The Niqabi Paralegal

other issues with Muslim marriage contracts

Marriage is not simply a private contract between two individuals but also has to be registered with the state and meet certain requirements. If these requirements are not met, the state may find that no real marriage ever existed. This may be a problem for the woman in particular, since she has no claim to any property gained during the alleged marriage (in a community property state) or any type of alimony after a divorce. This is especially true if the state does not recognize common law marriage. I found two cases involving Muslims that illustrate these problems. The first is In re Marriage of Vyronis, 202 Cal. App. 3d 712 (1988). This case involved a type of marriage permitted by Shi'ite Muslims called mut'a or temporary marriage. Mut'a is not permitted by Sunni Muslims, who make up about 85% of all Muslims. Temporary Marriage in Islamic Law is a Shi'ite article explaining the rules of mut'a. In Vyronis, Speros Vyronis (a non-practicing Greek Orthodox Christian) and Fereshteh, an Iranian Muslim, made a mut'a marriage. Fereshteh was not familiar with American law and thought that the marriage would be recognized as valid since Vyronis told her it was. It was only when she filed for divorce that she discovered the truth. She then attempted to claim status as a "putative spouse" on the grounds that she had a good faith belief that she and Vyronis really had been married. This was the issue before the Court of Appeals of California. The court looked at the circumstances of the marriage and found it that it would be "unreasonable" for Fereshteh to think that her mut'a marriage was a valid California marriage: In sum, the alleged private marriage went unsolemnized, unlicensed and unrecorded. Thereafter, the parties did not cohabit, or hold themselves out as husband and wife, and in no way approximated the conduct of a married couple. Because the facts were at odds with the formation and existence of a valid marriage pursuant to California law, Fereshteh could not rely on Speros's statements reasonably to believe she was married. Notwithstanding Fereshteh's sincerity, her belief was unreasonable and therefore not in good faith. Vyronis, supra at 722. It's interesting to read some of the factors the court considered. For instance, they noted that Fereshteh "did not use Speros's surname". I guess this was a still a significant factor even in 1988 California! Feminists might be surprised by this one. Actually, Muslim women in many cultures do not take their husbands' surnames and some Muslims actively believe that they should not do so because the Quran says that children should be named after their fathers (Quran 33:5; however in context the verse seems to mean not to name adopted children after their adoptive families but they should keep their original names). Another factor cited by the court is that "the parties did not commingle their finances". In an Islamic marriage, the property that the wife brings to the marriage is kept separate so that it is under her exlusive control. The husband supports the family entirely out of his own finances (if the husband fails to provide, the wife can take the money without his permission, according to a ruling of the Prophet Muhammad, peace be upon him). Thus the husband and wife keep separate finances. A third point that the court mentioned is "nor did they assume any support obligations for one another". This is one of the unique characteristics of mut'a marriage and one of the reasons that Sunni Muslims don't permit it. Mut'a does feature a mahr, but the husband does not provide any support during the marriage and the husband and wife do not have any inheritance rights on each other as in a normal marriage (a widowed spouse is always entitled to some fraction of the deceased's estate under Islamic inheritance law). Mut'a is called "temporary marriage" because the marriage is made for some fixed period of time. The marriage ends automatically at the end of that time unless the contract is renewed so there is no divorce (it's not clear from the court's opinion what the term on the mut'a was here or if this factor was considered) and therefore the wife does not get any divorce provision either. Given that Sunni Muslims don't recognize mut'a as a valid marriage, maybe it's not suprising that the California Court of Appeals didn't either. I tend to think that the courts should recognize any private contract between two people and enforce the terms of that contract; but Fereshteh wasn't due any money from Speros under the mut'a contract anyway. This is definitely an unusual case. The second case that I found was Farah v. Farah, 16 Va. App. 329 (1993). Here, the couple were married in England through a proxy ceremony. This type of marriage is valid under Pakistani law. It doesn't meet the requirements of English marriage law; I don't know if an English court would recognize it under comity as it recognizes marriages performed in Pakistan under Pakistani law. The Court of Appeals of Virginia refused to recognize the marriage because it said that the marriage has to be valid under the laws of the country where it is celebrated. Since the marriage was celebrated in England, the court looked to see if the proxy marriage was valid under English law and it wasn't. The lesson from Vyronis and Farah seems to be not to make private marriage contracts. Like I said, I think this is unfortunate. Any other contract that a man and a woman make would be upheld, so why not a contract of marriage?

