When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom

Dressed in an all-white suit with a white tie, attorney Joe Brandon, Jr., paced back and forth in the county courthouse in Rutherford County, Tennessee, peppering witnesses with incendiary questions. On some of the six days of the proceedings, Brandon wore brightly colored ties with checkered shirts and checkered suits. In all of his looks, he channeled the brash comedians from the 1950s and 1960s—except that Brandon’s stage was an American courtroom, and in this courtroom, Islam was on trial. To him and the plaintiffs, Islam was not a religion.

“Isn’t it true that in the Qur’an, Mohammad had a six-year-old wife that he had sex with … Is that your idea of what a religion is?”

“Sharia law includes instruction on how to beat your wife … How is Sharia law going to affect our society, our jobs and our freedoms?”

“How can something be called a religion that promotes the abuse of women?”

“Do you believe in having sex with children?”

The litigation was organized by lobbyist Laurie Cardoza-Moore, who, along with other opponents, filed a lawsuit against Rutherford County to block plans for a mosque to be built by local Muslim-Americans. The Islamic Center of Murfreesboro (ICM) had legally purchased the 15 acre-vacant lot and received approval from the regional planning commission for plans to build a 52,000-square-foot complex that would include a prayer hall or mosque, a swimming pool, playground, gym, and walking trail. ICM erected a sign that announced the site of its future home. A month later, vandals spray-painted “Not Welcome” on the sign in purple and black, the “t” shaped like a cross. A second sign was also destroyed. Soon after, ICM’s construction materials and equipment were lit on fire and its walls defaced with graffiti.

Yet it was not vandals and arsonists but Islam that was now on trial.

An organized opposition to ICM began after The Daily News Journal announced that the regional planning commission had approved the center. Six hundred protestors descended upon the commission at its July meeting to demand that the board revoke its approval. They dressed in American flag shirts and tee shirts with the slogan, “Vote for Jesus.” They carried signs saying, “God bless America” and held Christian group prayers. They styled themselves as defenders of faith and country against murderous Muslims.

“Everybody knows they are trying to kill us. People are really concerned about this. Somebody has to stand up and take this country back.”

“They seem to be against everything that I believe in, and so I don’t want them … in my neighborhood spreading that type of comment.”

“Our country was founded through the founding fathers—through the true God, the Father, and Jesus Christ.”

“We have a duty to investigate anyone under the banner of Islam.”

Cardoza-Moore’s group, Proclaiming Justice to The Nations, calls itself a counter-jihad movement and claimed that ICM was part of a vast conspiracy with Islamic militants abroad to take over Middle Tennessee. PJTN funded the lawsuit and filed it on September 17, 2010. They paid one witness $3,000 to read pages and pages of anti-Muslim tracts pulled off the internet and patched together.

The judge, Chancellor Robert E. Corlew, III, said he was “not clear on the purpose of his testimony here,” but permitted it anyway, as he permitted other nonexperts’ testimony as well as documents that were not proven legitimate. The “circus,” as a county attorney called it, went on for six days, with plaintiffs’ attorney Brandon examining witnesses by asking nonsensical questions, such as,“Do you want to know about a direct connection between the Islamic Center and Shariah law, a.k.a. terrorism?”

In response to the County Commissioner who contradicted Brandon by saying that the federal agreement does recognize Islam as a religion, Brandon replied, “Are you one of those people who believes everything the government says?”

CNN covered the controversy in its hour-long documentary, “Unwelcome,” as did reporters and columnists in local and national newspapers. Some drew parallels to another case that took place in a different time zone a hundred miles and a hundred years away, in Dayton, Tennessee―the attack on evolutionary science at the Scopes monkey trial in 1925. The Tennessean, based in Nashville, reminded its readers that in 1929, the establishment of another house of worship―a Catholic church for immigrants from Ireland, Italy, and Germany―had also been opposed. In both legal cases, it could be said, reason ultimately prevailed. Science could be taught in schools, and religious liberty was upheld.

Asma Uddin, When Islam is not a Religion? Inside America’s Fight for Religious Freedom (New York: Pegasus Books, 2019)

The mosque received a temporary certificate of occupancy on August 7, 2012, just in time for Ramadan. On August 10, 2012, ICM held its first Friday prayer service in the new mosque. Today, the controversies rage on. In June 2017, almost a decade since ICM’s saga began, vandals attacked the mosque once again. A nineteen-year-old was charged. He would have been seven when objections to the mosque’s existence first arose.

