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On March 6, 2017, President Donald J. Trump issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (political activist Linda Sarsour, as well as 26 additional Muslim individuals) filed an emergency motion for a temporary restraining order and/or preliminary injunction. While other litigation opposing the revised Executive Order were filed to enjoin only Sections 2 and 6 of the revised Executive Order, in this case the Plaintiffs asked the Court to enjoin the enforcement of the revised Executive Order in its entirety. In order for the Plaintiffs to succeed, they had to prove that (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of the equities tips in their favor; and (4) an injunction would be in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).

Plaintiff Kevin Murray, an American taxpayer, sued Treasury Secretary Timothy Geithner and the Board of Directors of the Federal Reserve, arguing that the Emergency Economic Stabilization Act (EESA), which established the Troubled Asset Relief Program (TARP), violated the Establishment Clause of the First Amendment by allowing funds to be used to support companies that invest in sharīʿa-compliant financial instruments. Applying the Lemon Test to assess whether there was excessive entanglement between religion and state related to Islamic financial instruments, the Court concluded that there was not; specifically, it determined that the Islamic financial instruments comprised only a small percentage of the complete business portfolio, that the purpose of the EESA was not religious, and that the primary effect of utilizing the Islamic financial instruments did not support or hinder any religion. Accordingly, the Court granted summary judgment in favor of the defendants.

Plaintiff Kevin Murray, an American taxpayer, sued Treasury Secretary Geithner and the Board of Governors of the Federal Reserve, challenging use of the Troubled Asset Relief Program (TARP) funds created by the Emergency Economic Stabilization Act (EESA) to bailout AIG, a “market leader in Sharia-compliant financing.” The Court denied summary judgment in favor of the defendant, finding that the bailout of AIG by the government may raise First Amendment Establishment Clause issues. This decision was overturned in a 2011 appeal, in which this same Court granted summary judgment in favor of the defendant, holding that the plaintiff had not made out a sufficient case that would allow a jury to conclude, under the Lemon Test (which assesses whether there is excessive entanglement of the Government with religion) that the Treasury Secretary violated the Establishment Clause by allowing AIG investment in sharīʿa-compliant financial instruments.

Plaintiff Joey Kenneth Priddy, a Virginia inmate, filed this civil rights action alleging that the Respondents, various prison officials at Bland Correctional Center, violated his constitutional rights by allowing Muslim inmates to conduct prayer groups in common areas of the prison facility. The Plaintiff sought preliminary and permanent injunctive relief. The District Court dismissed the Plaintiff’s complaint, determining that the challenged prison practices did not deprive the Plaintiff of his constitutional rights. The District Court found that there was no violation of the Establishment Clause, because the prison officials allowed Muslim inmates to conduct informal prayer groups in common areas, but that this opportunity is equally open to any inmate of any other religious persuasion. Therefore, the accommodation of Muslim inmates’ beliefs did not constitute an improper endorsement of Islam over other religions.

Petitioner Muneer Awad sued defendant members of the Oklahoma Election Board seeking to prevent certification of election results of a proposed state constitutional amendment that would have prevented Oklahoma state courts from considering or using "Sharia Law." The Petitioner claimed this state constitutional amendment would have violated his federal constitutional First Amendment rights and sought a preliminary injunction. The Appellate Court determined that the Petitioner asserted the kind of direct injury-in-fact necessary to create First Amendment Establishment Clause standing. Specifically, the Appellate Court determined that because the amendment would have been certified a week after it was passed, the injury was imminent and not conjectural or hypothetical. The Appellate Court also found that the proposed amendment violated the Establishment Clause because it discriminated among religions, and was therefore subject to strict scrutiny. The Appellate Court ruled that the proposed amendment could not pass the strict scrutiny standard because the Oklahoma Election Board could not prove that the amendment was enacted to provide a compelling state interest, and therefore could not prove that the amendment was not “closely fitted” to that interest.

