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Excerpted from: Neil Gotanda, Reflecting on Race, Law and White Supremacy: Asian American and Muslim American Experiences, 45 Western State Law Review 147 (Spring, 2018) (15 Footnotes)(Full Document)

Neil GotandaI begin this reflection with a short note about myself - my subject position. I identify as a Japanese American, “ethnic Buddhist.” I was born and raised in Stockton, California, in the central valley. My family had returned so Stockton after being incarcerated in the Rohwer Arkansas Concentration Camp. My family had lived for a short while in St. Joseph Missouri where my older brother was born. They then returned to Stockton. Growing up in the 1950s, my primary community was the Japanese American Buddhist Temple. So my primary identification has been as a Japanese American and as an “ethnic Buddhist.”

I grew up on the “Southside” - the minority side of Stockton - a racially mixed neighborhood, including the oldest Sikh temple in America. Stockton is also known for its large and vibrant Filipino American community.

I like to think that these identities have been a frame for all of my legal and academic work. My first legal position was at the Asian Law Caucus, then in Oakland California. And my decision to go into legal education was significantly influenced by a Korean American Marxist who ran study classes in the San Francisco Bay Area. So my academic investigations actually began with puzzling through how Asians in America fit into our racial landscape. This was while I was working at the Asian Law Caucus, trying to figure out how to become a practicing attorney. Along the way, I went to the first Critical Legal Studies conference in Madison, Wisconsin. I taught the first Japanese Americans and the Law course at San Francisco State, immediately after the 1968 Third World Liberation Front student strike for ethnic studies. And I helped organize the first Critical Race Theory conference in 1989, also at Madison Wisconsin.

Yet my work on race in America has always been a complement to my personal exploration of being Japanese American and Asian American. In recent years, my interests have included not only the legal processes of race and racialization, but also how religion has become embedded in American racial subordination. After 9-11, the role of the Islam and the Muslim category moved to a central place in American social discussions. In many commentaries, treatment of Muslims has been compared to the treatment of Japanese Americans during World War II. In this reflection, I explore this connection.

For this reflection, I would like to pose two odd-sounding legal questions:

First: Is the Muslim Category a “racial” category in American law?

Second: Is the Muslim category a religion category?

And for both queries: What is the applicable constitutional test for judicial review?

I say these are odd, because at one level, there are obvious answers. Islam is a religion and a faith. So how can Muslims be a “racial” category? And as to the second, how can those of the Islamic faith NOT be a religious category? But, as is often said - it's complicated.

In addressing these questions, my focus is constitutional law and the historical development of these legal categories. I remain deeply committed to a search for social justice in the racial and religious contexts. But these are troubled times, and social justice raises difficult legal questions, even as at least some of the social answers would seem to be clear. We ought to be able to condemn racial violence and religious bigotry. As aspirational values for race and religion, I would argue for fairness, tolerance, diversity, and respect. These might seem modest, but the constitutional terrain has proven particularly treacherous. Accommodation to religious beliefs has morphed into a broad challenge to secular anti-discrimination legislation. Recent Supreme Court considerations include not only abortion, but also birth control. And public accommodations laws applied to gay wedding cakes remain under review, even after a Supreme Court decision

My first effort at analyzing Islam and race was a short social science journal article in 2011. In The Racialization of Islam in American Law, I argued that the treatment of Muslims could be seen as similar to the treatment of Asian Americans and that the Muslims were being racialized as Asian Americans. I believe that's still true, but more complicated. The Asian American has also changed. In addition, the Supreme Court has continued to move away from pluralistic concerns for religion. Instead, the Court has focused upon accommodation to a narrow set of self-identified Christian religious doctrines.

. . .

In his attacks on Muslims, with Travel Bans, threats of incarceration, and registration proposals, Trump has created an odd set of political bed-fellows: Muslims and Japanese Americans. Beyond their common immigrant heritage, these two communities have very little in common. There is no shared religious tradition, very little common geography, no similarities in language. In popular culture, no musical traditions other than hip-hop. There is no significant shared cuisine - a web search raw fish found a single reference in Indonesia.

What we do share is a particular, virulent form of government violence and the threat of violence. These threats are interwoven as aspects of race, foreignness, national security, foreign policy, spirituality, religion, and more. There does not appear to be any single dominant focus. We have much work to do - as lawyers, judges, academics and members of communities. Those are not simple identities. Beyond our professions, we act as members of complex communities of language, culture, ethnic and national traditions, and of course, our communities of faith. It is our curse to live in interesting times.