Islam Is a Religion, and Therefore Protected by the Constitution

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Plaintiffs in a Tennessee lawsuit want to deny local Muslims the right to build a mosque. Why? They claim it's not a legitimate faith and shouldn't be allowed First Amendment rights.   

mosque-body.jpgThe Islamic Center of Murfreesboro, Tennessee, under construction (Reuters)

It's unclear whether a procedural victory for opponents of a controversial Islamic center in Murfreesboro, Tennessee, will delay or permanently enjoin completion of a mosque, under construction since last September. Equally unclear, without detailed knowledge of the facts, are the merits of Chancellor Robert Corlew's ruling that the planning commission had not provided proper public notice of the construction before granting a permit. But if this ruling is not a victory for bigotry (Corlew explicitly acknowledged the Islamic congregation's rights under the First Amendment and a federal statute), it is a victory for the bigots who opposed the mosque out of antipathy toward Islam and the idiotic claim that it is not a religion.

Mosque opponents effectively "put Islam on trial," KATV reports. At 2010 hearings, "a string of witnesses questioned whether Islam is a legitimate religion and promoted a theory that American Muslims want to replace the Constitution with extremist Islamic law and the mosque was a part of that plot."

These are not arguments; they're fantasies, and we have heard them all before, often from the same people who would conform constitutional rights (notably rights for gay people and women) to their understanding of biblical law. Still, the ignorance and un-self-conscious hypocrisy that underlies rants about Shariah law are breathtaking.

Here's how Joe Brandon, the plaintiff's attorney in the Tennessee case, explains opposition to the mosque: "This Shariah-compliant facility must show they are a religious organization, which we vehemently dispute. They are a political organization with Shariah-compliant rules and regulations. Shariah and the U.S. Constitution cannot coexist."

Yes, I know Brandon is an easy target; still, his statement is worth considering. Shariah law is religious law, but because it is the law of a demonized religion associated with terrorism and anti-Americanism, Brandon can label it political, depriving it of First Amendment protections. I don't assume this is a cynical ploy. Blinded by bigotry and their notions of "true" and "false" religions, Islamaphobes may be sincere in the counter-factual belief that Islam is purely political.

That belief is essential to the claim that Shariah law can't be tolerated because it conflicts with the Constitution. Once you acknowledge that Islam is a religion and Shariah law is religious, its conflicts with secular law become arguments for, not against, religious liberty. Of course, Shariah law is inconsistent with the Constitution. So are the tenets of Catholicism, Judaism (especially orthodox Judaism), and most if not all other faiths. Indeed, lawsuits by Catholic institutions challenging health insurance requirements for contraceptive coverage rely on the alleged impossibility of reconciling Catholic articles of faith with secular legal requirements.

Religious and secular laws often conflict; that's precisely why we have a First Amendment. It provides a legal framework for ensuring that religion and government can "co-exist." If religious law were categorically subordinate to the Constitution (as Joe Brandon imagines Shariah law should be), then the Catholic Church would be required to ordain women, Orthodox Jews would have to sit together in shul, and religious groups that oppose gay marriages would be required to perform them.

It's not hard to imagine the uproar that would greet the slightest hint of official interest in violating such basic guarantees of religious liberty, especially if directed against majority or respectable, minority religious practices. It's worth remembering that unpopular religions have long been wrongly denied equal rights: In 1878, the Supreme Court denied Mormons the right to engage in polygamous marriages, which remain illegal today.

But the same principles of liberty that give religious institutions the right not to sanctify gay marriages should also give them the right to sanctify polygamous ones. The same principles that give Christians the right to build churches in Tennessee give Muslims the right to build mosques, just as it gave Mormons the right to build a prominent temple in Belmont, Massachusetts -- a temple opposed by many in town, and a temple that Mitt Romney helped build.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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