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COMMENTARIES ON ISLAM
Muslims And United States Law
United States law, at both the federal and state levels, generally provides robust protection of religious freedom and civil rights for Muslims living in the United States. However, as has been the case for other religious and ethnic minorities, Muslims have at times been deprived of certain rights and have a long history of engaging with the U.S. legal system in order to defend and expand their rights to live, work, and worship according to their beliefs.
Although Muslims, like other individuals, remain subject to all generally applicable federal and state laws, the U.S. legal system nonetheless provides Muslims with a wide variety of legal tools to assist them in finding ways to engage in practices that they believe are religiously required of them, but that may differ from general practices and norms. As discussed further below, some of the many areas in which U.S. law can provide Muslims with tools to further their religious practices include modes of dress, accommodation of religious practices, structuring of financial transactions, marriage and divorce, and inheritance. In most instances, therefore, Muslims face few obstacles to reconciling their desire to obey Islamic law with the requirement that they obey U.S. law.
U.S. Constitution
The U.S. Constitution contains a number of clauses that not only serve to protect Muslims’ religious freedom, but grant them full civil and political rights. Chief among these is the First Amendment, which contains two important provisions guaranteeing freedom of religion. The first, known as the Establishment Clause, prohibits Congress from making any law that would establish religion. In 1947, the Supreme Court held that this clause applied to states as well. It has been interpreted as prohibiting government from favoring any particular religion and setting fairly strict limits on government involvement in or support of any religious bodies or activities in general.
The second clause, known as the Free Exercise Clause, prohibits both the federal and state governments from passing laws that would interfere with an individual’s exercise of his or her religion. This protection includes both beliefs and practices, and while it is vast, it is not unlimited: the rights of others, as well as generally applicable criminal, health, and safety laws, may limit, or in some cases even trump, an individual’s right to engage in certain practices.
These two clauses also provide Muslims with freedom from religion. Unlike in some predominantly Muslim countries, Muslims in the United States are legally free not only in their beliefs, but also in their religious practices. A Muslim woman in the United States is legally free to choose whether or not to wear a head covering, in contrast to Saudi Arabia, where head coverings are mandated, or Turkey, where they are often legally prohibited in public spaces, such as universities. The twin guarantees of freedom of religion in the U.S. Constitution thus provide Muslims broad, albeit not unlimited, leeway in the observance of religious-based practices, while ensuring that these practices remain religious — that is, voluntary actions done out of religious commitment rather than state coercion.
A number of other constitutional clauses also serve both to protect Muslims’ civil rights and to enable them to use the legal system and legal mechanisms to engage in religious practices. Article VI proclaims that no religious test shall ever be required as a qualification to any office or public trust, while the Fourteenth Amendment ensures Muslims’ civil rights by its guarantees of due process and equal protection of the law to all individuals. The Contracts Clause, found in Article I, Section 10, which puts limits on states’ ability to restrict contracts, means that Muslims are often able to use private contracts as a way to structure relationships or business transactions in ways that help them fulfill what they believe to be their religious obligations.
Slavery, Immigration, And Citizenship
U.S. law has not always provided Muslims with such a broad array of rights. As has been the case with other religious and ethnic minority groups, in certain historical periods, laws have been used to limit the rights of Muslims within the United States, as well as to restrict the rights of Muslims to immigrate to it. During the colonial period and in the early years of the United States, a significant number of enslaved Africans were Muslims, such as Abdul Rahman Ibrahima Sori, an African noble who was captured and became a slave in Mississippi. The U.S. laws of that era were used to deny African slaves and their descendants, both Muslim and non-Muslim, free and non-free, their civil and human rights. In his decision in the now infamous 1856 Supreme Court decision of Dred Scott v. Sanford, Chief Justice Tanney held that “[a] free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States,” and further, that “the right of property in a slave is distinctly and expressly affirmed in the Constitution,” which guaranteed to citizens the “right to traffic in it, like an ordinary article of merchandise and property.”
Immigration and citizenship laws in the early part of the twentieth century often served as barriers to Muslim immigration and naturalization. The Immigration Act of 1917, with its explicit provisions barring virtually all Asian immigrants, as well as the implicit limits set by the nationality quotas in the Immigration Act of 1924, severely restricted the emigration of Muslims to the United States. Also, since 1891, U.S. immigration law has excluded ‘polygamists’ from admission to the country. Restrictions on naturalization, such as a 1923 Supreme Court decision that held that only a ‘white person’ was statutorily permitted to become a naturalized U.S. citizen, meant that courts often denied citizenship to darker-skinned Muslims.