Muslims and child custody in the American courts

In today's mobile society, it's increasingly common for people to marry someone from another country and to move back and forth between that country and the United States. If the couple divorce and they have children, many conflicts can arise. Which country's law should govern who gets custody of the children? Is it the wife's country? The husband's country? The country where they lived during most of their marriage? The country where one or the other of them moved after their separation? This is the context for most of the child custody cases involving Muslims that American courts have dealt with. Many, though not all, of the cases involve a woman who moved to the U.S. with the child(ren) after the separation, having previously lived in a Muslim country. Often the woman initiates divorce proceedings in an American court while the man initiates divorce proceedings in the courts of his own country. Should the American court recognize and uphold the decision of the Muslim country's court? Case law in this area is decidely mixed. So far I've found six cases. In two of them the American court upheld the decision of the Muslim country's court. In another two, the American court rejected the decision of the Muslim country's court. And in the remaining two, an appellate court instructed a trial court to examine whether or not to uphold the decision of the Muslim country's court. The governing law in all cases is the Uniform Child Custody Jurisdiction Act (UCCJA), which had been enacted by all the states in question. The UCCJA deals with interstate rather than international jurisdictional issues. In applying it to international custody disputes, the courts have recognized the decisions of foreign courts only when they feel that the decisions are not contrary to public policy in their states. It's the "not contrary to public policy" part that causes the most problems for Muslims. In all six cases, the question that the court had to answer was whether the Muslim country's court considered the best interests of the child in its custody decision. As I showed in the first entry on this topic, Islamic law does in fact hold the best interests of the child to be central. This may or may not be true of the actual laws in a Muslim country, which are not necessarily in accord with Islam. I haven't researched the Muslim countries' laws that were at issue in any of these cases, so I can't speak to whether they are just or not. The two cases that appellate courts remanded to the trial courts for further proceedings are Ivaldi v. Ivaldi, 147 N.J. 190 (1996), and In re the custody of R, 88 Wn. App. 746 (1997). Ivaldi dealt with the courts of Morocco while In re R dealt with the courts of the Philippines. The two cases in which the decision of the Muslim country's court was rejected are Ali v. Ali, 279 N.J. Super. 154 (1994), and Amin v. Bakhaty, 798 So. 2d 75 (2001). Ali deals with the courts of Gaza, Palestine. The New Jersey Superior Court said: This court has no knowledge as to whether the Sharia court made specific findings as to what was in Nader's "best interests." However, it is revealing that the defendant submitted proof in support of his request for comity which indicates that under Muslim law, a father is automatically entitled to custody when a boy is seven; the mother can apply to prolong custody until the boy is nine, however, at that time, the father or the paternal grandfather are irrebuttably entitled to custody. Such presumptions in law cannot be said by any stretch of the imagination to comport with the law of New Jersey whereby custody determinations are made based upon the "best interests" of the child and not some mechanical formula. Ali, supra at 167 (citations omitted). Amin deals with the courts of Egypt. The Supreme Court of Louisiana based its decision on the following description of Egyptian law: According to Dr. Bakhaty's expert, Ms. Aby, Egypt follows Islamic family law, which