Professor Mohammad Fadel on Muslims, Islam, and Bostock

The increasingly heated culture wars in the United States involving the civil rights of homosexuals and trans-gendered individuals has come to the Muslim community.  The recent decision of the Supreme Court, Bostock v. Clayton County, unleashed a series  of vitriolic tweets by some American Muslims who opposed the Supreme Court’s ruling against American-Muslim legal and civil rights organizations that had filed a brief (the “Muslim lawyers’ brief”) in support of the LGBTQ employees (for a sample of some such tweets, see this link.

Full disclosure: I am a board member of Muslim Advocates, one of the organizations vilified in these tweets, and I spent the better part of two days defending the Supreme Court’s decision on Twitter and Facebook); the brief filed by the Islam and the Religious Freedom Action Team can be viewed here).

The intra-Muslim dispute regarding our community’s stance toward the rights of LGBTQ persons has not gone unnoticed, particularly by religious freedom NGOs generally aligned with the US Religious Right. The Witherspoon Institute, a conservative organization dedicated  to “the public understanding of the moral foundations of free and democratic societies,” recently published a piece titled, “American Muslims Challenge Transgenderism – and Each Other.” The essay argued that the differences between the coalition of Muslim legal and civic organizations that asked the Supreme Court to stand with the dismissed employees, and those Muslim groups that asked the Supreme Court to exclude LGBTQ persons from Title VII’s protections offered an opportunity for outside observers to witness an intramural Muslim debate. The essay portrayed the latter as heroically defending religious “beliefs,” and the LGBT-supportive side as cravenly pushing “LGBT causes.”  

Ultimately, it seems, the point of the piece was to divide American Muslims into the same type of camps that are battle in the U.S. “culture wars.” The piece was less interested in a fair presentation of the range of views within the Muslim community regarding LGBTQ issues.

I have no doubt that the author is sincere in her desire to promote inter-faith fellowship between Muslims and Christians, particularly, Roman Catholics.  No reasonable person would attempt to do otherwise.  But the good will required for such interfaith dialogue is undermined when certain groups within another community are singled out as having the “right” views while others are essentially labeled as belonging to hostile forces.  

The good will required for such interfaith dialogue is undermined when certain groups within another community are singled out as having the “right” views while others are essentially labeled as belonging to hostile forces.  

It is particularly odd to see a non-Muslim condemning Muslim organizations who support the simple right of LGBTQ individuals to be protected against discrimination in the workplace to be, at best, unfaithful Muslims, and at worst, to be nothing more than “identity” Muslims.  Such a conclusion grossly distorts what the brief–and its many signatories–was setting out to do. For one, the brief avoided theological arguments and focused on advancing the purely secular legal argument that discrimination against LGBTQ individuals in the workplace runs afoul of Title VII’s prohibition against discrimination “because of sex.”  

The Muslim lawyers’ brief said that if the Supreme Court were to interpret the statutory phrase “because of sex” in the manner suggested by the employers, either because (1) the original Congress that enacted Title VII never contemplated that it would protect sexual orientation or gender identity, or (2) to apply it in accordance with its plain sense would compel certain religious defendants to contradict their sincerely held convictions that homosexuality is sinful, that transgenderism is a violation of God’s natural order, or both, the interpretive framework that had governed Title VII since its enactment would have been gravely undermined.  

We then made the point that if the interpretative framework is undermined in this way, Muslims in the workforce might very well lose some of their current Title VII protections. For example, an employer could claim that Congress never intended in 1964 that Muslims should be able to take time off from work to attend the weekly Friday prayer or even to attend Eid Prayers twice a year.

We also noted that if the Supreme Court decided that sexual orientation and gender identity should not be protected by Title VII because that would force religious employers to violate their religious beliefs, employers could use the same excuse against Muslim employees. Muslim employees would become vulnerable to adverse employment decisions by employers who don’t like Muslims.

I acknowledge that these arguments can appear borderline frivolous. But that is only because the way we interpret Title VII makes such possible defenses to the accommodation of Muslims appear ridiculous.  If the employers’ arguments had succeeded and the interpretative tools changed, the courts could construe Title VII in a manner contrary to its plain sense. Employers could use the same logic they used against LGBTQ protections against Muslims and other minorities.  

