Legalizing Othering: Institutionalized Islamophobia and the Subversion of U.S. Democracy

In the last year, Muslim Americans have reported a surge in anti-Muslim violence and hate. According to the Council on American-Islamic Relations, the United States’ largest Muslim civil liberties organization, in 2023, it received over 8,000 complaints of anti-Muslim incidents—the highest number of complaints in the organization’s 30-year history. There is also justified trepidation and deep angst among the Muslim American community with Donald Trump returning to serve a second term as president in 2025. Part of his hardline and discriminatory policies he promises to reinstate and expand include the notorious travel ban to bar Gaza refugees and threats to conduct “ideological screening” for immigrants.

So, what is Islamophobia? Islamophobia is a form of legal, political, and social othering of, and discrimination against, Muslims and those perceived to be Muslim. In the United States, Islamophobia at the interpersonal level is expressed through prejudicial views, discriminatory language, and acts of verbal and physical violence toward Muslims and those perceived to be Muslim. At the structural and institutional levels, Islamophobia manifests through the policing, profiling, surveillance, torture, and detention of people along racial/ethnic and religious lines, U.S. state laws, federal policies, U.S. national security policy, and the militarization of foreign policy.

Islamophobia in the Context of the United States and Institutionalized Islamophobia Post-9/11

In the United States, Islamophobia is built on the existing foundations of xenophobia, structural racism, and racialization and existed well before September 11, 2001. The contemporary understanding of Islamophobia, how it manifests, and its impacts vary greatly when examining Islamophobia before and after 9/11.

In the years preceding 2001, Islamophobia existed by way of individuals’ anti-Muslim bias, animus, and actions, while the post-9/11 period marks the beginning of the federal government’s operationalizing Islamophobia to scapegoat Muslims and to justify the expansion and consolidation of executive powers in the name of national security. Since 2001, 23 federal measures have been enacted that disproportionately impact Muslims, enshrining Islamophobia into policy at the federal level (Islamophobia Legislative Database, Othering & Belonging Institute, August 2023).

The post-9/11 political climate also provided the conditions for Islamophobic grassroots efforts to formalize, and by 2010, not only was there a growing grassroots Islamophobia network composed of politicians, anti-Muslim organizations, think tanks, pundits, and paid anti-Muslim activists, but that network was funded by a multi-million-dollar industry that promoted fearmongering, skepticism, and hate toward Muslims (Abbas Barzegar and Zainab Arain, Hijacked by Hate: American Philanthropy and the Islamophobia Network, Washington, DC: Council on American-Islamic Relations, 2019).

At the state level, the Islamophobia grassroots movement did not come into existence by happenstance. It resulted from several culminating factors, including the rise of racial anxiety and animosity associated with the 2008 election of President Barack Obama, the financial crisis of 2009, an increasingly diverse U.S. population, and a shift toward liberalism and multiculturalism. These social and political shifts increased racial anxiety felt by many conservative communities and helped create the conditions for the U.S. Islamophobia movement to take hold at the grassroots level. This period marked the beginning of the U.S. anti-Sharia movement, as less than a decade after 9/11, state lawmakers led efforts to institutionalize Islamophobia by introducing and enacting anti-Sharia legislation, giving rise to organized efforts at the state level to legalize Islamophobia.

Since 2010, 233 anti-Sharia bills have been introduced in statehouses across the United States. Twenty bills have been enacted into law in 13 states, and 44 U.S. state legislatures have introduced anti-Sharia legislation. The only anti-Sharia act or amendment to have been struck down was the Oklahoma “Save Our State Amendment,” in which a federal court in 2013 ruled that the amendment violated the First Amendment of the U.S. Constitution.

The majority of anti-Sharia bills refer to the American Laws for American Courts model act that uses anti-foreign law language as a smokescreen to discriminate against the use of Sharia in state courts. The movement to introduce these bills was shockingly prolific due to anti-Muslim activists and lawmakers successfully embedding a narrative in U.S. society that peddled a fear of “creeping Sharia” and that Muslims sought to infiltrate the U.S. judicial system. These efforts simultaneously roused the attention of predominantly republican lawmakers and increased a climate of intolerance, distrust, and fearmongering.

To challenge the Islamophobic rhetoric and disinformation associated with Sharia, it’s important to note what Sharia is. Islamic law experts define Sharia as a moral code or guiding principles founded on the teachings of the Quran and the Hadith (the teachings and actions of the prophet Mohammed). The interpretation of Sharia is called “fiqh,” meaning Islamic jurisprudence; however, Sharia is not the equivalent of Islamic law or an Islamic legal system. It is an evolving methodology for devout Muslims to discern God’s guidance to lead an ethical and moral life. Sharia, therefore, guides Muslims on how to live and engage with the world, ranging from what they can or cannot eat to how they conduct business and personal affairs and more.