The Immigration and Naturalization Act of 1965, which did away with the national quota system, had a profound impact on Muslim immigration to the United States. It resulted in an influx of Muslims from across the globe, including large numbers of highly educated Muslims who benefited from the Act’s preference system for skilled immigrants.
Equal Rights
Muslims are protected by a number of federal, state, and local laws prohibiting discrimination and requiring the reasonable accommodation of religious practices. Title VII of the federal Civil Rights Act of 1964 prohibits discrimination in public accommodation because of an individual’s race, color, religion, sex, or national origin. Many state anti-discrimination laws also include religion among their protected categories. Nonetheless, Muslims are not infrequently the target of discrimination, and in many cases have had to take employers or other entities to court to uphold their rights. For example, Muslims have prevailed in discrimination cases against employers in cases where they have been overtly discriminated again, such as being subjected to slurs, physical harassment, or taunts such as ‘terrorist’ or ‘Osama,’ by co-workers or supervisors, as well as more subtle forms of discrimination, such as being wrongfully terminated because of being Muslim or even being mistakenly assumed to be Muslim. Other cases have involved employers’ denial to accommodate Muslim employees’ religious beliefs or practices, such as engaging in daily prayers, or wearing a head covering or a beard. Under Title VII, private employers who have more than fifteen employees are required to reasonably accommodate such requests unless doing so would impose an undue burden. Since 2001, the number of employment discrimination claims by Muslims has risen steadily, due perhaps to a backlash from the 9/11 attacks and rising anti-Muslim sentiment, an increased willingness on the part of Muslims to file suit, or both. Not all such claims are successful, as claimants are often unable to meet the necessary burden of proof.
Title VII also applies to actions by government agencies. For example, federal and state regulations regarding photo identification will generally permit individuals to wear religious headgear; however, requests by Muslim women to wear a full face veil, known as a niqāb, are generally denied on the grounds that any infringement on religious freedom caused by such a denial is outweighed by legitimate government concerns about public safety and law enforcement. Other civil rights laws, including Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 (commonly referred to as section 1981), both of which prohibit discrimination on the basis of race, color, or national origin rather than religion, also serve to protect Muslims from other forms of discrimination, such as racial profiling during air travel (flying while brown).
Muslims, especially African American Muslims, have been instrumental in promoting the constitutional rights of prison inmates, including the right of religious minorities to carry out religious practices. Beginning in the 1960s, Muslims engaged in litigation that established the right of prisoners to assemble for religious services, to consult with a cleric of their faith, to possess religious publications, to wear religious symbols or clothing, and to receive food that conforms to religious dietary requirements. While recognizing such rights, courts have consistently balanced them against legitimate government interests regarding security and order within the prison setting. Currently, additional protections for the religious rights of prison inmates are provided by the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, which applies to federal prisoners, and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc, which applies to state prisoners. Under these acts, the government is prohibited from placing a substantial burden on a prisoner’s free exercise of religion unless that burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest.
RLUIPA also applies to land use, and has therefore become an important tool for Muslims in disputes over the building or expansion of mosques or Islamic centers. Cities and municipalities are legally permitted to use zoning ordinances to regulate land use. Although in some cases proposed mosques or Islamic centers are able to receive required zoning permits without issue, in a growing number of instances there is community resistance to such projects. Neighbors may raise legitimate concerns about noise, parking, traffic, aesthetics, or property values; however, in some cases these concerns have been mere pretexts, while in other cases opponents have been more blatant in their intolerance of Muslims. A proposal to build an Islamic center in downtown Manhattan, called Park51, for example, ignited a national controversy after opponents dubbed it the “Ground Zero Mosque” and claimed it was being built as a “victory monument” for the 9/11 attacks. RLUIPA not only limits governments in imposing zoning or other restrictions on religious institutions unless doing so is the least restrictive way of furthering a compelling government interest, but goes further, prohibiting governments from using zoning decisions to discriminate on the basis of religion.
Marriage And Divorce
Islamic law and practices regarding marriage and divorce differ in many significant ways from U.S. legal norms in this area, which sometimes creates challenges for Muslims. These challenges differ depending on whether the marriages and divorces were performed outside of the United States, pursuant to the law of another country, or took place within the United States.