Indeed, we know that according to Justice Story, one of this country’s greatest and earliest authorities on the constitution, the First Amendment’s original intent did not contemplate equal religious freedom for Muslims.  

Justice Stevens, writing for the majority of the Supreme Court in Wallace v. Jeffries, rejected this historically-constrained view of the First Amendment, and wrote:

“At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among “religions” – to encompass intolerance of the disbeliever and the uncertain.”

Any argument that seeks to consecrate ancient understandings of the law at the expense of its plain meaning are, therefore, particularly dangerous for US Muslims since it might lead to the view that Muslims were not an intended beneficiary of the protections contemplated by that particular provision of the law.  The Muslim organizations that signed onto this brief were rightly concerned about the implications that the logic of the employers’ arguments would be detrimental to Muslim rights under non-discrimination laws.

The article also mistakenly accused the Muslim lawyers’ brief of comparing transgenderism to religious belief, stating that “the authors of the [Muslim lawyers’] brief embrace and defend LGBT causes, and maintain that gender identity is, even more than religious belief, a serious, ‘sincerely held belief’ deserving legal protection (emphasis added).”  In fact, the Muslim lawyers’ brief was responding to the employers’ claim that because claims of transgenderism are subjective, courts would be unable to police the truthfulness of such claims, leading to a flood of false claims of transgenderism.  The Muslim lawyers’ brief, however, fully vindicates the ability of courts to distinguish between truthful claims of transgenderism and insincere attempts, saying “Courts are fully capable  of  testing  the  genuineness  of  transgender status-based  claims,  just  as  they  do  religion-based claims.” There is nothing in the Muslim lawyers’ brief that claims that transgenderism or sexual orientation is more real or more worthy of protection than religion and religious practice.  

While one might understand why a group of Muslim lawyers and civil rights activists might be attacked for failing to satisfy religious standards of religious orthodoxy (even if those accusations are groundless), but it is jarring to read a non-Muslim make such an attack on a religious institution.  The article’s attack on the Islamic Society of Basking Ridge is therefore inexplicable.  The Islamic Society of Basking Ridge had been involved in protracted litigation with the Bernards Township over the Society’s right to build a mosque, a  dispute that eventually resulted in a resounding victory for the Islamic Society.  The article essentially accuses the Islamic Society of having betrayed its religious liberty allies by signing the Muslim lawyers’ brief:

It is astonishing that the Islamic Society of Basking Ridge, New Jersey supports the [Muslim lawyers] brief. In 2016 this mosque used US law to argue successfully in court for religious freedom for themselves to build a mosque; multiple religious groups supported them in this effort. But now, after success at benefiting themselves, the Islamic Society of Basking Ridge has turned around and is arguing against religious freedom for other religious believers to exercise their faith without government coercion in internal affairs, such as being able to abide by the recognition of human sex, i.e. male and female. Using religious freedom law for their own benefit but then undermining religious freedom for others is hypocrisy.

It is as though the article views religious freedom as a partisan issue, not a principled doctrine of toleration based on equal liberty. Accordingly, for American Muslims to benefit from this conception of religious liberty, they must sign on to a view of religious liberty that empowers the religious to exempt themselves from the law in any situation in which they would be forced to deal with a non-believer that the religious person finds morally repugnant. The Muslim lawyers’ brief has an entirely different conception of religious liberty, one in grounded in the right to be treated equally regardless of a person’s religious belief.

