SHARIAsource

A baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. However, surrogacy is not allowed because marriage is the only means through which children should be produced under Islamic law. Surrogacy is likely to give rise to innumerable legal problems regarding paternity and maternity of the surrogate children, the relationship between actual children and surrogate children, and inheritance rights.

Plaintiff Mitchell Theophilus Garraway filed an action against the Respondent, a Lewisburg penitentiary, for a claimed violation of RLIUPA. The Plaintiff alleged that various Federal Bureau of Prisons rules and policies severely and unnecessarily burden his right to private religious exercise of his Islamic faith. The Plaintiff cited, among other reasons, that the prison did not make the chapel available to all Muslims to congregate for Friday prayer, and also placed other restrictions on Muslims’ ability to perform all their prayers together as one group. The District Court decided that the penitentiary had a legitimate governmental interest—the need to maintain order and security—that was rationally connected to the policy regarding congregation for prayer. 

A nine-member panel at the Federal Court of Malaysia led by Chief Justice Tengku Maimun ruled in a unanimous decision that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment of 2003 was unconstitutional and void as the power of judicial review that it conferred was not a power that the Selangor state legislative assembly was authorized to give. The petition arose out of the High Court consideration of an application for judicial review wherein an organizational petitioner, the SIS Forum (of Malaysia), sought to challenge the validity of a fatwā [advisory Islamic law opinion].The Court stated that it is not concerned with the procedural or substantive validity of the fatwā, and was not asked to determine the courts are authorized to undertake such evaluations in the first place under clause (1A) of Article 121 of Malaysia’s Federal Constitution. The petition concerns only the question whether the Selangor State Legislative Assembly (SSLA) was authorized to enact section 66A of the ARIE 2003, conferring powers of judicial review on syariah (Islamic law) courts. The Court concluded that Selangor, a Malaysian state, cannot grant syariah courts the power to review the rulings of Islamic authorities, which is a power retained exclusively by civil courts. For further context on Islamic law in Malaysia, consult Tamir Moustafa's Constituting Religion: Islam, Liberal Rights, and the Malaysian State (Cambridge University Press, 2018).

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.

Plaintiff Kareem Hassan Milhouse, an inmate at the United States Penitentiary in Lewisburg, Pennsylvania (“USP-Lewisburg”), filed aBivens-styled complaint against several Federal Bureau of Prisons and USP-Lewisburg officials. The Plaintiff asserted that he had been denied access to the courts on three occasions and denied the practice of his religious requirements in violations of his right to free exercise, on the bases that: (1) there was no Islamic chaplain for Muslim inmates nor services for Special Management Unit inmates to attend services physically, nor were services provided through the radio as were other institutional programs, and (2) there was no Islamic celebration after the Ramadan fast, nor special meal of the types given for holidays of other faiths, and no Muslim chaplain with whom to discuss articles of faith. [He believed both of these types of services to be requirements stipulated by Islamic ritual law.] The Defendants filed a motion to dismiss and for summary judgment. The District Court granted the Defendants’ motion for summary judgment. The Court found that the alleged conduct did not fall within the scope of the Religious Freedom Restoration Act (“RFRA”), which applies to free exercise of religion claims under the First Amendment raised by prisoners, because the Plaintiff did not establish that a “substantial burden” had been placed on his ability to exercise his religion. The Court further determined that the Plaintiff had alternative means of worship available to him and that the Defendants’ conduct of providing the meal to non-Muslim inmates did not inhibit or curtail his ability to express adherence to his Islamic faith and beliefs. Because the Plaintiff failed to meet the substantial burden test with respect to both of these freedom of religion claims, the Court granted summary judgment in favor of the Defendants.

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.

Plaintiff Tariq A. Vaughn, Sr., an inmate at the United States Penitentiary in Lewisburg, Pennsylvania, filed a civil rights complaint pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics alleging that he told prison officials that he did not want to be housed with a Muslim inmate, and after he was placed in a cell with a Muslim inmate, that the Muslim inmate stabbed him in the head and back. The magistrate judge recommended that the Plaintiff’s civil rights complaint be dismissed with prejudice because it was frivolous, and alternatively for failing to state a claim for which relief can be granted. [There seemed to be no stated religious or Islamic law basis for the claim.]

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 Jeffrey Coleman filed an action against the Virginia Department of Corrections (VDOC) alleging violations of his constitutional rights under the First Amendment, the Eighth Amendment, the Fourteenth Amendment, and RLUIPA. The Plaintiff claimed that these rights had been violated in over 12 policies, including the policy that limited his purchase of prayer oil to once a week, a grooming policy that prevented him from growing a beard, and a CD policy limiting inmates’ purchase of spoken religious word CDs to a single vendor. The District Court dismissed all claims against the Respondent except for claims related to the CD policy, which the District Court determined was not related to any legitimate penological interest.