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Joe Brandon, Jr. was not the first and he was definitely not the last to argue that Islam is not a religion and that therefore American Muslims are outside the purview of religious freedom. The claim reflects in starker form a position that many Americans hold in subtler ways. Consider thestatistics: An August 2017 poll by the Annenberg Public Policy Center of the University of Pennsylvania found that almost 1 in 5 Americans believe that, under the U.S. Constitution, American Muslims do not have the same rights as other American citizens.[1] A 2015 poll by the Associated Press and the N.O.R.C. Center for Public Affairs Research found that Americans favor protecting religious liberty for Christians over other faith groups, ranking Muslims as the least deserving of this right. 82% voted in favor of protecting religious liberty for Christians, while only 61% said the same for Muslims.[2]

A colleague of mine who develops state coalitions to pass religious freedom protective laws estimates that 5–10 percent of state lawmakers hold to some version of the “Islam is not a religion” belief. Public statements support his account. For example, Jody Hice, US representative from Georgia, once argued: “Most people think Islam is a religion, it’s not. It’s a totalitarian way of life with a religious component . . . Islam would not qualify for First Amendment protection since it’s a geopolitical system.”

In a January 2018 official press release, state senator of South Dakota, Neal Tapio, a Republican running for the US House of Representatives, questioned whether the First Amendment applies to Muslims. In his words: “Does our Constitution offer protections and rights to a person who believes in the full implementation of Islamic Law, as practiced by 14 Islamic countries and up to 350 [million] self-described Muslims, who believe in the deadly political ideology that believes you should be killed for leaving Islam?”

“John Bennett, a Republican lawmaker from Oklahoma, said in 2014: ‘Islam is not even a religion; it is a political system that uses a deity to advance its agenda of global conquest.'”

John Bennett, a Republican lawmaker from Oklahoma, said in 2014: “Islam is not even a religion; it is a political system that uses a deity to advance its agenda of global conquest.” Allen West, a former US congressman, has said “Islam is a totalitarian theocratic political ideology; it is not a religion. It has not been a religion since 622 a.d.” In 2015, former assistant US attorney, Andrew C. McCarthy wrote in the National Review, “When we discuss ‘Islam,’ it should be assumed that we are talking about both a religion and a political-social ideology. Clearly, one can accept the religious tenets and not the ideology . . . ‘Islam’ . . . should be understood as conveying a belief system that is not merely, or even primarily, religious.” In 2016, retired Lieutenant General William “Jerry” Boykin was named an advisor to Ted Cruz’s presidential campaign despite past statements that Islam “should not be protected under the First Amendment.”

Also in 2016, former national security adviser, Michael Flynn, told an ACT! for America conference in Dallas, “Islam is a political ideology” that “hides behind the notion of it being a religion.”

And the list goes on.

* * *

At the very heart of these claims is the idea that Muslims do not have human rights. Religious liberty is, after all, a human right—a right that is rooted in our human dignity and one that we have simply because we are humans. We do not have to earn it or prove ourselves worthy of it. When people claim that Muslims do not have human rights, they are essentially being told they are not fully human; that they are somehow different than other humans.

It should come as no surprise then that anti-Muslim hate crimes are the fastest growingreligious hate crimes in America. Muslim houses of worship are facing a nationwide opposition movement, which in many cases has even led to mosques being burned down. Indeed, arson has become a common intimidation tactic.

  • In 2011, a mosque in Kansas suffered more than $100,000 in damages because of an arson attack.
  • In 2012, portions of mosques in Wisconsin and Ohio were set on fire.
  • In 2016 the same Wisconsin mosque had its roof burned down, and then a month later, the entire mosque was burned down.
  • In 2017, fires raged at fivemosques, burning down properties in Michigan, Texas, and Washington.

The New America Foundation tracks this information in its data visualization project. Its interactive map displays anti-Muslim activities by state, divided by type of activity (anti-sharia legislation, mosque controversies, hate crimes, etc.). The long list of hate incidents reported to the media in 2018 includes:

  • In Kansas City, Missouri, a man broke into a Muslim family’s home, “spray painted religious and racial slurs inside the home and set the staircase on fire.”
  • In St. Augustine, Florida, “a man attacked Muslim students with a stun gun and knife . . . One of the officers reported that ‘the statements made by the defendant to the victims showed that the assailant only committed the acts due to the victim’s religion.’”
  • In Livingston Paris, Louisiana, “a man rammed his pickup truck through a store because he thought its owners were Muslims.”
  • In Carmel, California, “a man was deliberately hit twice with a car while he was walking with his family. The family was recognizably Muslim because the women were wearing hijabs.”
  • In New York, “Muslim police officers with the NYPD . . . found their lockers vandalized by colleagues, who wrote anti-Muslim messages [including “F—k you, Muslims”] and spread feces on the lockers.”
“We have also seen 43 states limit or attempt to limit Muslim religious arbitration. Proponents call these measures ‘anti-sharia bills.’ They insist on the supposed threat of sharia to American values, despite the fact that the American legal system has safeguards in place to resist excesses and abuses.”