The ACLU brought suit objecting to the use of taxpayer money to fund what it termed a religious charter school as a violation of the Establishment Clause of the First Amendment. The defendant academy and its sponsor, Islamic Relief, submitted a motion to dismiss, arguing that they were not a state actor. The Court found that the evidence regarding Islamic Relief’s role as a state actor was not clear, and thus denied the motion to dismiss. The Court of Appeals affirmed this decision in 2011. As of August 2011, the case was still ongoing.

On March 6, 2017, President Donald J. Trump, issued a second Executive Order which barred, with certain exceptions, entry to the United States of nationals from predominantly Muslim countries. This order barred nationals from six Muslim-majority countries (the original seven except for Iraq), suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the International Refugee Assistance Project; HIAS, Inc., the Middle East Studies Association; Muhammed Meteab; Paul Harrison; Ibrahim Ahmed Mohomed; John Does Nos. 1 & 3; and Jane Doe No. 2) filed a Motion for a Temporary Restraining Order or a Preliminary Injunction. In an opinion by U.S. District Judge Theodore D. Chuang, the United States District Court for the District of Maryland found that the revised Executive Order should be halted because the Plaintiffs are likely to establish that Section 2(c) of the revised Executive Order, which issued the travel ban against citizens of the six designated Muslim-majority countries, violates the Constitution and federal law, specifically the Establishment Clause and Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2012).

The Plaintiffs argued that they had standing to assert the claim that the revised Executive Order violated the Establishment Clause because the “anti-Muslim views” underlying the Executive Order caused them stress and anxiety. The Court acknowledged that for “purposes of an Establishment Clause claim, non-economic, intangible harms to “spiritual, value-laden beliefs” can constitute a particularized injury sufficient to support standing. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997). Because the harm suffered by the individual Plaintiffs is “fairly traceable to the challenged conduct” in that the revised Executive Order will result in the disfavoring of Islam, the Court found that the Plaintiffs had standing to assert an Establishment Clause claim.

The Court further determined that in order to withstand an Establishment Clause challenge under the Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) test, (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’” Id. at 612-613 (citations omitted). The Court found that the Plaintiffs presented a convincing case that the revised Executive Order fails the Lemon test because there is substantial, direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. The Plaintiffs primarily relied on statements made by President Trump and his advisors, including a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on,” an interview with CNN in which Trump professed that he believed “Islam hates us” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace,” and a written statement about the December Berlin attack in which he lamented that people “prepared to celebrate the Christmas holiday” were killed by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

Rejecting the argument about neutrality on its face, the Court granted in part and denied in part the Plaintiffs’ motion. The Court issued a preliminary injunction barring enforcement of Section 2(c) of the Executive Order.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

On March 6, 2017, President Donald J. Trump, issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the State of Hawai’i and Dr. Ismail Elshikh, an American citizen of Egyptian descent who serves as the Imam of the Muslim Association of Hawai’i) filed a motion for a nationwide temporary restraining order.

The Plaintiffs argued that the revised Executive Order subjected them to discrimination in violation of the Constitution and the Immigration and Nationality Act 8 U.S.C. § 1101 et seq. (INA), because the Executive Order results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” The Plaintiffs pointed to public statements by the President and his advisors regarding the implementation of a “Muslim Ban,” which the Plaintiffs contended was the tacit and illegitimate motivation underlying the revised Executive Order. For example, the Plaintiffs pointed to a statement by President Trump that he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that “We don’t want them here,” and to an interview with President Trump in which he claimed: “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”

The Court found that the State of Hawai’i and Dr. Elshikh both had standing to assert their claims. The Court found that Hawai’i had standing due to the harms to the state’s proprietary interests as operator of public universities and due to preliminary data that indicated the revised Executive Order had suppressed international travel and injured tourism as Hawai’i’s main economic driver. As for Dr. Elshikh’s standing, the Court observed that the injury-in-fact prerequisite can be “particularly elusive” in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. “Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing.” See Catholic League, 624 F.3d at 1048-49; Vasquez v. L.A. County, 487 F.3d 1246, 1250 (9th Cir. 2007). Dr. Elshikh had standing because the revised Executive Order left him and his family, including a wife of Syrian descent and young children who are American citizens, with the knowledge that the United States—their own country—would discriminate against individuals who are the same ethnicity as them, and who hold the same religious beliefs. The Court found that, because the revised Executive Order targeted Muslim citizens due to their religious views and national origin, which may result in these citizens being unable to associate freely with those of other faiths, the injuries are sufficiently personal, concrete, particularized and actual to confer standing in the Establishment Clause context.

