An Unlikely AlignmentAsma T. Uddin January/February 2024
What could “interest convergence theory” mean for the religious liberty rights of Muslims and Christians?
Illustrations by Michael Glenwood
In December 2020 the U.S. Supreme Court in Tanzin v. Tanvir ruled unanimously in favor of three Muslim men who say they were placed on the no-fly list by FBI agents in retaliation for their refusal to spy on their religious community. In an opinion delivered by Justice Thomas, the Court stated the plaintiffs were entitled to seek money damages from the agents. The ruling was a big win for the Muslim men and the Muslim community generally, who have been treated with suspicion since 9/11. But the case was also a victory for conservative Christians who advocate for broad protection of religious rights. In this way, Tanzin is an example of the late Harvard law professor Derrick Bell’s seminal “interest convergence theory,” which points out how a marginalized minority wins significant rights when its interests align with that of the powerful majority.
Tanzin v. Tanvir
In Tanzin the three Muslim men brought their case under the Religious Freedom Restoration Act (RFRA), a federal law protecting religious freedom. They argued that the FBI forced them to choose between their religious beliefs and being subjected to the punishment of placement on the no-fly list. The lead plaintiff in the case, Muhammad Tanvir, worked as a long-haul truck driver who often had to fly home after he completed his deliveries. In October 2010, as he tried boarding a flight in Atlanta, he was turned away and instead taken by two FBI agents to a bus station, where he had to take a 24-hour bus ride home.
Tanvir quit his job—but the difficulties continued. On multiple occasions he bought plane tickets to visit his ailing mother in Pakistan, but in each case he was not permitted to fly. Throughout this period, he was informed by FBI agents that they could help him get off the no-fly list if he agreed to serve as an FBI informant. The two other men in the case alleged they were placed under similar pressure.
After the plaintiffs sued the agents in 2013, the government took the plaintiffs off the no-fly list. But there was no guarantee the government wouldn’t put them back on it, and there was also no compensation for the hardship and loss the men suffered because of their placement on the list. This raised the question of whether the plaintiffs could sue the FBI agents for money damages under RFRA. In the 2020 ruling the Supreme Court said yes.
The Religious Freedom of American Muslims
The Muslim community has suffered from pervasive surveillance tactics since September 2001.2 For decades the government used informants and other targeted programs to infiltrate Muslim spaces, making many Muslims afraid to even attend their local mosque or wear religious garb for fear of attracting the FBI’s attention.3 In their fight against such intrusive practices, Muslims have been aided mostly by liberals, while conservatives have favored government surveillance above civil liberties. But in the unanimous Tanzin decision the conservative justices abandoned that posture and recognized the harm inflicted on Muslims’ religious practice in the name of national security.
The decision also shifts the recent narrative that the conservative justices treat Christian claimants better than Muslim ones. In Trump v. Hawaii the Court upheld President Trump’s travel ban against five majority-Muslim countries. In so holding, the Court said the president’s extensive anti-Muslim remarks were irrelevant to its inquiry because, in national security and immigration matters, the president had near-total discretion. This ruling came as a shock to many Americans, since the Court just three weeks before the travel ban ruling had held in favor of a Christian baker who declined to bake a wedding cake for a gay couple. In Masterpiece Cakeshop v. Colorado Civil Rights Commission the Court held that a series of anti-Christian statements by the Colorado commission was enough to invalidate its actions against the baker.
Then, in February 2019, Alabama executed Domineque Ray, a Muslim death row inmate, without accommodating his request to have an imam in the room with him. The clergy allowed in the execution chamber were limited to the ones on staff, but the prison only employed Christian clergy. Ray challenged the prison’s denial on religious liberty grounds. His case made it to the U.S. Supreme Court, which ruled against him and permitted the execution to proceed without the imam. The decision shocked many Americans, leaving them wondering, in the words of the New York Times Editorial Board, “Is religious freedom for Christians only?”4
Tanzin countered claims of Christian favoritism by delivering a decisive win for Muslims, and, remarkably, it did so by prioritizing Muslims’ religious exercise over purported national security interests. The case marks a shift in both the legal and cultural narrative, and RFRA paved the way, in a classic instance of what Professor Bell termed “interest convergence.”
