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This item is available on the Middle East Forum website, at http://www.meforum.org/article/920

The Islamist Challenge to the U.S. Constitution

By David Kennedy Houck
Middle East Quarterly
Spring 2006

First in Europe and now in the United States, Muslim groups have petitioned to establish enclaves in which they can uphold and enforce greater compliance to Islamic law. While the U.S. Constitution enshrines the right to religious freedom and the prohibition against a state religion, when it comes to the rights of religious enclaves to impose communal rules, the dividing line is more nebulous. Can U.S. enclaves, homeowner associations, and other groups enforce Islamic law?

Such questions are no longer theoretical. While Muslim organizations first established enclaves in Europe,[1] the trend is now crossing the Atlantic. Some Islamist community leaders in the United States are challenging the principles of assimilation and equality once central to the civil rights movement, seeking instead to live according to a separate but equal philosophy. The Gwynnoaks Muslim Residential Development group, for example, has established an informal enclave in Baltimore because, according to John Yahya Cason, director of the Islamic Education and Community Development Initiative, a Baltimore-based Muslim advocacy group, "there was no community in the U.S. that showed the totality of the essential components of Muslim social, economic, and political structure."[2]

Baltimore is not alone. In August 2004, a local planning commission in Little Rock, Arkansas, granted The Islamic Center for Human Excellence authorization to build an internal Islamic enclave to include a mosque, a school, and twenty-two homes.[3] While the imam, Aquil Hamidullah, says his goal is to create "a clean community, free of alcohol, drugs, and free of gangs,"[4] the implications for U.S. jurisprudence of this and other internal enclaves are greater: while the Little Rock enclave might prevent the sale of alcohol, can it punish possession and in what manner? Can it force all women, be they residents or visitors, to don Islamic hijab (headscarf)? Such enclaves raise the fundamental questions of when, how, and to what extent religious practice may supersede the U.S. Constitution.

The Internal Muslim Enclave

The internal Muslim enclave proposed by the Islamic Center for Human Excellence in Arkansas represents a new direction for Islam in the United States. The group seeks to transform a loosely organized Muslim population into a tangible community presence. The group has foreign financial support: it falls under the umbrella of a much larger Islamic group, "Islam 4 the World," an organization sponsored by Sharjah, one of the constituent emirates of the United Arab Emirates.[5] While the Islamic Center for Human Excellence has yet to articulate detailed plans for its Little Rock enclave, the group's reliance on foreign funding is troublesome. Past investments by the United Arab Emirates' rulers and institutions have promoted radical interpretations of Islam. [6]

The Islamic Center for Human Excellence may seek to segregate schools and offices by gender. The enclave might also exercise broad control upon commerce within its boundaries—provided the economic restrictions did not discriminate against out-of-state interests or create an undue burden upon interstate commerce. But most critically, the enclave could promulgate every internal law—from enforcing strict religious dress codes to banning alcohol possession and music; it could even enforce limits upon religious and political tolerance. Although such concepts are antithetical to a free society, U.S. democracy allows the internal enclave to function beyond the established boundaries of our constitutional framework. At the very least, the permissible parameters of an Islamist enclave are ill defined.

The greater American Muslim community's unapologetic and public manifestation of belief in a separate but equal ideology does not bode well. In September 2004, the New Jersey branch of the Islamic Circle of North America rented Six Flags Adventure Park in New Jersey for "The Great Muslim Adventure Day." The advertisement announcing the event stated: "The entire park for Muslims only." While legal—and perhaps analogous to corporate or other non-religious groups renting facilities, the advertisement expressly implied a mindset that a proof of faith was required for admission to the park. In his weblog, commentator Daniel Pipes raises a relevant and troubling question about the event: because it is designated for Muslims only, "Need one recite the shahada to enter the fairgrounds?"[7]

While U.S. law might give such Muslims-only events the benefit of the doubt, flexibility may not go both ways. There is precedent of Islamists taking advantage of liberal flexibility to more extreme ends. Canada provides a useful example into how Islamist groups can exploit liberal legal tolerance. In 1991, Ontario, Canada, passed a seemingly innocuous law called the "Arbitration Act."[8] This act permitted commercial, religious, or such other designated arbitrators to settle civil disputes outside the Canadian justice system so long as the result did not contradict Canadian law. Like U.S. authorities are beginning to do now, Canadian legislators decided to give religious groups the benefit of the doubt, assuming that they would still hold national law to be paramount.

