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North America: United States and Canada

By:
Lee Ann Bambach
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

North America: United States and Canada

The U.S. legal system provides extensive, although not unlimited, accommodations and protections for Muslims who desire to observe Sharīʿah. On a constitutional level, the First Amendment contains two clauses that afford Muslims, as well as other religious groups and nonbelievers, broad protection of religious freedom. The first clause, known as the Establishment Clause, states that “Congress shall make no law respecting an establishment of religion”; its companion, known as the Free Exercise clause, ensures that Congress shall make no law “prohibiting the free exercise thereof.” In the 1940s, Supreme Court jurisprudence held that these two clauses applied to state and local governments as well, establishing a national standard for religious liberty (previously states had been allowed to endorse religions, although most had disestablished by the early 1800s).

Hence, as a general rule, no level of government in the United States may pass a law that endorses or “establishes” religion; nor is government permitted to prohibit or burden improperly an individual’s freedom of religious belief or practice. Beginning in the 1960s, Muslim inmates, then affiliated primarily with the heterodox Nation of Islam, actively brought cases invoking the First Amendment that established that Islam was a religion that merited the same protections as Christianity or Judaism. Such cases not only expanded the rights of Muslim inmates to engage in religious practices such as assembling for religious services, observing dietary restrictions, and receiving and reading religious literature, but they also established legal precedents that helped clarify the rights of Muslims outside of prisons, as well as individuals from other faith traditions, to engage freely in religious practices.

Such freedoms are not absolute, however. Laws dealing with health and safety issues, or those that are narrowly tailored to advance other important government interests, may sometimes adversely impact an individual’s religious practices without being unconstitutional. Examples of this include a series of federal laws starting in 1862 designed to ban polygamy nationally on the grounds that it was morally wrong and socially unjust.

Muslims are also protected by the Civil Rights Act of 1964, especially Title VII of the Act, which prohibits discrimination by public or private employers on the basis of race, color, religion, sex, or national origin. Pursuant to this law, employers are also required to make reasonable accommodation for their employees’ religious observances and practices, unless doing so would cause the employer undue hardship. Accordingly, Muslim employees’ requests to pray at work, wear beards or head-coverings, attend Friday prayers, and engage in other religious practices must generally be accommodated, unless the employer can demonstrate some valid business reason why such accommodation would be problematic.

Although First Amendment considerations bar Islamic legal norms from being incorporated into U.S. federal or state law, Muslims who are interested in observing such norms may utilize neutral, secular provisions of U.S. law to do so, so long as such norms do not violate federal or state law or public policy. U.S. courts, for example, often encounter cases in which they must consider foreign laws or judicial decisions based on Sharīʿah, such as the validity of a divorce or custody decree issued in Pakistan, or a breach-of-contract case wherein the contract’s choice of law provision specifies Saudi law. In such a case, a U.S. court will invoke neutral principles of law such as the doctrines of comity or choice of law to determine whether to enforce the foreign law or decision, unless such law or decision contravenes U.S. law or public policy.

Muslims, like other religious groups in the United States, have proven adept at utilizing secular U.S. law to further their religious legal norms. Islamic legal requirements for ḥalāl food, for example, may easily be met while conforming to local or state regulations regarding health and sanitation, and in many states consumer protection regulations prohibit the fraudulent representation of food as ḥalāl, with such regulations often modeled after similar provisions regarding kosher food labeling. Some financial institutions provide Sharīʿah-compliant financing, which enables Muslims to obtain loans or mortgages without violating Islamic norms regarding interest, or riba, although not all states’ regulations allow it. Properly drafted and executed wills enable Muslims to have their estate distributed according to Sharīʿah inheritance provisions, thereby bypassing a state’s default intestate distribution laws.

