SHARIAsource

On June 28, 2022, the Constitutional Court of South Africa confirmed the Supreme Court of Appeal order that the state must amend existing legislation or enact new legislation to recognize and regulate the consequences of Muslim marriages. The order declared certain provisions of the Marriage Act and the Divorce Act unconstitutional due to the persistent non-recognition of Muslim marriages, or marriages solemnized in accordance with the tenets of sharīʿa, that have resulted in the infringement of fundamental rights of parties to Muslim marriages, and Muslim women and children in particular. The Constitutional Court confirmed this order stating that “the common law definition of marriage is declared to be inconsistent with the Constitution and invalid to the extent that it excludes Muslim marriages.”

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.

In its unanimous decision, the 10th Chamber of the Council of State, the highest administrative law court of the country, annulled the Cabinet Decision of 1934 converting the Hagia Sophia from a mosque into a museum. The Court reasoned as follows: the companion law to Turkey's secular Civil Code had provided that the old (Islamic) law would apply to waqfs (endowments) established before the new Civil Code came into force. The Hagia Sophia was a mosque, the Court found, that constituted part of Fatih Sultan Mehmed's (aka Mehmed the Conqueror) waqf, and under the applicable law at the time, it was forbidden to alter the status of waqf property via administrative decisions. The Court therefore ruled that the Cabinet Decision of 1934 had unlawfully changed the status of waqf property. The Court struck down the Cabinet Decision of 1934, thus paving the way for restoring Hagia Sophia's status as a mosque for worship.

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.

This document contains the proposed and approved text of the amendment to the Oklahoman State Constitution in 2010. The amendment differs from many similar legislative endeavors across the United States in that it makes particular reference to "Sharia Law," prohibiting courts from considering a foreign country's laws if that country's legal system includes Sharia. 

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.

Plaintiff Sturgeon Stewart, an inmate at the Kansas Department of Corrections (KDOC) brought suit against Respondents Vernestene Dulin, head of prison food services, and various other prison officials for alleged violations of his rights to religious free exercise on the claim that the prison served Muslim inmates the same ḥalāl food menu for all meals of the day, and that these meals excluded meat. Ḥalāl food is meat prepared in accordance with Islamic ritual law, and free of pork and alcohol. The Plaintiff contended that this repetition was not a nutritional religious-accommodating alternative to regular prison meals. The Court found for the Respondents, determining that Muslim prisoners do not have a right under the First Amendment or the RLUIPA to be provided ḥalāl meat entrees. Rather, a correctional facility need only provide Muslim prisoners with food that is not ḥarām (prohibited under Islamic law). The Court found that, as long as the Plaintiff was given an alternative to eating non-ḥalāl meat, he did not suffer a substantial burden to his religious beliefs. The Court determined that the Plaintiff had been provided with alternatives to non-ḥalāl meat, but that the Plaintiff was “simply not happy with the substitutions offered.” Therefore, the Court concluded that the Plaintiff’s factual allegations, construed as true, failed to establish a violation of the Plaintiff’s federal rights.

In divorce proceedings, a wife appealed the decision of the Oakland Circuit Court Family Division, granting her husband’s motion to dismiss her claims and recognize their previous divorce, which occurred when the couple was in India. Specifically, she contested the validity of the “triple ṭalāq” divorce (a version of final, irrevocable divorce under Indian and Islamic law, performed unilaterally by the husband) that her husband performed in India, and filed for divorce in Michigan. The trial court concluded that the certificate of divorce that the defendant husband produced from their earlier divorce was sufficient evidence to dismiss the case under Michigan Compiled Laws 2.116(C)(7) (which bars claims based on prior judgment). The Court of Appeals reversed and found in favor of the plaintiff, concluding that the Indian divorce violated due process requirements of the Fourteenth Amendment and the Michigan Constitution art. 1, § 2, as it gave the wife no chance to plead her case concerning the divorce before a court. The Court also concluded that allowing the divorce to stand would be contrary to state public policy, as it privileged the Muslim personal law of India (which placed women in a weaker position regarding property division in the event of a divorce than would Michigan state law) over Michigan state law and the rights and protections extended to persons living in the state.

