Charges against a Chicago teenager accused of plotting to join ISIS should be dismissed, his lawyer argued, because the Religious Freedom Restoration Act (RFRA) allows him to act upon his religious beliefs – even if they’re a potential threat to the United States.
Thomas Anthony Durkin told U.S. District Judge John J. Tharp Jr. that the federal government had no right to interfere with Mohammed Hamzah Khan’s intentions to flee to Syria.“While it is easy to disagree with Mr. Khan’s unpopular religious beliefs and label them misguided, simplistic, or even fundamentalist, it cannot be said that [they] were not sincerely held — and that is all that must be shown,” he wrote in a recent motion.
The FBI arrested Khan and two of his siblings at O’Hare Airport in October as they prepared to board a plane for Syria. The trio left a letter for their parents that explained their intentions.
“An Islamic State has been established and it is thus obligatory upon every able-bodied male and female to migrate there,” it read. “Muslims have been crushed under foot for too long. . . . This nation is openly against Islam and Muslims. . . . I do not want my progeny to be raised in a filthy environment like this.”
Khan acknowledged to FBI agents that the “Islamic State” in the letter referred to ISIS.
Durkin also asked Tharp to release Khan, 19, from detention so that he could participate in a pilot counselling program intended to prevent the radicalization of American Muslims. “There is time to modify this behavior ... which is, I think, needed here,” he argued. “We can’t give up on these kids.”
The teen’s younger siblings, who are still minors, currently undergo similar counseling.
The Chicago Sun-Times also reports that Stephen N. Xenakis, a forensic psychologist and retired Army Brigadier General, is prepared to testify that the teenager is not fully radicalized, but instead lacks certain critical thinking skills.
Even if that’s true, the status of Khan’s radicalization has no bearing on his attorney’s argument that RFRA recognizes a religious freedom right to join ISIS.
The U.S. Supreme Court won’t accept that argument. Lower courts probably won’t accept that argument, either. Americans simply do not have a First Amendment right to join organizations that threaten our national security. It is the very definition of a governmental “compelling interest” to prevent them from doing so.
But it’s important to consider the legal context of Durkin’s assertion. It’s unlikely he would have enlisted RFRA in his client’s defense if the Supreme Court hadn’t ruled as it did in Hobby Lobby v. Burwell last year. In a 5-4 decision, the high court broadened RFRA’s reach, which led directly to more generous accommodations for religious practices.
That decision did not, of course, eliminate the government’s right to prove that it has a compelling interest to restrict certain forms of religious expression. But it did weaken that right by privileging religious expression over the enforcement of certain laws.
It’s also notable that Durkin focused on the sincerity of Khan’s beliefs. While he likely is a true believer, the Supreme Court majority in Hobby Lobby seemingly took sincerity for granted. Despite ample evidence that Hobby Lobby invested in drug firms that produce emergency contraceptive pills, intrauterine devices and drugs commonly used in abortions, the sincerity of that corporation’s leaders was assumed. Thus it isn’t likely, at least as far as some on the high court are concerned, that sincerity tests will come into play during RFRA cases.
Prosecutors have until June to respond to Durkin’s motion. They will almost certainly argue that Khan’s actions aren’t protected by RFRA, and they’d be correct to do so. As fringe as his argument is, it’s a reminder that a broadly interpreted RFRA may open doors that should have remained shut.