While there are certainly circumstances when religious freedom includes a positive liberty to exclude non-believers, it can’t be an absolute right for believers to exempt themselves from general law, particularly when the legislation at issue is far removed from core religious exercise.  Protection from invidious discrimination in the workplace is precisely the kind of general law that is far removed from the core concerns of religious exercise.  Accordingly, religious objections to such a law rightly draw skepticism as being motivated more by animus than a concern for religious exercise.  There might be some circumstances when the labor market and religious exercise intersect in a significant fashion, such as when the employer is a religious organization, in which case the religious commitments of its employees are clearly relevant to the organization’s associational integrity, or the employee needs an accommodation in order to discharge a significant religious obligation, such as attending Friday prayer for a Muslim employee.  But protecting the associational rights of religious organizations does not require complete exclusion of LGBTQ individuals from the protections of Title VII and other non-discrimination norms.  It is simply undeniable that the right of a transgendered person to be considered fairly for an open position in a commercial venture is far removed from a demand to be hired as the prayer leader of a mosque, and I am confident that the law will continue to recognize this distinction.  

The article also advances another seductive, if dangerous argument, namely, that the Muslims who asked the Supreme Court to side with the employers were acting out of religious beliefs, while the signatories to the Muslim lawyers’ brief were elevating “intersectionality” over all religious principles.  This criticism wrongly pits theological truth against the demands of justice, when Muslims are required to respect both.  

In Muslim ethical discourse, actions fall either under the exclusive jurisdiction of God (claims of God, or ḥuqūq allāh in Arabic) or the jurisdiction of human beings (ḥuqūq al-ādamiyyīn).  As a general rule, acts that fall under divine jurisdiction are vindicated primarily in the next life, not now.  Although Muslims are required to communicate Islam’s teachings about the true moral status of actions, Muslims are not required to enforce those rules in this world, particularly on those who are not Muslims.  That is why Islamic law, despite contemplating quite severe penalties for sexual misconduct, institutionalized evidentiary and substantive defenses expressly designed to preclude those punishments from taking place.  

But actions that affect the rights of fellow human beings are an entirely different matter. Muslims are required to vindicate the just claims of fellow human beings.  Just claims are not only those claims that arise purely under Islamic law, but also include claims that arise from breaches of covenants that humans make with one another. Indeed, Muslims, as a matter of religious belief, are obligated to act in conformity with their undertakings, including their civic undertakings as citizens. Such obligations, in Islamic belief, are as binding as the obligations that God imposes on human beings directly in the Quran, at least until such time as a Muslim publicly renounces that covenant.    

Muslims are required to vindicate the just claims of fellow human beings.  Just claims are not only those claims that arise purely under Islamic law, but also include claims that arise from breaches of covenants that humans make with one another.

Certainly, homosexuality and transgenderism pose theological and moral challenges to believing Muslims, and Muslims certainly have good reasons internal to Islamic doctrine to believe that these are false and sinful ways of life.  That does not mean, however, that it is inconceivable for Muslims to tolerate a range of positions on these questions.  In this respect, the observation of a 12th century Andalusian Muslim judge and theologian, al-Qadi Abu Bakr b. al-ʿArabī on a dispute regarding hermaphrodites is interesting.  Responding to the claim by some of his contemporaries that the existence of hermaphrodites is inconceivable because it contradicted the plain sense of the Quran’s teaching about God’s creation, he wrote:

“A group among the leaders of the public deny the hermaphrodite’s existence, arguing that God divided creation into male and female.  We responded to them, saying ‘This displays remarkable ignorance regarding the Arabic language, imbecility with respect to rhetorical style, and underestimation of the expansiveness of divine power.  As for God’s power, sublime is He, He is Expansive and Knowledgeable.  As for the apparent sense of the Quran, it does not negate the hermaphrodite’s existence. God, sublime is He, said [al-Shūrā, 42:49-50]: “To God belongs dominion over the heavens and the earth. He creates whatever He wishes.” This is a universal statement, communicating praise, and it is inconceivable that it could be particularized or qualified in any way, because it is a necessary entailment of divine omnipotence. As for God’s statement, “He gives whom he wishes daughters, and whom He wishes sons, or He pairs them, sons and daughters, and He makes whomever He wishes sterile,” this is a statement about the preponderant course of affairs in nature. He remained silent about what occurs rarely, relying instead on its inclusion in the first half of the verse that affirmed divine omnipotence. Finally, the empirical fact of hermaphrodites testifies in favor of their existence, and direct eye-witness knowledge gives the lie to those who deny it.’”

