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Cultural exemptions for Muslims — even from laws that don’t burden religious practice

[This week, I’m serializing my just-published article, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014); you can see the posts so far here.]

Occasionally, American laws have exempted members of certain religious groups simply on the grounds that the law is a law for the majority, and the minority deserves its own legal system. These exemptions are distantly related to the “millet” family law model in countries such as Israel and India, discussed in an earlier post, where family law questions are delegated to each religious group’s own religious courts.

For instance, one of the religious accommodations enacted in 1700s America was a Rhode Island statute that exempted Jews from the ban on uncle-niece marriage.[90] Nothing in Orthodox Judaism requires uncles to marry nieces, so this was not the sort of exemption for religious objectors to generally applicable laws that the preceding part discussed. Still, historically Judaism hasn’t forbidden uncle-niece marriage, because the Leviticus passages prohibiting incest do not include uncles and nieces.[91] And the Rhode Island legislature apparently took the view that the Christian laws of incest made sense for Christians, but the Jews should have their own rules.

This seems to be what happened in the New Jersey case that rejected a restraining order against a Moroccan Muslim husband who had allegedly raped his wife.[92] The Muslim couple entered into an arranged marriage in Morocco when the wife was seventeen.[93] They moved to New Jersey a month later, but within two months the wife sought a restraining order, alleging that her husband had raped her, saying, “This is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.”[94] The trial judge agreed that the husband had sex with the wife against her will, but concluded,

This court does not feel that, under the circumstances, that [sic] this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.[95]

And because, in the judge’s view, the defendant lacked “a criminal desire to or intent to sexually assault,” the judge found there had been no sexual assault and refused to issue a restraining order.[96]

Unsurprisingly, the appellate court reversed and remanded for entry of a restraining order, writing (among other things):

Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.

As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.[97]

The trial judge’s decision was wrong and has rightly been condemned. But the error was not that decisions should never consider a party’s religious beliefs. As we saw in the last post, some American legal rules do call for exempting people from some generally applicable laws based on their religious beliefs.

Rather, the error is that the court made this decision without any authorization from American law. Whether an act constitutes sexual assault or justifies a restraining order does not turn on whether the person knew that his actions were criminal or mistakenly believed that he was entitled to act as he did — ignorance of the law is no excuse here. And Religious Freedom Restoration Acts and similar rules do not exempt husbands from the prohibition on rape, regardless of their religious beliefs.[98] There is obviously a compelling government interest in preventing rape, and granting an exemption would interfere with that interest (the RFRA standard for when an exemption should be denied).[99]

Indeed, the trial judge’s decision seems to rest on a sort of mistake-of-law “cultural defense” — because the defendant came from a culture in which some conduct wasn’t a crime and therefore didn’t realize that it was a crime in America, he should not be held culpable. But these kinds of cultural defenses have generally been rejected by American courts, precisely because mistake of law is usually not a defense to criminal liability, whether the mistake stems from one’s cultural background or something else.[100] The New Jersey appellate court thus rightly overturned the trial court’s decision.

A hypothetical, dealing with statutory rape rather than forcible rape, can help illustrate the difference between an improper use of Islamic law as a way of trumping American law, and a proper use of Islamic law when American law makes it relevant.

Consider a 30-year-old man who visits the United States with a 17-year-old woman and has consensual sex with her. In most American states, that wouldn’t be a crime, since all but twelve states set the general age of consent at sixteen or seventeen (regardless of the age of the other partner).[101] But in California, which sets the age of consent at eighteen, sex with a seventeen-year-old would be a crime — unless the parties were married.[102]

Now if a California court excused the 30-year-old on the grounds that he’s from a Muslim culture that doesn’t forbid such conduct, that decision would be quite wrong. But say his claim is that the two were married under the law of Israel, where the parties were married and now live, and from which they were visiting Los Angeles on their honeymoon.

To determine whether the man committed a crime under California law, a court would have to decide whether the two parties were indeed validly married under Israeli law; California law provides that a couple is married for California purposes if their marriage was valid where it was celebrated.[103] In Israel, the marriage age is seventeen.[104] And since Israeli law for Muslims is Islamic law,[105] a California court applying California law would be obliged to consult Islamic law.

So if under Islamic law, as applied in Israel, the couple was validly married in Israel, then under California law they were married as well. This means they haven’t committed a crime under California law. (Recall that California statutory rape law expressly excludes sex with one’s legal spouse.) An acquittal on those grounds would be quite right — indeed, it would be required under existing California law.

What matters, then, isn’t whether a court making a decision is considering a person’s country or culture of origin. Nor does it matter whether the court is considering sharia. What matters is whether the decision is authorized by standard, religiously neutral principles of American law. The New Jersey trial court’s decision was wrong, because it wasn’t authorized by American law; the error was the judge’s, not that of New Jersey law more generally, precisely because New Jersey law doesn’t authorize that sort of cultural defense. But a California court would be quite correct to dismiss the charges in the statutory rape hypothetical if the couple was married under the laws of Israel.

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[90]. An Act Regulating Marriage and Divorce, 1798 R.I. Pub. L. 477, 481; Benjamin H. Hartogensis, Rhode Island and Consanguineous Jewish Marriages, 20 Publication Am. Jewish Hist. Soc’y 137, 144 (1911) (asserting that the statute dates back to 1764).

[91]. Leviticus 8:6–18.

[92]. He was later convicted of rape. See Conte, supra note 14.

[93]. S.D. v. M.J.R., 2 A.3d 412, 412 (N.J. Super. Ct. App. Div. 2010).

[94]. Id. at 416.

[95]. Id. at 418.

[96]. Id.

[97]. Id. at 422.

[98]. Cf. Fraley v. State, No. 97,823, 2008 WL 3367566, at *8 (Kan. Ct. App. Aug. 8, 2008) (characterizing “the argument that the marriage vows between Fraley and his wife rendered Fraley’s conduct not the crime of rape but rather the free exercise of religion guaranteed by our constitution” as “a claim that appellate counsel wisely chose to ignore in this appeal”).

[99]. E.g., 51 Okla. Stat. § 253(B) (2012).

[100]. See, e.g., State v. Al-Hussaini, 579 N.W.2d 561, 563 (Neb. Ct. App. 1998).

[101]. See Eugene Volokh, What Are the Ages of Consent Throughout the Western World?, The Volokh Conspiracy (Apr. 30, 2008, 2:25 PM),

[102]. Cal. Penal Code § 261.5 (Deering 2008).

[103]. Cal. Family Code § 308(a) (effective Jan. 1, 2010).

[104]. U.S. Dep’t of State, Israel 2012 Human Rights Report 20 (2012), available at

[105]. Hassan v. Holder, 604 F.3d 915, 925 (6th Cir. 2010).