Original Arabic text of the 1992 Constitution of Kuwait (1962 Constitution of the State of Kuwait, as amended to and reinstated in 1992).

English translation of the 1992 Constitution of Kuwait (1962 Constitution of the State of Kuwait, as amended to and reinstated in 1992).

English translation of the 2011 Constitution of Oman (1996 Basic Statute of the State of the Sultanate of Oman, as amended to 2011).

This suit filed before the High Court of Borno State, Nigeria, centered on the question of whether the Borno State legislature can constitutionally extend the jurisdiction of the Sharīʿa Court of Appeal beyond questions of Islamic personal law to other civil and criminal matters. The Court answered in the negative. Because the jurisdiction of the High Court and the Sharia Courts of Appeal is regulated by the Constitution, the Court determined that varying its jurisdiction would require an amendment of the Constitution rather than mere legislation.

The constitution of the State of Brunei was composed at the end of the British Residency (1906-1959) and recorded in Brunei Constitutional Documents, a collection of all of the constitutional documents that came into force between September 29, 1959, and July 1, 1960. It was enacted by proclamation of the Sultan of Brunei, Omar Ali Saifuddin Sa'adul Khairi Waddin Ibni Almarhum Mohamed Jamal-ul Alam. It has twelve parts: Part I, Preliminary; Part II, Religion; Part III, Executive Authority; Part IV, Privy Council; Part V, The Executive Council; Part VI, The Legislative Council; Part VII, Legislation and Procedure in the Legislative Council; Part VIII, Finance; Part IX, The Public Services; Part X, The State Seal; Part XI, Miscellaneous; Part XII, Amendment and Interpretation of the Constitution.

The Sharia Court, Mariga, Nigeria convicted the Appellant for the offense of house trespass and theft under the Penal Code of Nigeria. The Appellant brought this appeal before the High Court of Niger State, challenging his conviction on the basis that the Sharia Court’s jurisdiction was limited to Islamic law and did not extend to the Penal Code, which is based on Common Law. The High Court allowed the appeal and quashed the conviction.

This order implements the decision from the District Court of Colorado in Smith v. Crockett, a case in which a Muslim inmate sued Colorado state prison officials on allegations that they had violated his federal constitutional and statutory rights to free exercise of religion and to a diet that confirmed to the dictates of his faith. In this case, petitioner Ray Anthony Smith, a Muslim inmate housed in a Colorado state prison, alleged a violation of his federal constitutional right to the free exercise of religion and his federal statutory right to a diet that complies with his faith. Specifically, he alleged that prison officials revoked his right to a ḥalāl diet upon observing him ordering non-ḥalāl food. Petitioner Smith submitted a request for reinstatement of his ḥalāl diet through the internal prison grievance system, which was denied. Smith initiated this federal lawsuit in 2020 alleging violations of free exercise of religion under the First Amendment of the U.S. constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). His complaint alleges that the Colorado Department of Corrections, Dr. Muhammad Munir Chaudry, and The Islamic Food and Nutrition Council of America (IFNCA) violated his rights by the wrongful revocation of his religious diet and mislabeling of ḥalāl food products. Upon review, U.S. District Judge William J. Martinez, who adopted the recommendation of U.S. Magistrate Judge Nina Y. Wang that government officials not receive immunity but that the court dismiss Smith’s other allegations–including monetary damages against the government defendants for fraudulent misrepresentation of ḥalāl food products, and that the IFNCA and Dr. Chaudry be held liable for government actions. This order implements that recommendation and decision adopted by the district court.