structures some of the rights between family members based solely on gender. Under the Egyptian concept of "guardianship," the father has the absolute right to the guardianship and the physical custody of the minor child. While physical custody of a young child would generally be with the mother, guardianship or right of control always stays with the father. After a divorce, the mother's physical custody of the child will generally only be allowed if the father with guardianship lives nearby and could continue to exercise control, including the right to choose the habitual residence of the child. Amin, supra at 85. I want to stress here that I do not know if these representations of the laws of Gaza and Egypt are accurate. The use of the word "automatically entitled" in Ali and the phrase "based solely on" in Amin imply that the courts of Gaza and Egypt do not make any inquiry into whether the father is of good moral quality (as Islamic law demands) nor consider any other factors. Is this true? Or do the courts of Gaza and Egypt follow principles that generally give preference to a certain parent as being in the best interests of the child? There's a big difference. That's illustrated in the last set of cases, in which American courts upheld the decisions of Muslim countries' courts. The two cases are Malak v. Malak, 182 Cal. App. 3d 1018 (1986), and Hosain v. Malik, 108 Md. App. 284 (1996). Malak deals with the courts of Lebanon. At the trial, a summary of the proceedings in the Lebanese court was introduced. These made it clear that the Lebanese court had considered the best interests of the children in the immediate future and the long run. Hosain deals with the courts of Pakistan. The Court of Special Appeals of Maryland noted: And this case is not about whether the Pakistani religion, culture, or legal system is personally offensive to us or whether we share all of the same values, mores, and customs, but rather whether the Pakistani courts applied a rule of law, evidence, or procedure so contradictory to Maryland public policy as to undermine the confidence in the trial. Hosain, supra at 302. Later, it said: Preliminarily, we believe it beyond cavil that a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of the community and country of which the child and - in this case- her parents were a part, i.e., Pakistan Id. at 309. The court examined the rules of preference employed by the Pakistani judge in determining the best interests of the child and noted: [W]e are simply unprepared to hold that this longstanding doctrine of one of the world's oldest and largest religions practiced by hundreds of millions of people around the world and in this country, as applied as one factor in the best interest of the child test, is repugnant to Maryland public policy. Id. at 318, 319. The Hosain court conducted an extremely thorough investigation of Pakistani law and recognized that just because another country has different ideas about what is in the best interests of the child than American courts do, that doesn't mean they haven't considered those interests. Likewise, the Malak court looked at the actual proceedings of the Lebanese trial court. By contrast, the Ali court looked only at a statute without investigating how the Gaza courts interpret and apply that statute (an odd error to make in a common law system, one would think) and the Amin court likewise did not look at the trial proceedings in Egypt but took the testimony of an expert witness (whose qualifications are not indicated) about statutory law. Part of the failure is with counsel who do not seem to have made efforts to provide the judges with sufficient information. A judge can only rule on what he hears. But I think that part of the failure is also with judges who seem to be unwilling to consider that another culture may have different ideas about what is in the best interests of the child than they do and that these other ideas are valid for the people of that culture.

