The Case for Muslim Constitutional Interpretive Activity

Abstract

Muslim Involvement: The Court Record
1.Prisoners' Rights
Can we rely upon the courts to protect Islam and Muslims from discriminatory treatment? Have the courts considered Islam to be a 'religion' worthy of constitutional protection? The issue of First Amendment protection of Muslim beliefs and practices has arisen most often in cases brought by African-American Muslims who are incarcerated. In fact, the area of law to which Muslims have made their most substantial contribution to date is the area of prisoners' rights litigation. African-American Muslim inmates have been responsible for establishing prisoners' constitutional rights to worship. Cases brought by Muslims have established that prisoners have the right to assemble for religious services; to consult a cleric of their faith; to possess religious publications and to subscribe to religious literature; to wear unobstrusive religious symbols such as medallions; to have prepared a special diet required by their religion; and to correspond with their spiritual leaders. The court record demonstrates that Muslim inmates' religious liberty claims, challenging prison regulations that impinge on the free exercise of the Islamic faith, have been accepted only under certain circumstances. In brief, the responsiveness of the courts to Muslim inmates' claims has turned on a number of factors including: (1) the issue of equality of treatment of all religious groups in prison; (2) the courts' reticence to reverse the decisions of prison officials; (3) the degree to which the inmates' challenges would undermine the fundamental interests of the state (e.g. in prison security and administrative efficiency); and (4) the showing that Islam is parallel in significant ways to the conventional Protestant, Catholic, and Jewish faiths.
Constitutional protection of Islamic practices in prison and elsewhere, however, has not been automatic. Many Muslim organizations, the Nation of Islam in particular, have been treated as cults, or suspect and dangerous groups, due in part to the perception that Muslims teach racial hatred, and have not been regarded in the same respect as 'mainline' religious groups. It has been argued before the courts that Muslim doctrine contains political aspirations and economic goals as well as racial prejudice and should be suppressed in the interest of society. The gist of this argument is that certain Muslim groups are primarily political and not religious associations and thus ...