In October 2003, under the auspices of the Ontario legislation, the Islamic Institute of Civil Justice created Muslim arbitration boards and stated its intent to arbitrate on the basis of Islamic law.[9] A national furor erupted, particularly among Canadian Muslim women's groups that opposed the application of traditional Islamic (Shari‘a) laws that would supersede their far more liberal and egalitarian democratic rights. After nearly two years of legal wrangling, the premier of Ontario, Dalton McGuinty, held that religious-based arbitrations "threaten our common ground," and announced, "There will be no Shari‘a law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians."[10] On November 15, 2005, McGuinty's provincial government submitted legislation to amend the arbitration act to abrogate, in effect, all religious arbitration.[11] Requests for Muslim enclaves within larger U.S. communities may signal that U.S. jurisprudence will soon be faced with a similar conundrum. Islamist exceptionalism can abuse the tolerance liberal societies have traditionally extended to interface between religious and secular law.

Prior to the Islamic Institute of Civil Justice demands to impose Shari‘a, the Arbitration Act worked well. Unfortunately for Canadian Jews, the repeal ended state-enforcement of agreements reached by the use of a millennia-old rabbinical court system called beit din (house of law) that had for decades quietly settled marriage, custody, and business disputes. Joel Richler, Ontario region chairman of the Canadian Jewish Congress, expressed his lament: "If there have been any problems flowing from any rabbinical court decisions, I'm not aware of them."[12] Canadian Catholics likewise were stopped from being able to annul marriages according to Canon Law and avoid undue entanglement in civil courts. Abuse of the spirit of the law, though, ended up curtailing local liberty. Rather than soften the edge between religion and state, the Islamic Institute of Civil Justice threatened to eliminate it with the imposition of Shari‘a. The Canadian experience demonstrates how flexibility can backfire when all parties do not seek to uphold basic precepts of tolerance. The Little Rock application raises the specter of a parallel situation. While The Islamic Center for Human Excellence may state it wants to create a clean-living community, might the community's extreme interpretation of Shari‘a force a reconsideration of just how much leeway the U.S. government gives religious communities?

As the Muslim community in the United States grows, an increasingly active Islamist lobby has submitted numerous white papers and amicus briefs to legislators and courts arguing for the religious right of Muslims to apply Shari‘a law, particularly in relation to family law disputes.[13] This looming jurisprudential conflict is significant for it raises issues about the rights of community members to marry outside the community, forced marriages, and the minimum age of brides, and whether wives and daughters may enjoy equal inheritance. In cases of non-family law, it raises the question about whether the testimony of women will be considered on par with that of men.

No previous enclave in U.S. history has ever been so vigorously protected by agents of group identity politics or so adamantly defended by legal watchdogs; nor has any previous religious enclave possessed the potency of more than one billion believers around the world. Islamic-only communities may also benefit from the largess provided by billions of petrol dollars to finance growth. The track record of Saudi and other wealthy Persian Gulf donations and charitable efforts are worrisome. There is a direct correlation between Saudi money received and the spread of intolerant practices. In 2004, for example, the U.S. Treasury Department froze the assets of Al-Haramein Foundation, one of Saudi Arabia's largest nongovernmental organizations, because of its financial links to Al-Qaeda.[14] Additionally, American graduates of Saudi academies advance Wahhabist interpretations of Islam inside the U.S. prison system,[15] and Saudi-subsidized publications promote intolerance inside U.S. mosques.[16]

A Muslim enclave is uniquely perilous because there are few if any internal enclaves that adhere to a polity dedicated to the active abrogation of secular law and the imposition of a supreme religious law. The concept of Shari‘a is so fundamental to Islam, that even today, prominent Muslim jurists argue over whether a Muslim can fully discharge Shari‘a obligations while residing in a non-Muslim territory.[17] Yet, in spite of this apparent conundrum, Muslims have resided peacefully in non-Muslim lands since the seventh century. In the greater context, there may be a breach in the dike for Islamist groups residing in the United States because the Baltimore and Little Rock enclaves must acknowledge the U.S. Constitution as the paramount basis of civil law.

A dissident Islamic sub-community is filled with dichotomous propositions: from the presumed supremacy of Shari‘a-based law over secular law; the melding of religion and polity versus the constitutionally mandated separation of same; to the politics of group and factionalism, versus assimilation and pluralism. To deny the settlement of a Muslim-only community based solely upon prejudices formed after September 11 would be illiberal. But the alternative, opening the door to Islamic enclaves without scrutiny, is as dubious.

