Muslim identity has been "racialized?"

I will answer these questions concurrently, beginning with cases that demonstrate that American Muslim identity, a seemingly religious identity, has been historically construed as a non-white racial identity as a matter of law. The very existence of this body of case law, and the language contained therein, is evidence that a religious identity can be "racialized" and, by way of an example, that Muslim religious identity has been so racialized.

The greatest evidence of this racialization of American Muslims as "non-white" is contained in cases which are known as the "racial prerequisite cases." These are cases that were decided during the time period beginning in 1790 and ending in 1952 in which the Naturalization Act limited American citizenship to what was called "free white persons," but without defining exactly who would be included in this particular racial category. The Act was later broadened in 1870 to include persons of "African nativity" and persons of "African descent" and again in 1940 to include "races indigenous to the Western Hemisphere." During this time period, any persons who immigrated to the United States who did not qualify as either a "free white person," a person belonging to a race "indigenous to the Western Hemisphere," or a person of "African nativity" or "African descent" could lawfully enter the United States but could not be naturalized as a citizen of the United States. In the racial prerequisite *16 cases, an immigrant filed an application for citizenship and a federal court, when considering whether to grant that decision, was faced with the question of deciding whether the immigrant could lawfully claim to be "free white persons" and, therefore, eligible to become a citizen under the Naturalization Act.

Specifically, I want to discuss some racial prerequisite cases, which involve petitioners from the Muslim-majority world, or other nations within the Greater Middle East. The purpose of this discussion is to demonstrate the extent to which religious identity or affiliation was historically used, in the context of the racial prerequisite cases, by federal courts to make a legal determination as to race.

The first case I want to talk about is In re Hassan, which arose out of the Eastern District of Michigan in 1942. In that case, a Yemeni Muslim man was petitioning a federal district court to be naturalized as a citizen of the United States. As he petitioned the court, Mr. Hassan employed a tactic which was common among petitioners in the racial prerequisite cases asserted that he was a member of the "white race" due to the fact that he belonged to an ethnic group which "are remote descendants of and therefore members of the Caucasian or white race. . . ." Mr. Hassan also seemed to assume that his physical appearance-which, as the court noted in its decision, included an "extremely dark complexion" pose an obstacle to his ability to claim to be a member of the "white" race because he came to court "armed with affidavits" stating that his coloring ‘is typical of the majority of Arabians [sic] from the region from which he *17 comes, which [in] fact is attributed to the intense heat and the blazing sun of that area."

The court ultimately rejected Mr. Hassan's assertion that he was a "free white person" and denied his petition for naturalization. However, the court did not base its denial upon either Mr. Hassan's stated ancestry (as a remote descendant of the Caucasian or white race) or upon his physical appearance (including the "extremely dark complexion"). Instead, the court denied Mr. Hassan's petition because he came from a region of the world where Islam was being practiced. The court specifically gave the following reason for its decision: "Apart from the dark-skin of the Arabs, it is well-known that they are a part of the Mohammedan [sic] world and that a wide gulf separates their culture from that of the predominately Christian peoples of Europe."

This language in Hassan raises several interesting points. First, and most obviously, the court uses Mr. Hassan's Muslim identity as a basis for defining his race as non-white. Second, the court indicates that "Christian" identity is necessary to be considered a "free white person" person eligible for citizenship. Third, and most intriguingly, the court seems to base its decision not on Mr. Hassan's individual religious identity, but upon the majority religion in the region of the world from which Mr. Hassan emigrated. This is an example of the racialization of Muslim identity-the notion that this particular religious identity applies to all persons who possess the same set of immutable characteristics, such as a shared ethnicity, regardless of any individual's particular religious beliefs. Indeed, the court's language fails to identify whether Mr. Hassan, as an individual, identifies as "Muslim" or practices the Islamic faith. Instead, the court only identifies Mr. Hassan as belonging to an ethnic group, "Arab," which is associated with the Muslim-majority world. Mr. Hassan is deemed non-white because his ethnicity, an immutable characteristic, imparts upon him a Muslim identity. Based upon this language, it would appear that the *18 judge construed Muslim identity in such a racialized manner that the religious beliefs and practices of Mr. Hassan were legally irrelevant.

This question of whether a person's individual religious beliefs affect his racial identity is commonly repeated in the racial prerequisite cases and produce conflicting results. In the case of In re Ellis, a Syrian immigrant was allowed to obtain citizenship as a free white person because, as the court noted, "he was reared a Catholic and is still of that faith." In another case involving a Syrian immigrant, Ex parte Shahid, the court denies the petitioner's citizenship application on grounds other than the petitioner's race, but articulates his discomfort with the notion that the definition of "free white persons" should exclude a consideration of religious identity. Limiting the definition of "free white persons" solely to "Europeans," the judge explained, that it would be troubling since such a definition "would exclude persons coming from the very cradle of the Jewish and Christian religions." Though the judge in Shahid never clarified whether he believed that an individual's religious beliefs or practices, or whether the relevant factor was the predominate religion in a petitioner's country of origin, the judge nonetheless clearly opines that religion should be a consideration when legally defining an individual's race.