what does Islam say about child custody?

Islamic law sets out three stages of childhood. The first stage is the period of weaning. This lasts from birth up to two years of age. The second stage is the period of custody (this is a term of art). This is from age two to the age of discretion, which is usually seven or eight. The third stage is the period of sponsorship. This is from the age of discretion to sexual maturity. The signs of discretion and sexual maturity are set out in the texts and judgment of the child's stage is based on those signs rather than on age. Some children may reach discretion at an earlier age than others. If a couple divorce while the child is in the period of weaning, there are two possibilities. The couple must agree on one or the other. The first possibility is that the mother does the weaning. If so, she is entitled to full support from the father (Quran 65:6). She does not remarry during this time. The second possibility is that another woman does the weaning. If so, the father pays to support that woman. In all cases, the father has complete financial responsibility for the child and for whoever is providing care for the child. When the child passes into the period of custody, the mother is favored as long as she is a Muslim (since the father has an obligation to raise the child as a Muslim; in custody disputes concerning non-Muslim children, the mother should be of the same religion as the child). She must also be of good character (this is a requirement for the father as well if he is to have custody) and she does not remarry. The father must provide support for her and the child. In his discussion of the rules of custody, conservative Saudi scholar Shaykh Muhammad al-Munajjid writes: Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus... But it is best to pay attention to the interests of the child, because his rights come first. When the child reaches the period of sponsorship, there is a difference of opinion among the Islamic scholars about which parent should sponsor the child. Shaykh Munajjid explains: The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship. Here he lists the views of some of the major schools of thought in Islamic law. Once the child has reached adolescence, he or she is free to make his or her own choices about where to live. Islamic law recognizes, as Shaykh Munajjid put it, that the child's rights come first. As the child becomes older and is better able to understand and articulate his or her own interests, the child's free choice is given greater weight. At the same time, Islam sets out guidelines about what is in the best interests of a child who is too young to understand or articulate his or her own interests. Some of these guidelines include: - it is in the child's best interests that the parent is of the same religion as the child - it is in the child's best interests that the parent is of good moral character - for a child under the age of discretion, it is in the child's best interest to be raised by the mother if possible There are a lot of misconceptions about Islamic child custody rules. Many people think that a mother never gets custody of her children. As the explanation above shows, this is simply false. The father always has the obligation to provide financially for his child, but the mother is in fact very strongly preferred for custody when the child is below the age of discretion. Many people also think that Islamic rules are arbitrary and don't take into account the best interests of the child. This is also not true. There are definitely abuses. A judge may hold a very strict definition of what a mother of good moral quality is while holding a very loose definition of what a father of good moral quality is, thus giving custody to an abusive father because the mother is not sufficiently observant in the judge's opinion. But this is due to corruption in the judiciary not to something about Islam itself.

miscellaneous updates on Freeman case

Freeman's trial has started. Court TV is carrying it (more background here). Two things bother me about what has occurred so far. First, Freeman's past criminal record has nothing to do with the validity of her religious exercise claim. It should have been excluded. Second, the prosecution is trying to put different interpretations of Islamic doctrine on trial, as if it matters whether Freeman's position is the "official" one of Islam. That should not be a factor; what matters is whether Freeman's belief is religiously based and whether she holds it sincerely. Besides, as I mentioned before, it's not the court's job to decide on religious doctrine, nor should it be. I'm afraid that this is going to turn into a show trial and that there will be more attention given to scoring points with the media than with genuinely seeing justice done. In other notes: ACLU Florida has posted a press release as well as a statement by Freeman. Law professor Eugene Volokh has posted some commentary on the case. Reader Marcia Oddi of the Indiana Law Blog reports that current Indiana law provides: (d) The bureau may provide for the omission of a photograph or computerized image from any other license or permit if there is good cause for the omission. IC 9-24-11-5 (d). It is not clear what "good cause" means or how one goes about seeking the omission of the photograph (Indiana, as you may remember, was the first state I found where the courts recognized a religious exemption for non-photo driver's licenses.) Update 5/29: Court TV coverage of the second day of the trial and closing arguments. A decision is expected by the end of next week. You can also read a filing by Freeman's lawyers. Law professor Eugene Volokh discusses the larger legal issues (also here)

a new approach to the mahr

Thanks to Muslim lawyer Abed Awad, New Jersey courts have begun taking a new approach to mahr cases. The ground-breaking case is Odatalla v. Odatalla, 355 N.J. Super. 305 (2002). The key is to look at how the mahr is regarded in Islamic law, rather than trying to fit a Muslim marriage contract or mahr agreement into existing categories in American family law. A mahr agreement is not a prenuptial agreement. As the fiqh article I linked to in the first post of this series makes clear, a Muslim marriage contract is valid without specifying a mahr. Instead, the mahr agreement is a separate arrangement between the married couple. As the Superior Court of New Jersey wrote in the Odatalla decision: Clearly the Mahr Agreement in the case at bar is nothing more and nothing less than a simple contract between two consenting adults. It does not contravene any statute or interests of society. Rather, the Mahr Agreement continues a custom and tradition that is unique to a certain segment of our current society and is not at war with any public morals. The rules governing simple contracts between two consenting adults are much more lenient than those governing prenuptial agreements. This makes it much more likely that the mahr agreement will be upheld. Awad has successfully used this approach in several other cases to have the courts uphold Muslim mahr agreements. See Groundbreaking Ruling Recognizes Islamic Marriage Agreement and Muslim Mahr. Awad has also written a law journal article, Court Enforces Mahr Provision in Muslim Marriage Contract, for the New Jersey Law Journal. The article is published here at The Niqabi Paralegal by permission of the author.