The most direct legal implication of anti-Sharia legislation is that it bars courts from enforcing individual contracts that call for the application of foreign law, including Sharia. Thus, infringing on an individual’s right to freedom of contract and preventing wills, marriage contracts, business contracts, etc., that are written in accordance with Sharia from being recognized or enforced. Anti-Sharia legislation therefore strips Muslims of their legal rights as afforded by the First Amendment and infringes on the Establishment Clause, as well as undermines the U.S. Constitution, and sabotages judges’ ability to fairly consider foreign law.

The harmful intent of these bills is to single out Muslims by way of barring the application of Sharia in U.S. courts and proliferate a culture of fear and intolerance toward Muslim Americans and communities. Crucially, anti-Muslim bills are sweeping, and the underlying reality is that anti-Muslim legislation threatens the civil and constitutional rights of not only Muslims but all individuals.

The Voices of Muslim Americans and the Impacts of Islamophobia

To better understand the impact of Islamophobia on Muslim Americans, in 2020, the Othering & Belonging Institute at UC Berkeley, where both authors work,  administered the first national survey to assess Islamophobia’s prevalence from the perspectives of Muslims. The study also accounts for the diversity of U.S. Muslims and assesses their societal engagement, worldviews, and sense of belonging. The survey ran in 2020 from October 14 to November 2 and surveyed 1,800 Muslim Americans across the United States. Of those, 1,123 respondents met the criteria for their responses to be included in the data analysis.

The survey’s initial design included in-person focus groups with Muslims representing different backgrounds (female college students, parents, professionals, etc.) to assess the study’s viability, obtain diverse perspectives, and gather relevant concerns surrounding the impacts of Islamophobia on U.S. Muslims. However, due to the pandemic, we held only one in-person focus group with Muslim female college students. We also requested feedback on the survey questions and design from external reviewers with expertise in survey design and who also study and research Islamophobia and its impacts.

Qualtrics, a web-based survey platform, designed the survey, which was disseminated online by email, social media posts, ads, and the networks of individuals and organizations that supported the project. The research team also developed a robust database to disseminate the survey to Muslim individuals, Muslim-serving community organizations, institutions, and mosques across all U.S. states. Participation in the survey was limited to those who gave consent, were 18 years of age or older, identified as Muslim, and lived or worked in the United States. Survey outreach and dissemination were not selective and intended to engage as many U.S. Muslims as possible.

In the survey’s assessment of Muslims’ perceptions of Islamophobia in the United States, 95 percent of participants agree that Islamophobia is a problem. Almost three-quarters of participants believe that women are more at risk of experiencing Islamophobia, and 55.4 percent have personally encountered an Islamophobic incident but did not report it to the authorities. Only 12.5 percent of participants have reported an incident.

In assessing U.S. Muslims’ experiences with Islamophobia, the pervasive impact of anti-Muslim laws and policies is evident, as 62.7 percent of participants responded that they themselves, family members, friends, or members of their community have been affected by federal and/or state policies that disproportionately discriminate against Muslims. Additionally, 93.7 percent of participants responded that Islamophobia affects their emotional and mental well-being, and regardless of age, 88.2 percent of respondents censor their speech or actions out of fear of how people might respond or react to them.

The report also unpacks findings on the societal engagement of U.S. Muslims and provides an analysis of respondents’ efforts toward community building, intercultural mixing, and civic engagement, and how Islamophobia impacts those efforts. Lastly, the survey measures U.S. Muslims’ worldviews and belonging as related to their social and religious worldviews, their perspectives on race and relations between Muslims and non-Muslims, and their sense of belonging.

The survey’s findings help shift the narrative and accurately depict who Muslim Americans are, address the issues of discrimination that they face, and leverage their experiences to inform equitable policies that hold our political institutions and elected officials accountable. To review the full survey results, refer to the 2021 report, Islamophobia Through the Eyes of Muslims: Assessing Perceptions, Experiences, and Impacts.

Strategies to Combat Islamophobia

There is a critical need to devise strategies and policy interventions that combat the othering of Muslims. Together, we must uphold the fundamental American principles of equality before the law, our faith in democratic institutions, and our commitment to transformational change toward a world of belonging without othering. Recommendations for action items include but are not limited to:

1. Enact the Combating International Islamophobia Act introduced by Reps. Ilhan Omar (D-MN) and Jan Schakowsky (D-IL).
2. Work with state governments to rescind enacted anti-Sharia legislation and implement policies to prevent anti-Sharia legislation from being enacted.
3. Protect the rights of Muslim individuals as enshrined in our Constitution and rule of law and recognize Islamophobia as a form of religious discrimination and hatred based on national origin or other manifestations of hatred against ethno-religious groups.

Please note: The views expressed herein have not been approved by the House of Delegates, the Board of Governors, the Section of Civil Rights and Social Justice or the Human Rights Editorial Board of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association. They are the views of the individual authors themselves in their personal capacities.