Ibn al-‘Arabi’s commentary teaches us that we must be modest about our claims about the natural world based on the plain meaning of revelation because, when we make categorical statements about nature, we run the risk of restricting divine omnipotence based on our limited, subjective experience of the natural world and drawing unwarranted inferences from partial readings of revelation.  But – and this is the crucial point – regardless of the true Islamic position on issues related to homosexuality and transgenderism, all American Muslims should respond to the question posed by Bostock in the same way, and that is to ask what is the best way to understand the dispute between the parties under the principles of Title VII, not under Islamic theological or moral teachings.

As Muslims, we have undertaken to bind ourselves to follow the law of the United States. To ask a court to abandon the law and instead apply the theological teachings of Islam, or the teachings of some imagined, syncretic Abrahamic religion, would amount to a violation of our Islamic duty to uphold the terms of citizenship that we have solemnly agreed to honor. In short, asking the court to do its duty, and to uphold the plain sense of the law is eminently “religious” because Islamic political ethics demands of Muslims who are citizens of the United States not only to uphold their covenants, but to act to ensure that those covenants continue to be respected.  

As Muslims, we have undertaken to bind ourselves to follow the law of the United States. To ask a court to abandon the law and instead apply the theological teachings of Islam, or the teachings of some imagined, syncretic Abrahamic religion, would amount to a violation of our Islamic duty to uphold the terms of citizenship that we have solemnly agreed to honor.

It is no secret that Muslim life in the U.S. is precarious in many ways.  Some Muslims think that the greatest threat to Muslim life is moral dissolution of the community under the baneful influence of godless and secular forces that surround it in civil society, and so seek to make common cause with other religious believers against what is perceived to be a common godless enemy.  Others believe that the greatest threat to Muslim life in the U.S. is the overt and barely concealed hostility of the Right, a great many of whom are self-identified “believers” in a Judeo-Christian American.  

It cannot be denied that there is a kind of superficial overlap in some values between orthodox Islam and the American Religious Right, particularly on questions of sexual morality.  For the Religious Right, however, Muslims will always be “other” to America, because as the “sum of all heresies,” Islam must always be the junior partner in a Judeo-Christian America, the child that is to be seen, but not heard.  It was not America’s Christian values that made room for Islam in America, but America’s Enlightenment values, perhaps best embodied in the inclusion of the Prophet Muhammad (S) in the Supreme Court’s frieze to the world’s greatest lawgivers.  We American Muslims should look to Thomas Jefferson and James Madison for models of political morality, not Cotton Mather.  Accordingly, when American Muslims faithfully promote the political ideals of democracy, they are being faithful to both their religious teachings and the common good.  

Muslims must remain vigilant against all those who pit truth against right, whether the threat comes from the Right or the Left.  Muslim critics of Bostock talk about the risks to mosques, Muslim religious schools, and Muslim-owned small businesses: they will be compelled to employ LGBTQ individuals; Muslim women will not be able to perform ablutions because transgendered men will invade their private spaces; and Muslims will be persecuted for their beliefs regarding the sinfulness  of homosexuality and the falseness of transgenderism.

The best way to prevent this outcome, however, is not to support invidious discrimination against homosexuals and transgendered persons in the workplace, but to insist on respecting the rights of everyone, the heterosexual and the homosexual, the cis-gendered and the trans-gendered, the religious and the non-religious. Yes, we must vigorously defend the rights of believers and religious institutions when their legitimate interests in religious expression are threatened by non-believers who seek to impose the ethics of secular spaces into religious domains, but we must also zealously defend the rights of all to equal treatment in shared, secular spaces.  

If, however, we ally ourselves with Catholic integralists and Protestant fundamentalists out of a desire to make divine law superior to democratic law because of our aversion to homosexuality and transgenderism, and LGBTQ individuals, we should not be surprised if non-believers withdraw their support for religious freedom.  That would be a catastrophic outcome for U.S. Muslims, both theologically and politically. 


Mohammad H. Fadel is a Full Professor at the University of Toronto Faculty of Law, which he joined in January 2006. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago and received his JD from the University of Virginia School of Law.

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