Many Islamic legal norms may also be realized through nonjudicial dispute resolution or private contract. For example, Muslims in the United States may enter into marriage contracts that provide for a dowry, or mahr, payment. Parties to a divorce or business dispute may agree to mediation or arbitration pursuant to Islamic law, often turning to a local imam or Islamic legal scholar for adjudication. Such proceedings are generally private. Occasionally such proceedings may run parallel to state court proceedings, for example, when a woman who has been divorced civilly turns to a local imam to obtain a “religious” divorce. In some instances, parties to a contract that involves Islamic legal norms may turn to a state court for relief. Courts evaluate each such case on its individual merits utilizing neutral principles of law and public policy considerations. Within these general guidelines, however, it can be difficult to predict how a court will rule in any particular case given the vast diversity of jurisdictions throughout the United States, factual differences between cases, as well as potential misunderstanding by state courts. For example, in Odatalla v. Odatalla, a New Jersey court enforced the terms of a mahr contract, finding it a “simple contract between two consenting adults [that did] not contravene any statute or interests of society,” whereas a California court, in In re Marriage of Dajani, refused to enforce a mahr contract on public policy grounds because it viewed it as “profiteering from divorce.”

There may also be cooperation and involvement between the state and Islamic organizations at an informal level. In Virginia, for example, imams will not perform religious marriages without confirmation that the civil marriage has already been registered with the state. Similarly, state courts dealing with divorce may send couples seeking divorce to seek counseling with an imam before beginning procedures.

Beginning in 2010, attempts have been made in a majority of U.S. states to pass legislation that would bar state courts from considering Islamic law in their decisions, with such legislation becoming law in a handful. The wording of such legislation varies: some explicitly target Sharīʿah, others refer to “religious and cultural law,” and many more using the terms “foreign” or “international” law. Although proponents of such laws argue that they are necessary to protect citizens from the application of alien laws that may threaten their constitutional rights, in some cases such laws themselves have been found unconstitutional, as was the case with a state constitutional provision passed in Oklahoma that was blocked by a federal judge, and all of them are duplicative of existing safeguards in federal and state law.

The Fiqh Council of North America, as well as regional and local fiqh councils and Islamic scholars, answer questions and provide guidance to Muslims in the United States and Canada regarding the interpretation and application of Islamic legal norms. For example, in 2006 the Fiqh Council of North America issued a fatwā regarding the criteria for determining the beginning of Islamic lunar months, with the goal of promoting unity and consistency among North American Muslims regarding the dates of Ramaḍān and Muslim holidays. While not all Muslims accept the decisions of such bodies, this is keeping with Islamic tradition that generally considers fatāwā to be advisory and nonbinding.

Canada.

In Canada, freedom of religion is a “Fundamental Freedom” guaranteed by Section 2 of the Canadian Charter of Rights and Freedoms (the “Charter”), which was signed into law as part of the Constitution Act in 1982. Such freedom is not unlimited however, but is “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Section 15 of the Charter also guarantees equal protection and equal benefit of the law without discrimination based on religion. Canada is also officially committed to multiculturalism, and the 1988 Multiculturalism Act formally recognizes religious diversity as one of the “fundamental characteristics” of Canadian society to be preserved and enhanced.

Although the Charter generally provides broad protection for Muslims in Canada who wish to observe Islamic legal norms, it applies only to government actions. Federal, provincial, and territorial human rights laws that apply to the actions of private individuals ensure a further degree of protection for Muslims’ religious beliefs and practices by prohibiting discrimination in the marketplace, accommodations, and employment on religious, as well as other, grounds. Although the precise wording of these laws varies, generally they all impose on employers and service providers a positive duty to accommodate Muslims’ religious beliefs and practices, unless doing so would impose an undue hardship in terms of health, safety, or cost. However, in some cases the concept of “reasonable accommodation” of minority groups, especially Muslims, has led to controversy. In 2007, in response to such controversies, Quebec premier Jean Charest commissioned a report by two respected academics, Gérard Bouchard and Charles Taylor, who found that opposition to “reasonable accommodation” was often the result of exaggerated or inaccurate reports about the supposed accommodations. As a result, they made a series of proposals for the Quebec government aimed at balancing “open secularism” and “interculturalism.”