Interest Convergence Theory
In his seminal piece, Brown v. Board of Education and the Interest Convergence Dilemma,5 Bell argued that the justices in Brown declared racial segregation in public schools unconstitutional partly because desegregation benefited whites too. It wasn’t just the “immorality of racial inequality” that mattered, Bell wrote, but also the value of the decision—issued less than a decade after World War II—to “whites in policymaking positions” who saw “economic and political advances at home and abroad that would follow abandonment of segregation.” The decision provided “immediate credibility to America’s struggle with Communist countries to win hearts and minds of emerging third world peoples.” Brown also offered reassurance to American blacks returning from the war who needed to know that the concepts of equality heralded abroad mattered at home too. White policymakers were deeply concerned about serious domestic disruption upon the veterans’ return and sought to lower the temperature by offering concessions.
Twenty years after Bell proposed his theory, historian Mary Dudziak presented reams of evidence supporting it. In a 1994 Stanford Law Review article and her book Cold War Civil Rights: Race and the Image of American Democracy, Dudziak presented correspondence, speeches, and other documentation from State Department officials, Supreme Court justices, and others to demonstrate that the ruling in Brown had more to do with cold war tactics than a desire to protect the humanity and rights of American blacks.
In the years since Bell first formulated his theory, scholars have extended it to complicate the analysis of other Supreme Court decisions that are often celebrated as moral breakthroughs.6 Writing about such cases as Hernandez v. Texas, Plyler v. Doe, and Grutter v. Bollinger, scholars have argued that the Court ruled as it did in order to serve elite interests—even if on the face of it, each ruling backed the rights of marginalized communities. Beyond such case analyses, interest convergence has also been used to examine examples of political coalition-building that have brought together unlikely partners.
Religious Liberty Interest Convergence
The theory can also be extended to Tanzin, in which majority and minority interests converged around a broad interpretation of RFRA. After all, the ability to sue for money damages under RFRA is important not just to Muslim plaintiffs but also to conservatives Christians, who have, in the past few decades, felt increasingly embattled. In response to a culture they feel despises them, Christian conservatives have brought religious claims to carve out their ability to live according to their religious beliefs. In the LGBTQ context, for example, some conservative Christians have, like the baker in Masterpiece, refused to produce goods that they feel makes them complicit in same-sex weddings. In turn, states have penalized Christian vendors for violating anti-discrimination statutes.
As writer Ian Millisher predicted in Vox, Tanzin helped change the calculus in these cases. Under the Court’s ruling, government officials risk personal liability if they violate religious freedom, which means they might think twice before enforcing nondiscrimination laws against religious conservatives. This might have motivated at least a few justices to protect Muslims’ rights in a context they generally have less sympathy for—national security—even repudiating the Trump administration, which asked the Court to dismiss the suit because it would interfere with “sensitive matters of national security and law enforcement.”
Many conservatives today fret that religious freedom faces real threats. In the months surrounding the Tanzin ruling, Justice Thomas, who wrote the Tanzin opinion, and Justice Alito issued very public and emphatic statements about the current threats to Christians’ religious freedom.7 We are seeing “previously unimaginable restrictions on religious liberty,” Alito warned at a conference. Tanzin gave them a way to fortify their religious freedom shield against those threats.
What’s more, given the pandemic context in which the Tanzin decision was issued, the conservative justices were attuned to the need for religious liberty protections in times that otherwise require great deference to the government. The Court’s 2020 COVID-19 ruling in favor of religious congregations was so protective of religion that it has been called the “anti-Korematsu” (referring to Korematsu v. United States, in which the Court upheld President Franklin D. Roosevelt’s executive order authorizing the internment of Japanese Americans in the aftermath of Imperial Japan’s attack on Pearl Harbor).8 It was an anti-Korematsu because, despite the “serious health effects of the pandemic” and the need to defer to the “complex choices by elected officials,” the opinion demonstrates strong “judicial solicitude for constitutional rights” and a “judicial willingness to protect against discrimination, even under emergency circumstances in which life is on the line.”
The conservative justices took this major step because religion was involved. And it was not just any religion that the conservatives were worried about. Both the politicized religious liberty context and the impact of COVID-19 restrictions on houses of worship created a context in which the conservative justices were alert to the needs of conservative Christians in times of emergency. The pandemic made the plight of Muslims more relatable to conservatives generally and the conservative justices in particular.