These hate crimes are disturbing, frightening. But the claim that Islam is not a religion seeks to get to something else, too: the deprivation of rights. When Islam Is Not a Religionlooks at these legal implications. The Murfreesboro mosque case embodies what is at stake and is in fact emblematic of the opposition mosques across the nation face. The Department of Justice has noted in private conversations that in nearly all of their cases dealing with opposition to Muslim land use—the building of houses of worship or cemeteries—“Islam is not a religion” fuels the opposition’s fire.

We have also seen 43 states limit or attempt to limit Muslim religious arbitration. Proponents call these measures “anti-sharia bills.” They insist on the supposed threat of sharia to American values, despite the fact that the American legal system has safeguards in place to resist excesses and abuses.

Muslims also face legal hurdles to religious liberty in more subtle forms. In 2010, Professor Richard Schragger at the University of Virginia Law School, argued that, in today’s politicized climate, the outcome of a case could be different merely if one switches out a Christian plaintiff for a Muslim one, with Christians more likely to win. As it turns out, empirical studies on judicial decision-making support his conclusion.

There is evidence that Muslims more than any other religious group face biased judges. Researchers, Gregory Sisk and Michael Heise, looked at all religious liberty cases (Muslim and otherwise) decided between 1996 and 2005, and found that Muslim claimants faced a marked disadvantage. Compared to non-Muslims, Muslims are half as likely to win their religious liberty case in federal court. The number shrinks further when it’s a Muslim prisoner bringing the case, with Muslim prisoners succeeding only a third as often as non-Muslim prisoners.

There is evidence that Muslims more than any other religious group face biased judges. Researchers, Gregory Sisk and Michael Heise, looked at all religious liberty cases (Muslim and otherwise) decided between 1996 and 2005, and found that Muslim claimants faced a marked disadvantage.

What might account for the Muslim disadvantage? Sisk and Heise considered a number of theories. They looked at whether, because prisoners bring most Muslim claims, the claims were largely frivolous. They also looked at whether the prisoner claims were treated differently for substantive reasons. Or whether Muslim claims lost because they were bringing culture war claims that clashed with the secular state (but Muslims don’t bring culture war claims).

Having considered then dismissed a number of explanations, Sisk and Heise settle on their final explanation: Muslims are “at a pronounced disadvantage . . . because they are Muslim.” The cases Sisk and Heise examined involve a religious believer challenging some decision by the government—a decision that a public officer defends as necessary to American law and order. These types of cases trigger base stereotypes about Muslims or Islam. After all, a religious liberty claim by a Muslim puts Islam front and center. A judge may rule on the basis of these assumptions without even realizing it.

The evidence shows that the wider fear and distrust of Islam and Muslims as a threat to American values and safety infects judges, too. Even if judges might try to avoid the constant negative news stream, Islam poses a particular challenge.

These are just some of the challenges facing Muslims’ religious liberty in the US today; When Islam Is Not a Religionpresents a more comprehensive picture.

At the core of the book is a more fundamental point: the challenges to Muslims’ religious liberty are challenges to all Americans’ religious liberty, as the very nature of our rights is that if they are not protected coherently for all, they cease to protect anyone.

Asma T. Uddin is a religious liberty lawyer and scholar working for the protection of religious expression for people of all faiths in the U.S. and abroad. Her areas of expertise include law and religion (church/state relations), international human rights law on religious freedom, and Islam and religious freedom.Uddin has worked on religious liberty cases at the U.S. Supreme Court, federal appellate courts, and federal trial courts. She has defended religious claimants as diverse as Evangelicals, Sikhs, Muslims, Native Americans, Jews, Catholics, and members of the Nation of Islam. Her legal, academic, and policy work focuses on freedom of expression such as religious garb, land use, access to religious materials in prison, rights of parochial schools, religious arbitration, etc. After graduating from The University of Chicago Law School, Uddin served as Counsel for the Becket Fund for Religious Liberty and as Director of Strategy for the Center for Islam and Religious Freedom in Washington, D.C. She is an expert advisor on religious liberty to the Organization for Security and Cooperation in Europe (OSCE), Senior Scholar at the Newseum’s Religious Freedom Center, a Visiting Scholar at Brigham Young University Law school, and a non-residential fellow at UCLA and Georgetown University. She is also a term-member with the Council on Foreign Relations.