the mahr in American courts

The mahr is generally specified in the marriage contract itself. The contract may contain other conditions and stipulations governing the marriage, with particular attention to the rights of the parties to seek divorce and the money due to the woman in the event of divorce or death of the husband. Because of this, the Muslim marriage contract has generally been treated by the American courts as a prenuptial agreement. This is true even if the marriage contract mentions only the mahr and not any other provisions. After all, by custom the bulk of the mahr is to be given only in the event of divorce. This is where Muslims may run into trouble. Each state has its own requirements for prenuptial agreements and the Muslim marriage contract may not meet these requirements (especially if it was made in another jurisdiction or even another country). Some courts have also held that the postponed mahr creates an incentive for the woman to initiate divorce, which these courts say is contrary to public policy. Aside: This is a misunderstanding of Islamic divorce law. Under Islamic law, a woman may seek divorce for cause (Quran 4:128) or in what Americans generally call "no fault" divorce (khula, Quran 2:229). If she seeks divorce for cause, she retains the mahr. However, if she wants a khula (no fault) divorce, she has to give the mahr back. So under Islamic law there is no "incentive" for the woman to seek divorce in order to claim the mahr. Because the marriage contract is treated as a prenuptial agreement, the Muslim couple are at the mercy of the courts, who may decide that the contract is not a valid prenuptial agreement, or that it contains provisions contrary to "public policy". This puts women in a difficult position. The mahr is theirs by right once the marriage is consummated, but they may be denied it because it is treated as a sort of divorce provision. A Muslim woman in America is taking a gamble in agreeing to postpone the mahr until divorce. Muslim Marriage Contract in American Courts discusses these and related issues. I searched state case law with Lexis and found several cases concerning the mahr. In Aziz v. Aziz, 127 Misc. 2d 1013 (1985), the Supreme Court of New York for Queens County upheld the mahr provision, stating that the Muslim marriage contract was valid. This opinion also discusses why the courts have the power to enforce secular provisions in contracts, even if the contracts are entered into as part of a religious ceremony. In Akileh v. Elchahal, 666 So. 2d 246 (1996), the Court of Appeal of Florida overturned a lower court decision and upheld a mahr provision. However, in In re Marriage of Dajani, 204 Cal. App. 3d 1387 (1988), a California appellate court declared the Muslim marriage contract invalid as a prenuptial agreement and did not enforce the mahr provision. A recent ruling from New Jersey suggests a new approach, which will be discussed in the next blog entry, inshallah.

about the mahr or Islamic dower

One of the requirements of marriage under Islamic law is that the man gives the woman a dower, a gift of money. The dower is usually called mahr although other terms are used as well, particularly sadaq or saduq. The mahr is the woman's separate and exclusive property and cannot be touched by her husband at any time during the marriage without her express consent. It remains her property in the event of divorce or death of the husband. The woman's right to the mahr is created when she and the man sign a marriage contract and is perfected after the marriage is consummated. If the couple divorce before consummation and the mahr has not been given, it does not need to be given (Quran 2:236). However, if the couple divorce before consummation and the mahr has been given, the woman is entitled to half (Quran 2:237). Once the marriage is consummated, the mahr becomes the woman's exclusive property (Quran 4:4). To the best of my knowledge, although it is not a requirement of Islamic law, the custom has developed in many Muslim cultures that the mahr is divided into two parts, the prompt and the postponed. The prompt mahr is given at the time that the marriage contract is signed. It is usually a token amount (e.g., $1). The postponed mahr will be given later. The custom is that the couple agree that the postponed mahr will become due if the couple divorce. Very often, the postponed mahr is a substantial amount (e.g., $50,000). The idea is that the man will be reluctant to divorce when he has to pay all this money. Since the husband is obligated to provide complete financial support for his wife during the marriage, she has no need of the mahr during that time. Instead, it serves as security for her after the divorce. It should be kept in mind, however, that the mahr can only be postponed to divorce by the consent and agreement of the woman. If she chooses to demand the full mahr after the marriage is consummated, she may do so. It is her right. The Mahr provides a brief overview of what Islamic law says about the mahr.