Plaintiffs, Muslim prisoners, sued the Massachusetts Department of Corrections, alleging violations of state and federal law, including the First Amendment of the U.S. Constitution, § 1983, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Plaintiffs alleged that being patted down by female prison guards violated their First Amendment free exercise rights inasmuch as it contravened the tenets of their Islamic faith, which forbids intimate contact between unrelated members of the opposite gender. The Court granted the defendants’ motion for summary judgment for most of the claims, but denied it with respect to the RLUIPA and the Massachusetts General Law claims, concluding that a jury would best be able to determine whether the alleged infraction violated the terms of these two statutes.

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.

Petitioner Fedwa Khalik, an Arab-American who was born in Kuwait and practiced Islam, sued her former employee, alleging discrimination because of race, religion, national origin, and ethnic heritage under Title VII of the Civil Rights Act of 1964. The Petitioner alleged she was grabbed in the office and subjected to false investigation and discrimination. The Appellate Court held for the Respondent after determining that the Petitioner’s allegations were not plausible under the Twombly/Iqbal standard [two cases which announced a new federal pleading standard, allowing district court judges to dismiss a complaint if it does not set out a “plausible” claim: Bell Alt. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)] because (1) several of her allegations were not entitled to the assumption of truth because they were entirely conclusory, and (2) the remaining facts did not sufficiently allege discrimination or retaliation since her claims were based solely on the fact that she was Muslim and Arab-American.

Plaintiff Derrick Lafurr Brown, a Muslim inmate confined in the Texas Department of Criminal Justice, Correctional Institutions Division, filed a suit against the Respondents, who were various prison officials at the Texas Department of Criminal Justice, for interrupting the Islamic services [Friday services specified in Islamic ritual law] out of an alleged general bias against Islam. The magistrate judge determined that the prison officials were acting in response to the Plaintiff’s repeated disobedience, and that their measure of standing in the doorway to block entry to the services was related to a legitimate penological interest and therefore did not interfere with the inmate's free exercise of religion. The magistrate judge recommended that the plaintiff's civil rights claims be dismissed without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

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.

This document shows the ruling made by Judge Datuk Hanipah Farikullah of Malaysia’s Federal High Court that only the Syariah Court has the power to decide on the validity of the Selangor fatwā that labelled the activist organization Sisters In Islam (SIS Forum) as a “deviant group” for promoting “liberalism” and “religious pluralism.” This ruling shows the grounds on which the decision was made that the [civil] High Court does not have jurisdiction to hear the Sister in Islam’s application for judicial review to challenge the validity of the fatwā issued by the Selangor Fatwa Committee.

This 2013 case is part of an ongoing legal custody battle in Malaysia between a Hindu woman, Indira Gandhi Mutho against her former husband Pathmanathan Krishnan, who converted from Hinduism to Islam in 2009. In this case, the [civil] Federal High Court ruled that the conversion certificates of Gandhi’s children to Islam should be declared null and void because Krishnan had not converted the three children aged twelve, eleven, and eleven months to Islam in accordance with the Administration of the Religion of Islam (Perak) Enactment 2004. The Federal High Court also reasoned that the applicant’s rights were upheld through international rights and standards, and articles 11 and 12(4) in the Federal Constitution. Significantly, the Federal High Court also claimed that it held jurisdiction over the syariah courts on this matter.

An African-American Muslim bus driver sued her former employer, the City of New York, under federal and state law (including Title VII; Article 1, section 3 of the New York State Constitution, and New York City Administrative Law §8-107(1)), alleging gender, religious, and racial discrimination and for allowing a hostile work environment. Specifically, the plaintiff argued that she was subjected to a hostile work environment after securing accommodations for her to wear a headscarf (khimar) while on the job. She claimed that she was required to wear a baseball cap over the headscarf or to accept shifts that did not entail interaction with the public. The Court concluded that the complaints were not severe or pervasive enough to warrant a hostile work environment claim before a jury; accordingly, it dismissed the Title VII and New York State Constitution claims. The Court permitted the employment discrimination claim under the NY City Administrative Law to proceed.

In 2014, a Malaysian federal court invalidated an Islamic state law criminalizing the public behavior and appearance of transwomen (people identifying as women and identified as men at birth). The Court ruled that the Malaysian Constitution’s fundamental rights trumped state-legislated Islamic law. It relied heavily on the notion that the Muslims being prosecuted suffered from Gender Identity Disorder (GID), over which they had no control. Evidence of the plaintiff’s GID and information about GID was provided to the Court by two psychiatrists, a psychology, and a sociologist.