In particular, because of the substantial immigrant population among Muslims in the United States, couples often marry outside the United States. In this case, if the marriage was legally valid in the country in which it was performed, then it will be legally valid in the United States, with some small exceptions, such as child marriages or polygamous marriages.
In the United States, most states require couples to obtain a marriage license, have their marriage solemnized before a state-authorized individual, and then register their marriage. Muslims may therefore engage in separate civil and religious marriage proceedings, or combine both the civil and religious aspects of their marriage in one proceeding, by having an imam or other religious or community leader who has obtained the proper state authorization perform the marriage. Many but not all Muslim religious leaders require couples to obtain a civil license before they will perform a marriage. The legal status of a Muslim couple who has married religiously without obtaining the necessary civil license depends on the state in which they live. Some states may recognize the marriage as valid under common law; other states will declare the marriage voidable but potentially valid depending on the circumstances; and a few states will declare a marriage without a civil marriage license to be void, depriving the parties of any rights and privileges that would normally accompany a marriage. As with foreign marriages, even if a marriage is religiously valid under Islamic law, a state will refuse to recognize it if it violates state law or public policy.
Under Islamic law, a marriage is primarily a contractual agreement, requiring a valid marital contract that must indicate the parties’ consent, specify the payment of a bridal gift, known as mahr, and be witnessed. In recent years, there has been an emphasis on using the marital contract as a way to protect the rights of the parties, especially those of the wife, by adding stipulations regarding monogamy, divorce rights, work, domestic responsibilities, or other issues. Although in theory such marital contracts, if properly drafted, should be enforceable in state courts under neutral principles of law, actual case law is rather inconsistent. Some states treat Islamic marriage contracts as prenuptial agreements. Some courts have refused to uphold certain Islamic marriage contracts as against public policy, such as a California appeals court that felt such a contract would allow the wife to “profit” from the divorce. In general, enforcement of Islamic marriage contracts tends to be highly fact-specific and complicated by the fact that in emotionally-charged divorce proceedings either the husband or wife may be trying to invoke “Islamic law” primarily in an attempt to obtain a more favorable settlement.
Recognition of a divorce obtained in a foreign country may be an issue for Muslim couples. Although, as a general rule, U.S. courts will recognize foreign divorce decrees as a matter of comity, courts may refuse to do so if one party was unaware of it or unable to protect his or her rights adequately. So, for example, if a Muslim husband seeks to obtain a divorce abroad in a jurisdiction that utilizes Muslim family law in an attempt to preempt potentially less favorable U.S. divorce proceedings, a state court is likely to refuse to recognize the validity of such a divorce. This was the outcome of a 2006 case where a court refused to validate a divorce that the husband claimed he had obtained over the phone from a judge in Lebanon the day before his wife filed for civil divorce in New Hampshire (In re Ramadan, 891 A.2d 1186 (N.H., 2006)).
Unlike at the beginning of the marriage, when the civil and religious aspects can be combined, in the case of divorce they are totally separate. In order to be divorced under state law, therefore, parties must obtain a civil divorce. Although some Muslims consider a civil divorce to be sufficient for religious purposes as well, most Muslims also obtain some sort of religious divorce. Under Islamic law, Muslim men are entitled to this unilaterally, but for Muslim women it can sometimes pose a problem. “Limping marriages” may result when a couple is divorced civilly but the former husband refuses to issue a religious divorce, thereby preventing the former wife from remarrying religiously. In such cases the woman may attempt to obtain a religious divorce decree from an imam or other religious figure. Such a decree has no civil legal validity.
In child custody cases, state courts generally give primary consideration to the best interests of the child. Accordingly, they will not enforce custody decrees or agreements, foreign or domestic, where custody has been determined according to Islamic-law principles, unless after reviewing the case the court decides that such an arrangement coincides with the best interests of the child.
Muslims’ Use Of U.S. Law
The flexibility inherent in the U.S. legal system provides many ways for Muslims who desire to observe Islamic law and traditions to do so. Muslims who wish to abide by Islamic inheritance rules, for example, may do so simply by writing a will, thereby bypassing default state intestate statutes. A burgeoning “Shari’a-compliant” financing sector provides Muslims who seek to avoid the use of interest (ribā) or investments in businesses dealing with alcohol, gambling, or other activities that they feel violate Islamic law, by structuring home financing, mutual funds, or other investments in a way that complies with both Islamic law and pertinent federal and state laws.