The Enclave under U.S. Law

Existing U.S. legal precedent, though, may provide some grounds for handling expansive demands for Islamic enclaves. U.S. legal views of internal enclaves derive from the famous 1954 Brown v. Board of Education decision, in which the Supreme Court ruled the concept of separate but equal to be unconstitutional.[18] While the case revolved around the right of black children to attend white schools, it promulgated a concept that is anathema in today's world of multiculturalism: neither the state nor any constituent group could claim equality through separation.

Enclaves can exist, though. As courts have ruled on issues relating to equality under the law and upon the autonomy of religious practice, two distinctive features of internal U.S. enclaves have taken shape: first, the boundaries of the enclave should be recognized by local inhabitants. Second, the enclave cannot supersede the constitutionally protected rights of the citizens of a state.

Because most rights secured by the constitution are protected only against infringement by government action, the Supreme Court has avoided establishing a bright-line test as to the limits of religious liberty. Any religious group or individual seeking to establish an internal enclave has the right to limit residency, promulgate local rules, and perhaps even collect fees or taxes to support nominal community services.

Such enclaves do not hold final sway over the rights of non-residents, however. In Jackson v. Metropolitan Edison Company[19] and Flagg Brothers v. Brooks,[20] the court outlined constitutional protections for private citizens in which any entity, religious or otherwise, exercising governmental authority over private citizens remains subject to the provisions of the First and Fourteenth amendments. In both cases, the court affirmed that citizens of a state retain their right to "due process of law" under the Fourteenth Amendment, even when inside an enclave. These holdings, however, do not prevent enclaves from restricting the individual freedoms of their inhabitants.

The Supreme Court has ruled upon the limits of religious liberty. In Cantwell v. Connecticut, the court outlined the circumstances in which the government could act to restrict religious independence. The court held that the free exercise clause "embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society."[21]

Christopher L. Eisgruber, professor of law at New York University, explained. He argued that, "the Constitution permits government to nurture ideological sub-communities founded upon premises inconsistent with the constitution's own commitments."[22] He maintained that such dissident sub-communities can provide important "sources of dissent"[23] and asserted that even if an enclave embraced ideals contrary to constitutional ideals, it should still be granted the right to pursue its own vision of good. For example, he wrote:

[Though] it is regrettable that young women in Kiryas Joel [a Satmar Hasidic enclave] will grow up in a starkly sexist culture, and it is regrettable that the Amish children of Yoder will find it very hard to become astronomers or lawyers … it would also be regrettable if the United States were not home to any sub-communities which, like the Satmars or the Amish, rejected principles of justice fundamental to the American regime.[24]

According to Eisgruber, tolerance of the intolerant is fundamental to the freedoms espoused by Western liberal democracy. While Islamists might use such logic to argue for the permissibility of Shari‘a communities, such tolerance has limits. Enclaves do not have carte blanche to act. Both the state and national legislatures must retain control over the extent of accommodation, and there should be no subsidization of the enclave by the government.[25] Such limits ensure that the government can constrain those sub-communities that might espouse more radical, violent, or racist views.[26]

It is usually when the U.S. government moves to uphold the rule of law that most Americans first learn of an internal enclave. Few Americans knew of the philosophy espoused by anti-government activist Randy Weaver until 1992 when the FBI and the Bureau of Alcohol and Firearms raided his compound at Ruby Ridge, Idaho, killing Vicki Weaver, their infant son, Sam, and the family dog.[27] Nor did many Americans know about David Koresh and his religious views until a raid the following year on the Branch Davidian compound in Waco, Texas, in which a resulting fire killed fifty adults and twenty-five children under the age of fifteen.[28] While tragic, such events involved cults or political splinter groups. The growth of Muslim enclaves raises the specter of such conflicts occurring on a much larger scale.

While the court has interpreted the establishment clause to empower the government to constrain dissident sub-communities when necessary to protect public safety, it has been wary of addressing legal issues requiring intrusion upon the religious polity. Because the First Amendment provides for religious freedom, the court has confined itself to ruling upon three basic issues: property disputes between national religious hierarchical organizations with affiliated breakaway entities; accommodations under the free exercise clause; and the prohibition against the establishment of a state religion. New challenges, though, may lead to new interpretations.

