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.

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.

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.

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.

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.

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.]

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.

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 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.

Plaintiff John Knapp, a state prisoner and observant Muslim [following the general requirements of Islamic ritual law], filed suit against the Respondents, prison officials in their individual and official capacities, for an alleged violation of his rights under RLUIPA on the claim that the prison facility lacked weekly Friday prayer (jumuʿa) services. The prison employed a volunteer policy, which allowed Muslims in the prison community to volunteer to lead the Friday prayer service in order to enable group worship. But because there were no volunteers or future prospect of volunteers, the Friday prayer service was not conducted. The magistrate judge determined that the volunteer policy challenged by the Plaintiff could violate the prisoner’s rights under RLUIPA if such a policy was not the least restrictive means by which the government could achieve a compelling state interest, and that the Plaintiff’s allegations sufficed to assert a claim. The magistrate judge therefore recommended that the Plaintiff’s claim under RLUIPA be allowed to proceed.

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.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

A former Islamic prison chaplain sued his former employer, the State of Maryland, under Title VII, alleging that the State created a hostile work environment, subjected him to constructive discharge, and was liable for breach of contract for failing to abide by the terms of an earlier attempted settlement. The plaintiff alleged that he was harassed because of his religion for several years, including being involved in physical altercations with other non-Muslim employees, while working as an Islamic chaplain, and that this led to a hostile work environment and to his constructive discharge. The Court dismissed the contract claim, as the state has sovereign immunity under the Eleventh Amendment; but the Court denied the State’s motion for summary judgment on the other two counts, concluding that the plaintiff had established a prima facie case of discrimination.

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.

Plaintiff Charles Glenn, an inmate at the New Hampshire Department of Corrections (DOC) filed suit against the Respondents, various DOC prison officials, for alleged violations of his rights to free exercise [of his ability to exercise Islamic ritual law] under the First Amendment and RLUIPA. Specifically, the Plaintiff – a practicing Muslim – argued that there had been no Friday prayer (jumuʿa) services at the New Hampshire State Prison for the past three years and that he had no access to an Imam (a Muslim prayer leader), a Qur’an, or other Islamic literature, which placed constraints on his ability to practice Islam [specifically, it's ritual law aspects]. In conducting a Preliminary Review, the Court applied the four-part test for examining the constitutionality of a regulation that restricts an inmate’s First Amendment free exercise of religion found in Turner v. Safley, 482 U.S. 78, 89-90 (1987). The Court assessed the four Turner factors -- (1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) what impact accommodating the right will have on prison resources; and (4) whether there was an absence of alternatives to the prison regulation. The Court found that the prison’s policy of denying Friday Prayer (jumuʿa) services, which are a central and essential element of religious practice, impinged on the Plaintiff’s First Amendment right to exercise his religion.

In Narasu Appa Mali in 1952, the Bombay High Court limited its own ability to address the constitutionality of Muslim personal law in India, holding that personal laws are not “laws in force” within the purview of Article 13 of the Constitution, and thus need not satisfy the fundamental rights test.

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.