Many states have laws concerning the sale of ḥalāl meat and other foods, either combined with or modeled after similar legislation for kosher products. These laws generally serve a consumer protection function, ensuring that businesses disclose the basis for their claim that their products are ḥalāl and leaving it up to the individual consumer to determine whether the products meet his or her standards.
General contract law can also be utilized by Muslims to structure transactions in observance of Islamic law. For example, contracts may include a provision that disputes will be decided by binding arbitration. This paves the way for Muslims to engage in faith-based arbitration, similar to that used in Jewish rabbinic tribunals or Christian Conciliation. Although the use of such tribunals is not widespread, they are sometimes used for disputes between the board of a mosque and the mosque’s imam, for example, or between business partners who desire that their disputes be resolved pursuant to Islamic law or tradition. More frequently, Muslims in the United States will engage in non-binding, faith-based mediation.
Importantly, the flexibility and the voluntary nature of all such transactions or forums ensures that no particular interpretation of Islamic law can be considered official, giving Muslims in the United States great freedom in observing Islamic law as they see fit, including the freedom not to observe it at all. In all cases, U.S. federal and state law remain supreme and the final authority. Muslims may not violate generally applicable civil or criminal laws, even if they feel these laws conflict with their sincerely held religious beliefs. For example, in 2010 a New Jersey appeals court held that a husband’s belief that his actions were permissible under Islamic law could not be a defense to general criminal laws regarding domestic violence (S.D. v. M.J.R., 2 A.3d 412 [N.J. Super. 2010]).
Human Rights Abuses And Hate Crimes
Following the terrorist attacks of 9/11, U.S. Muslims have often borne the brunt of U.S. laws intended to identify terrorists and prevent future attacks. Immediately following the 9/11 attacks, for example, the Material Witness Law was invoked to take dozens of Muslim men in the New York area into custody, deny them due process, and use secret proceedings against them; a 2003 Justice Department report also found that there had been widespread abuse of such prisoners. From 2002 to 2011, a special registration system was put in place, called NSEERS (National Security Entry/Exit Registration System), which required non-citizen male residents of the United States, ages 16 to 65, from a list of “suspect” nations to register with immigration authorities. Thousands of Muslim men complied in good faith, only to be deported for minor immigration violations. Six weeks after the attacks, Congress passed the USA PATRIOT Act, which vastly expanded the rights of government to spy on its own citizens, while reducing oversight on such spying and limiting the ability to challenge searches. Muslim organizations and civil liberties groups claim that federal and state laws have been misused, resulting in often baseless searches and seizures, the use of informants to entrap individuals into terrorist plots, and spying on Muslims simply because of their religious affiliation.
Terrorist attacks, whether or not committed by Muslims, have frequently triggered a backlash against Muslims, or even individuals who are believed to look like Muslims, such as non-Muslim Arabs or Sikh men who wear a turban. Bias-motivated criminal attacks against individuals are generally subject to enhanced penalties under federal or state hate-crime legislation.
Anti-Shari’a Legislation
In 2010, voters in Oklahoma overwhelmingly passed a proposed state constitutional amendment designed to prevent states in the court from considering Islamic law, known as Shari’a, when making rulings. In January 2012, the Tenth Circuit Court of Appeals struck down the amendment, finding that it violated the Establishment Clause of the First Amendment. Over the past few years, a wave of similar, so-called “anti-Shari’a” legislation has been proposed in over twenty-five states, and passed into law in several. Many of these are based on model legislation entitled “American Law for American Courts,” promoted by a group called the American Public Policy Alliance. Although current “anti-Shari’a” legislative initiatives studiously avoid using the word “Shari’a,” or even “religion,” in order to withstand constitutional scrutiny, proponents of such legislation continue to tout them as a way to protect an individual’s constitutional rights from the perceived threat of Islamic Shari’a or other foreign laws. However, such legislation is unnecessary at best, because state courts already have the legal tools required to block the use or consideration of non-U.S. law that would violate a party’s constitutional rights. At worst, “anti-Shari’a” legislation generates new problems by creating legal uncertainty and inflaming anti-Muslim prejudice.
Muslims And United States Law
421 – 009
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Last Update: 02/2021
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