From an interest convergence perspective, Tanzin offered these benefits in ways Trump v. Hawaii did not. That case offered the conservative justices strong disincentives and weak incentives to support Muslims’ religious freedom. Commenting on why the Hawaii decision failed to elicit disapproval from conservative religious-liberty advocates, one Washington Post writer noted: “To take a stand against the ‘Muslim ban’ is also a stand against Trump, who remains popular among conservatives and white evangelicals, and for the rights of foreign Muslims, who are often vilified by conservative Christian activists.”9 The travel ban was one of the central promises of Trump’s 2016 campaign. His name was in the case title. To oppose the travel ban was to oppose Trump.
At the same time, Hawaii preceded the COVID-19 pandemic by several years. Without the pandemic, there was no real-world context in which Christians’ religious liberty interests in America were threatened by a state of emergency. The COVID context was necessary for a conservative “anti-Korematsu,” and without that context, the incentives to avoid deferring to the government were weak at best.
In many ways, religious liberty has fallen victim to the broader phenomenon of extreme political tribalism taking hold in America today. White conservative Christians and religious minorities, especially Muslims, often find themselves pitted against each other in the legal and political arenas.
Charting a path forward requires a realist take on human nature. Interest convergence theory is that realist strategy; it is a recognition that although altruism is possible, for society-wide change something more is needed. Bell’s materialist school of thought posits that humans with power will cede some of that power only if there is something in it for them.
Although this may be a pessimistic take on human nature, interest convergence theory also offers hopeful possibilities—possibilities of unlikely partners working together. Religious liberty interest convergence does not require the involved parties to agree on the substance of each other’s claims for them to work together to achieve robust legal protections. Social scientists refer to this as “tolerance,” that is, the process by which individuals put up with others’ beliefs and practices, not because they agree with them but because they seek a higher goal—in this case, religious liberty. This type of tolerance is the reason at least one nationally influential conservative religious-liberty advocacy group encourages consistency across Christian and minority religious claims. At the core of its advocacy is the idea that each side can endure the other side’s practices and beliefs, even as they continue to vehemently disapprove of them.
In a context in which religious polarization is deepening and solutions are hard to imagine, religious liberty interest convergence might offer a rare, viable solution.
1 The ideas and themes of this article are addressed in greater depth in the author’s recent scholarly publication: Asma Uddin, “Religious Liberty Interest Convergence,” William & Mary Law Review 64, no. 1 (Nov. 28, 2022).
2 Rowaida Abdelaziz, “Pervasive Surveillance Tactics Have Haunted Muslim Americans for Years,” HuffPost, Dec. 16, 2020.
3 Diala Shamas and Nermeen Arastu, Mapping Muslims: NYPD Spying and Its Impact on American Muslims (Long Island City, N.Y.: Muslim American Civil Liberties Coalition [MACLC], and Creating Law Enforcement Accountability & Responsibility [CLEAR] Project, 2013).
4 Editorial Board, “Is Religious Freedom for Christians Only,” The New York Times, Feb. 9, 2019.
5 Derrick A. Bell Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93, no. 3 (January 1980): 518–533.
6 Richard Delgado, “Rodrigo’s Roundelay: Hernandez v. Texas and the Interest-Convergence Dilemma,” Harvard Civil Rights-Civil Liberties Law Review (CR-CL) 41 (2006): 23–65 (U. of Pittsburgh Legal Studies Research Paper Series).
7 Kalvas Golde, “At Federalist Society Convention, Alito Says Religious Liberty, Gun Ownership Are Under Attack,” SCOTUSblog, Nov. 13, 2020; and Melissa Quinn, “Thomas and Alito Take Aim at 2015 Gay Marriage Ruling as Supreme Court Rejects Kim Davis Case,” CBS News, Oct. 5, 2020.
8 Cass R. Sunstein, “Our Anti-Korematsu,” Harvard Public Law Working Paper No. 21-21 (Dec. 29, 2020).
9 Tobin Grant and Sarah Pulliam Bailey, “Why Some Religious-Freedom Groups Won’t Take a Stand on the Travel Ban,” The Washington Post, Apr. 25, 2018.