More interesting generally are the cases involving Armenian immigrants during this time period. For example, in United States v. Cartozian, a federal district court in Oregon granted an Armenian immigrant's citizenship petition on the stated belief that Armenians, on account of their religion, could be defined as free white persons eligible for citizenship. Specifically, the court opined, "[a]lthough the Armenian province is within the confines of the Turkish empire, being in Asia Minor, the people thereof have always held themselves aloof from the Turks, the Kurds, and allied peoples, principally, it might be said, on account of their *19 religion." In other words, Christianity makes the Armenians more culturally aligned with Europeans and this religious commonality makes the Armenians "white." In another naturalization case involving an Armenian petition, In re Halladjian, a federal district court sitting in Massachusetts opined:

"Race . . . is not an easy working test of white color. In the warfare which has raged since the beginning of history about the eastern Mediterranean between Europeans and Asiatics, the Armenians have generally. . . been found on the European side. By reason of their Christianity, they generally ranged themselves against the Persian fire-worshippers, and against the Mohammedans."

As in Cartozian, the court in Halladijan once again concluded that Armenians, due to the historic Christianity of their nation, are culturally aligned with Europeans and, therefore, their collective historic Christianity makes them, as a people, "white." Once again, the court is unclear whether an individual's religious identity is legally relevant but, once again, the court clearly articulates a racialized view that the historical majority religion of a people determines that group's racial identity.

This racialization of a religious identity is not unique to Muslims or to the United States. Consider, for example, the discourse and dialogue that surrounds Jewish identity and the definition thereof. Or, perhaps more appropriately, consider the way in which non-Jews have defined Jewish identity during certain periods of history. Above, I referenced two interesting points raised by the first case I discuss in this subpart, In re Hassan. However, the third point raised by the Hassan decision is, perhaps, the most intriguing. The Hassan decision was entered in 1942. Now, let us think about what was happening in world history in 1942 and whether there was any other part of the world, outside of the United States, in which a federal government was determining "whiteness" (or inclusion in the "Aryan," "European," or "Caucasian" race) on the basis of religion? Right? Now, keeping this concept of world history in mind, let's actually think about the Third Reich for a moment. Remember that Jewish identity was often determined by ancestry. If you were born a Jew you were a Jew. You could try to convert your way out of it, you were still a Jew. As noted by one scholar, "anti-Semitism became racism when the belief took hold that Jews were intrinsically and organically evil rather than merely having *20 false beliefs and wrong dispositions." In other words, religious bias predicated upon actual or perceived religious beliefs and practices is not racism, as a person is able avoid this bias by changing their religious beliefs and practices. However, "religious" bias which relies upon a (stated, unstated, or even unconscious) belief that persons belonging to a certain religious group are "intrinsically and organically evil"-regardless of their religious beliefs or practices-is racism, and an individual cannot avoid this bias by converting to a different religion.



The title of this article, borrowed from the world of women's fashion, may at first seem to trivialize a complex, multi-faceted topic of sociological, legal, and political significance. The author chose this title for stylistic reasons-though her thesis would arguably have been more effectively articulated if the title was: "Is ‘Brown' Actually a New Shade of ‘Black'?" To clarify the use of color words in the title, the term "brown" is a short-hand expression commonly used by Muslims of varied racial and ethnic backgrounds and divergent physical characteristics when referring to the equally diverse and pluralistic American Muslim community. The term "black" in the title is a shorthand expression frequently used by Americans of culturally diverse backgrounds to refer to African Americans. In using this term, the author is fully aware that African Americans occupy a unique position in American society as a result of a very particular cultural history and a shared contemporary experience of the present-day legacy of that history. As stated below, the author's thesis rests upon her assertion that America's racial history is largely dependent upon a socially constructed white/non-white binary in which persons defined as "non-white" are presumed to have an inherent propensity for violence. The author's choice of tile derives from the fact that the primary example of this racial binary in American culture, and the presumptions of violence which apply thereto, in the United States is the black/white binary. Though "brown" may not be "the new black," the author asserts that "brown" is certainly a shade of "non-white" and that it would be helpful for American society to dialogue about the similarities and differences between these distinctions.

This article asserts that American Muslims are perceived as having an inherent propensity for violence and theorizes that this perception is related to an American racial history, which has a long history of perceiving "non-white" persons in this manner. It is this perceived inherent propensity for violence that is referenced in the title for this article, though the word "perceived" has been omitted for stylistic reasons.

 Amara Chaudhry-Kravitz currently serves as legal director for the Council on American-Islamic Relations Philadelphia Office (CAIR-Philadelphia).


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