The Antithesis to Democracy

Is concern over internal Muslim enclaves justified? On their face, the fundamental principles of the internal Muslim enclave are no more invidious than any other religious enclave. But ideology matters. Many proponents of an Islamic polity promote an ideology at odds with U.S. constitutional jurisprudence and the prohibition against the establishment of a state-sponsored religion. The refusal to recognize federal law makes Islamist enclaves more akin to Ruby Ridge than to the Hasidic and Amish cases cited by Eisgruber.

Muslim theologians describe Islam not only as a religion but also as a system of state. The Qur'an—viewed by Muslims as the word of God—is replete with instructions about governance. An enclave promoting Islamic mores does not necessarily restrict itself to a social atmosphere but also one of governance. Traditional Islamic law controls the most basic aspects of everyday life and may make any Islamic enclave irreconcilable with the basic presumptions of Western liberal democracy and secular law.

While many American Muslims practice Islam and embrace the fundamental principles of the U.S. Constitution, others do not. There are consistent attempts by Islamist elements overseas to strengthen their own radical interpretation of Islam at the expense of moderation and tolerance. Saudi donors, for example, have propagated the ideology of Islamism, which seeks to interweave a narrow and often intolerant interpretation of religion into an all-encompassing political ideology. The number of imams and jihadists who have been outspoken in identifying the supremacy of Shari‘a to democracy underlines the incompatibility of Islamism and democracy. The late Saudi theologian, Sheikh Muhammad bin Ibrahim al-Jubair, for example, stated,

Only one ambition is worthy of Islam, to save the world from the curse of democracy: to teach men that they cannot rule themselves on the basis of man-made laws. Mankind has strayed from the path of God, we must return to that path or face certain annihilation.[29]

Prior to Iraq's January 30, 2005 elections, Abu Musab al-Zarqawi, leader of Al-Qaeda in Iraq, released an audiotape in which he declared war upon democracy and denounced its tenets as "the very essence of heresy, polytheism, and error."[30] Nor is Islamist antipathy for democracy limited to popular elections. According to a Saudi publication distributed at a San Diego mosque, "[Democracy is] responsible for all the horrible wars … more than 130 wars with more than 120 million people dead [in the twentieth century alone]; not counting victims of poverty, hunger and disease."[31] Such sentiments reflect a common theme among Islamists: democracy is the antithesis to everything pious and pure in Islam; and, in truth, democracy is the direct and substantial causal effect of Muslim suffering and injustice in the world today.

This does not mean that Islamists are unwilling to use democracy for their ends. But while they accept the trappings of democracy, they continue to reject its principles because the Shari‘a, to them the perfect rule of law, cannot be abrogated or altered by the shifting moods of a secular electorate. Mohamed Elhachmi Hamdi, editor-in-chief of the pan-Arab weekly Al-Mustakillah, explained,

The heart of the matter is that no Islamic state can be legitimate in the eyes of its subjects without obeying the main teachings of the Shari‘a. A secular government might coerce obedience, but Muslims will not abandon their belief that state affairs should be supervised by the just teachings of the holy law.[32]

He could draw from plenty of examples. In 1992, for example, Ali Balhadj, a leader of the Islamic Salvation Front in Algeria, declared, "When we are in power, there will be no more elections because God will be ruling."[33] While mayor of Istanbul, Islamist Turkish politician Recep Tayyip Erdoğan quipped, "For us, democracy is a streetcar. We would go as far as we could, and then get off."[34] As he eviscerates the judiciary, many Turks wonder about his sincerity.[35]

Experience abroad is relevant, as it goes to the heart of the sincerity of proponents of the Little Rock and Baltimore enclaves, an issue compounded by the willingness to accept donations from Persian Gulf financiers.

Conclusion

How Muslims reconcile Islamic polity within the confines of Western liberal democracy is an unresolved issue. This process will take years to evolve and is likely to convulse in further violent episodes. Presently, many Muslims reject wholesale the notion of a dominant secular law and instead seek the imposition of a pan-Islamist state under the guidance of Shari‘a. These Islamists view secular modernity and the democratic practices of radical egalitarianism, individual rights, and free exercise of religion as a direct and substantial threat to their belief system, and they are intent on employing violence against the West for the foreseeable future. The remainder and majority of the Muslim world must reject nihilism and engage in widespread debate regarding Islam's role within the world community.