As for the Establishment Clause claim, the Court declined the Defendants’ urging to rely on the Executive Order’s religiously neutral text, and instead evaluated the text in conjunction with the historical background of the revised Executive Order. The Court found this historical record “includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” The Court included statements made by President Trump including: “I think Islam hates us” and “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

Because the Court found that the Plaintiffs have shown a “strong likelihood” of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution, and “it is always in the public interest to prevent the violation of a party’s constitutional rights,” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012), the Court granted the Plaintiffs’ motion for a temporary restraining order (TRO). In effect, the TRO now blocks the second version of the ban.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

The Ohio Court of Appeals affirmed the trial court’s refusal to enforce an Islamic marriage contract, which called for a postponed dowry (mahr) owed by the husband to the wife upon death or divorce of $25,000. The Court found that the groom was coerced into signing the agreement, and thus it was not valid. The Court did not delve into the potential First Amendment Establishment Clause issues considered by the Franklin County Court of Common Pleas.

Petitioner Kofi Easterling, an inmate at Green Bay Correctional Institution (GBCI), filed suit against the Respondents, various prison officials, alleging that they ignored the Petitioner's instructions as to when Ramadan began. The Petitioner claimed that the Respondents’ Ramadan date violated his religious beliefs under the First Amendment and RLUIPA. In the District Court, the Respondents filed a motion for summary judgment, to which the Plaintiff filed a motion for summary judgment in response. The District Court granted summary judgment to the Respondents, finding that the Plaintiff’s RLUIPA claim failed because he had produced no evidence of a substantial burden on his religious exercise. Because the Plaintiff failed to meet his burden under RLUIPA, he similarly failed to establish that the Respondents burdened a “central religious belief or practice” in violation of the Free Exercise Clause. Therefore, the Respondents were entitled to summary judgment on the First Amendment and RLUIPA claims. The Court of Appeals affirmed.

(Translation by Seyed Bahman Khodadadi)

Islamic Republic of Iran
Judiciary
Supreme Court of the Country
General Administration of Uniformity of Judicial Decisions and Publication of Deliberations and Opinions of the General Board

Subject: Decision of the Unity of Procedure of the General Board of the Supreme Court
Opinion Number: 834

In accordance with the supplementary note to Article 18 of the Islamic Penal Code and the provisions of Article 2 of the Law on Reducing the Punishment of Imprisonment, approved in 1399, it is mandated that when a court imposes a sentence of imprisonment exceeding the minimum penalty established by law, the court must provide a justification based on the clauses of this article or other relevant legal provisions. The philosophy underlying this law aims to mitigate the severity of imprisonment sentences, thereby establishing the minimum prescribed punishment as the baseline for sentencing.

Consequently, if a court fails to adhere to this requirement and imposes a sentence that exceeds the minimum threshold, such a sentence will be considered to surpass the legally mandated punishment. Under the final provision of paragraph "C" of Article 474 of the Criminal Procedure Law, approved in 1392, this situation provides grounds for the resumption of proceedings.

Thus, the decision rendered by the Thirty-Eighth Branch of the Supreme Court is deemed correct and lawful by the majority of votes, insofar as it aligns with this opinion. This decision is binding on the branches of the Supreme Court, as well as all judicial and non-judicial authorities, in accordance with Article 471 of the Criminal Procedure Law, approved in 1392, along with subsequent amendments and additions in similar cases.

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.