Property Lawfare: Historical Racism and Present Islamophobia in Anti-Mosque Activism

Abstract

This chapter concerns itself with the use of the law, legal institutions, and processes in anti-mosque activism and litigation to advance an social and political agenda that seeks to marginalize, if not expel, Islam and Muslims from mainstream America. It argues that even though anti-mosque activists who seek redress in courts most often lose, they “win by losing”— a phenomenon well theorized by law and social movement scholars. In other words, the strategy of litigating a narrow legal issue is not so much about winning the lawsuit but about using the courts to introduce social and political claims that further an Islamophobic agenda. Regardless of the legal outcome, anti-Muslim groups achieve significant results: their use of the law results in political consolidation of the anti-mosque movement, it keeps alive questions about Islam and Muslims’ ability to “belong” in the U.S., it demonstrates the willingness to fight for a dominant racial ordering that excludes minorities from some neighborhoods, and it forces the internalization of both social and material costs by the Muslim communities that go well beyond the costs of litigation. As critical race scholars and critical theorists have long argued, law itself is a political and indeterminate instrument. The “law is a central, if not the most central, participant in the broader project of Islamophobia.” Khaled Beydoun theorizes that Islamophobia from a legal perspective can be understood as three intersecting dimensions—private, structural, and dialectical. This chapter demonstrates this very intersectionality as it appears in anti-mosque activism. It analyzes how the private Islamophobia of community members can become galvanized into community action and through the use of the structures of the state (zoning commissions and courts) reinforce dialectical Islamophobia signaling that Muslims must explain, apologize for, and justify their actions even where those actions are entirely uncontroversial for other groups.