The local planning commission in Little Rock, Arkansas, might proceed with the proposed Muslim enclave, but the Arkansas courts and its legislature should not abdicate its responsibilities to ensure that Western liberal rights and protections remain supreme. The government should monitor both the rhetoric and behavior of these communities. As the Supreme Court stated in Cantwell: the freedom to believe is absolute, but the freedom to act, in the nature of things, cannot be, especially as to the safety and preservation of the American democracy.[36]

David Kennedy Houck is an attorney at Houck O'Brien LLC, in Pittsburgh, Pennsylvania.

[1] See, for example, discussion of the Sonali Gardens project in London, The Evening Standard (London), Apr. 27, 2004.
[2] Marya Morris, "Muslim Community Development Initiatives," American Planning Association, Apr. 25, 2004.
[3] "Muslim Community Development Plans," Fox 16 News, Aug. 26, 2004.
[4] Ibid.
[5] Information on the Arkansas Islamic Center for Human Excellence website, accessed on Nov. 2, 2005, linked visitors to the "Islam 4 the World" website.
[6] U.S. Department of State, news release, Feb. 19, 2004.
[7] Daniel Pipes, "Muslims Only!" at Six Flags Adventure Park," www.DanielPipes.org, Sept. 10, 2004.
[8] "Arbitration Act," S.O. 1991, "Ontario Statutes and Regulations," e-Laws News, c. 17.
[9] Daniel Pipes, "Enforce Islamic Law in Canada?" The New York Sun, Sept. 27, 2005.
[10] Canadian Press News Agency, Sept. 11, 2005.
[11] Ontario Ministry of the Attorney General, news release, Nov. 15, 2005.
[12] Canadian Press News Agency, Sept. 11, 2005.
[13] See, Asifa Quaraishi and Najeeba Syeed-Miller, "No Altars: A Survey of Islamic Family Law in the United States," Islamic Family Law project, Law and Religion Program, Emory University, Atlanta, Ga.; American Muslims Intent on Learning and Activism (AMILA) in partnership with the American Civil Liberties Union submitted an amicus brief to the Supreme Court on the juvenile aspect of the death penalty that included citations to Shari'a law.
[14] U.S. Department of State, news release, Feb. 19, 2004.
[15] The Wall Street Journal, Feb. 5, 2003.
[16] Khaleel Mohammed, "Assessing English Translations of the Qu'ran," Middle East Quarterly, Spring 2005, pp. 59-71.
[17] Khaled Abou El Fadl, "Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries," Islamic Law and Society, 1:2(1994): 141-4.
[18] Brown et al. v. Board of Education of Topeka, 347 U.S. 483 (1954).
[19] Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974).
[20] Flagg Brothers v. Brooks, 436 U.S. 149 (1978).
[21] Cantwell v. Connecticut, 310 U.S 296 (1940), pp. 303-4.
[22] Christopher L. Eisgruber, "The Constitutional Value of Assimilation," The Columbia Law Review, Jan. 1996, pp. 87-8.
[23] Ibid., p. 91.
[24] Ibid.
[25] Ibid., pp. 89, 91.
[26] Ibid., pp. 87, 92.
[27] CNN News, Aug. 21, 1997.
[28] "The Aftermath of the April 19 Fire," Report to the Deputy Attorney General on the Events at Waco, Texas (redacted version: Oct. 8, 1993), U.S. Department of Justice, chap. XIII.
[29] Amir Taheri, "Islam and Democracy: The Impossible Union," The Sunday Times (London), May 23, 2004.
[30] Nimrod Raphaeli, "The Sheikh of the Slaughterers": Abu Mus'ab Al-Zarqawi and the Al-Qa'ida Connection," Middle East Research Media Institute (MEMRI), Inquiry and Analysis Series, no. 231, July 1, 2005.
[31] "Anti-American," Saudi Publications on Hate Ideology Invade American Mosques, Center for Religious Freedom, Freedom House, chap. 4, p. 4.
[32] Mohamed Elhachmi Hamdi, "Islam and Liberal Democracy: The Limits of the Western Model," Journal of Democracy, Apr. 1996, pp. 81-5.
[33] Michael Rubin, "Islamists Are Intrinsically Anti-democratic," www.bitterlemons-international.org, June 2, 2005.
[34] Hürriyet (Istanbul), Apr. 23, 1998.
[35] Milliyet (Istanbul), June 6, 2005.
[36] Cantwell, pp. 303-4.


This item is available on the Middle East Forum website, at http://www.meforum.org/article/920



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