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Laws that track Islamic law rules

[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.]

A city with a large Muslim population might — if state law allows it — dramatically limit sales of alcohol, impose heavy restrictions (short of total bans) on strip clubs or pornography stores, or crack down on prostitution.[106] Or such a city could try to ban material that blasphemes against Islam or against religions generally. Or a city could use laws banning “disturbing the peace” to suppress allegedly blasphemous or anti-Islam speech,[107] and a university could use campus speech codes to do the same.[108] Or a city or school could mandate that women wear headscarves in public. What should our legal system do about this?

Here again we should recognize that similar laws have been enacted in jurisdictions with large populations of Christian groups. Laws restricting alcohol sales, strip clubs, pornography stores, prostitution, blasphemy and consensual sexual behavior, as well as laws that treat women differently from men, are familiar in American history. Some such laws are familiar in the American present as well, including in overwhelmingly non-Muslim jurisdictions.[109] When those laws violate specific constitutional constraints, such as the Free Speech Clause or the Equal Protection Clause, they are struck down. But when they don’t violate such constraints, they are simply democracy in action.

Nor is there anything inherently improper with people trying to enact their religiously based moral beliefs — e.g., about abortion, prostitution, alcohol, and the like — into law. Secular American voters and legislators are entitled (subject to the Free Speech Clause, the Equal Protection Clause, and similar constraints) to use the law to implement their views about what is right or wrong and harmful or useful, even if the views rest on moral assumptions that are unproven and unprovable. Christian voters and legislators are similarly entitled to implement their views, even when those views rest on Christian religious beliefs.[110] Muslim voters and legislators are entitled to do likewise.

* * *

[106]. State law often leaves local governments free to enact such laws within their own boundaries.

[107]. See, e.g., Volokh, supra note 10; Volokh, supra note 11.

[108]. Cf., e.g., Coll. Republicans at S.F. State Univ. v. Reed, 523 F. Supp. 2d 1005, 1007-09 (N.D. Cal. 2007) (discussing discipline of anti-Hamas students for stepping on the Hamas flag, which contains the word “Allah” in Arabic); Nat Hentoff, ‘Free Speech’ Cries Ring Hollow on College Campuses and Beyond, USA Today (Apr. 18, 2006, 10:31 PM), (reporting on censorship of Mohammed cartoons at New York University and Century College); Aaron Brown, Prophet Cartoon on Door Prompts Action, The Chicago Maroon (Feb. 17. 2006, 4:30 AM), (reporting on disciplinary investigation of a student who posted Mohammed cartoon on his dormitory door).

[109]. E.g., ABC Commission North Carolina, Legal Sales Areas, (indicating which counties in North Carolina generally ban a wide range of alcohol sales);37 Okla. Stat. § 591.B.1 (2012) (providing that counties may ban alcoholic beverage sales on Sundays).

[110]. E.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961) (upholding Sunday closing laws); Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983) (upholding denial of tax exemption to university that discriminated based on race); Harris v. McRae, 448 U.S. 297, 319–20 (1980) (upholding ban on government funding of abortion).

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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