In this decision, U.S. District Judge William J. Martinez adopts the recommendation of U.S. Magistrate Judge Nina Y. Wang in Smith v. Crockett, a case in which a Muslim inmate sued Colorado state prison officials on allegations that they had violated his federal constitutional and statutory rights to free exercise of religion and to a diet that confirmed to the dictates of his faith. In this case, petitioner Ray Anthony Smith, a Muslim inmate housed in a Colorado state prison, alleged a violation of his federal constitutional right to the free exercise of religion and his federal statutory right to a diet that complies with his faith. Specifically, he alleged that prison officials revoked his right to a ḥalāl diet upon observing him ordering non-ḥalāl food. Petitioner Smith submitted a request for reinstatement of his ḥalāl diet through the internal prison grievance system, which was denied. Smith initiated this federal lawsuit in 2020 alleging violations of free exercise of religion under the First Amendment of the U.S. constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). His complaint alleges that the Colorado Department of Corrections, Dr. Muhammad Munir Chaudry, and The Islamic Food and Nutrition Council of America (IFNCA) violated his rights by the wrongful revocation of his religious diet and mislabeling of ḥalāl food products. Upon review of the record, Judge Martinez agreed with Judge Wang’s recommendation that the government officials were not entitled to immunity, as petitioner Ray Anthony Smith had made sufficient allegations to make out a prima facie claim. Also following Judge Wang’s recommendations, Judge Martinez dismissed Smith’s other allegations–including monetary damages against the government defendants for fraudulent misrepresentation of ḥalāl food products, and that the IFNCA and Dr. Chaudry be held liable for government actions.

In this case, petitioner Ray Anthony Smith, a Muslim inmate housed in a Colorado state prison, alleged a violation of his federal constitutional right to the free exercise of religion and his federal statutory right to a diet that complies with his faith. Specifically, he alleged that prison officials revoked his right to aḥalāl diet upon observing him ordering non-ḥalāl food. Petitioner Smith submitted a request for reinstatement of hisḥalāl diet through the internal prison grievance system, which was denied. Smith initiated this federal lawsuit in 2020 alleging violations of free exercise of religion under the First Amendment of the U.S. constitution and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). His complaint alleges that the Colorado Department of Corrections, Dr. Muhammad Munir Chaudry, and The Islamic Food and Nutrition Council of America (IFNCA) violated his rights by the wrongful revocation of his religious diet and mislabeling of ḥalāl food products. Upon reviewing the record, in Smith v. Crockett, U.S. Magistrate Judge Nina Y. Wang determined that the petitioner alleged actions that sufficed to make out a basic claim and recommended that government officials should not receive immunity. The Judge recommended, however, dismissal of Smith’s other allegations–including monetary damages against the government defendants for fraudulent misrepresentation of ḥalāl food products, and that the IFNCA and Dr. Chaudry be held liable for government actions.

The Plaintiffs, Michigan Department of Corrections (MDOC) prisoners Eric Dowdy, Averis X Wilson, Roger Hunt, Amira Salem, Tom Traini, Patricia L. Caruso, Dave Burnett, and Michael Martin, alleged that the Defendants, various MDOC employees, violated their rights under federal and state constitutional provisions and RLUIPA by unlawfully restricting their religious practices. Specifically, the Plaintiffs challenged the Respondents’ alleged failure to accommodate certain religious practices which they claimed must be observed during particular days and times each week. The Muslim Plaintiffs specifically challenged that the inability to attend Friday (jumuʿa) prayer services without obtaining permission to exercise a “call-out”—permission which is often denied—violated their federal and state constitutional rights. The Muslim Plaintiffs also challenged the Respondents’ alleged failure to accommodate their religious dietary restrictions and their observance of the Eid al-Fīṭr and Eid al-Aḍḥā feasts. In response to the first allegation, the Respondents claim that there is a legitimate governmental interest in prison security that would be compromised if inmates were allowed to attend prayer services. The District Court determined, however, that while a legitimate governmental interest existed, the restriction of prayer services was not the least restrictive means of protecting this compelling interest in prison security. Accordingly, the District Court did not grant summary judgment in response to the Plaintiffs’ Friday prayer claim. In response to the second allegation, the Court determined that failure to provide Muslim inmates with a ḥalāl diet substantially burdens a religious exercise, but found that a question of fact exists as to whether the Plaintiffs received such a diet.

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.

The Indian Supreme Court here held that polygamy was not an ‘integral’ part of the Muslim religion and could therefore be regulated by the state.