There are legal limits on accommodation of the face veil, or niqāb. In 2010, Quebec proposed legislation that would require all individuals to reveal their faces when receiving government services, such as education and medical services, with similar provisions considered in other provinces. On the national level, Immigration Minister Jason Kenney announced in December 2011 that Muslim women would not be allowed to cover their faces during citizenship ceremonies, on the grounds that such an oath was a public declaration that had to be done freely and openly, and allowing a group to cover their faces during such a ceremony was counter to Canada’s commitment to openness and social cohesion. On the other hand, the Canadian Supreme Court in December 2012 rejected a flat ban on the niqab, or face-coverings, in court, ruling that women who covered their faces for sincere religious reasons would be allowed to do so while testifying in a criminal proceeding unless doing so would interfere with a defendant’s right to a fair trial (R. v. N.S.).

As a general rule, Islamic legal provisions that do not conflict with Canadian laws are respected by court, but Islamic laws or practices that do or are found to be contrary to public interest will not be enforced. For example, legal marriages performed outside of Canada will generally be recognized, but courts have refused to recognize polygamous marriages, even if they were legal in the country in which they were performed, on the grounds that polygamy is illegal in Canada. Nonetheless, in some provinces, such as Ontario, partners in a polygamous marriage may have some legal rights to child support, spousal support, and property division if the relationship ends. A challenge to Canada’s anti-polygamy law by a fundamentalist Mormon group as violating the Charter’s guarantee of religious freedom in the Supreme Court of British Columbia was rejected in 2011, with Chief Justice Robert Bauman concluding that although the criminal ban on polygamy did run counter to the Charter’s guarantee of religious freedom, the ban was nevertheless constitutionally justified as a reasonable limitation to prevent harm to women, children, and society.

In family law issues, Muslims in Canada generally take a hybrid approach, both respecting and observing civil law and practices, such as obtaining marriage licenses or civil divorce decrees, as well as looking to Islamic traditions, such as entering marriage contacts with mahr provisions or obtaining a “religious” divorce from an imam. Canadian courts have been somewhat inconsistent when called on to enforce mahr agreements. For example, in Amlani v. Hirani the court found that a mahr agreement was an enforceable marriage contract based on Section 61(2) of British Columbia’s Family Relations Act, whereas another court held that a mahr agreement was a purely religious issue that was nonjusticiable in a civil court (Kaddoura v. Hammoud).

In 2003, a proposal by the Islamic Institute of Civil Justice to establish a “Sharīʿah court” offering arbitration services in Ontario under that province’s 1991 Arbitration Act led to a firestorm of protest and years of debate. Although other religious communities, such as Christians and Jews, had been offering similar faith-based arbitration services pursuant to the Arbitration Act for many years, opponents of such tribunals—which included groups such as the Muslim Canadian Congress, the Canadian Council of Muslim Women, and other women’s and human rights groups—maintained that they would lead to the oppression and victimization of Muslim women. A report by former attorney general Marion Boyd recommending that the Arbitration Act should continue to allow disputes to be arbitrated using religious laws subject to recommended safeguards was rejected, and in 2006 the Ontario legislature banned the use of binding religious arbitration to settle family law matters, such as divorce and child custody. In 2005, the Quebec National Assembly became the first province specifically to ban Sharīʿah law, voting unanimously to support a resolution to oppose “the establishment of so-called Islamic tribunals in Quebec and in Canada.” However, Muslims, as well as other religious groups in Canada, may still utilize religious mediation in family law matters, although such agreements are nonbinding and cannot be enforced in court.

Bibliography and Further Reading

  • Bouchard, Gérard and Charles Taylor. Building the Future: A Time for Reconciliation. Quebec: Commission de Consultation sur les Pratiques d’Accomodement Reliées aux Differences Culturelles, 2008.
  • Boyd, Marion. Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion. Ontario: Report to Attorney General, 2004.
  • Macfarlane, Julie. Islamic Divorce in North America: A Shariʾa Path in a Secular Society. New York: Oxford University Press, 2012.
  • Moore, Kathleen M. Al-Mughtaribun: American Law and Transformation of Muslim Life in the United States. New York: State University of New York Press, 1995.
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