Supreme Court says it doesn't matter if driving is a privilege not a right, and other notes

I've been continuing to do some legal research, just to see this question through and because my love of legal research is why I'm studying to become a paralegal. I mentioned in an earlier entry that there were two other cases "on point", meaning that they deal directly with the issue of non-photo driver's licenses and religious exemptions. The first case is Bureau of Motor Vehicles of The State of Indiana v. Pentecostal House of Prayer, Inc, 269 Ind. 361 (1978). This is actually the earliest case on the issue that I've found. Like the other cases, it deals with a Christian who believed that photographs were graven images and didn't want a photo driver's license. The Indiana Supreme Court upheld this right. One point is particularly interesting. The argument of those who oppose religious exemptions is that driving is a privilege, not a right. The Indiana Supreme Court responded to this issue: The gist of this argument is that there is no "right" to drive in this state, rather, driving is merely a privilege. In other words, the state's position is that no First Amendment problem is raised where a citizen's free exercise right is brought into conflict with a mere privilege. This position was considered and expressly rejected by the United States Supreme Court in Sherbert v. Verner: "Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege" Thus the trial court correctly found coercive state action in that the photograph requirement of the statute would operate to deny these appellees the ability to drive, regardless of whether this ability is characterized as a right or privilege House of Prayer, supra at 368 (citations omitted, emphasis added) I thought that was really interesting. The other case on point is Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986). Once again, the plaintiff was a Christian who objected to photographs on the ground that they were graven images. The Colorado district court found for the plaintiff and granted him a religious exemption. What's interesting about this case is that the first time the judge heard it, he found against the plaintiff. However, while the case was under appeal, the Jensen v. Quaring decision came out. The court of appeals therefore reversed the judge's original decision and remanded the case (sent it back to be re-heard). This time the judge found no difference between his case and Jensen. Therefore he found in favor of the plaintiff. In his decision, he discusses his change of position in a candid manner. I had run a check of cases that cite Jensen and looked up those that were decided after 1990. Only one of these was related to photo identification. This is In re Miller, 252 A.D.2d 156 (N.Y. App. Div. 4th Dep't 1998). In this case it involved a law requiring pistol permit licenses to have photographs on them. The plaintiff was Amish (a very conservative Christian group) and like all the other plaintiffs, he objected to the photograph as a graven image (apparently many of the people who get so overheated about Sultana Freeman don't realize that all of the cases brought so far on this topic are about Christians not Muslims). The New York court found against the plaintiff and said that he had to have a photograph on his pistol permit even if it went against his religion. The court closely followed Smith. The interesting point is that the court expressly distinguished between driver's licenses and pistol permits and said that its ruling only applied to pistol permits and therefore was not in conflict with the three driver's license cases. This was because the state's interest in regulating firearms is greater than its interest in regulating the operation of motor vehicles. The court said: Although the governmental interest in requiring photographs on a driver's license for identification purposes is not compelling enough to justify the burden placed on the driver's exercise of religious beliefs, the compelling governmental interest in enforcing criminal laws that involve both the possession and use of firearms and public safety by immediate photographic identification justifies the burden placed upon petitioner's exercise of religious beliefs Miller, supra at 159, 160 (citations omitted). So to the best of my knowledge no lower court has attempted to over-rule the right to take a religious exemption and get a non-photo driver's license. The only court that has looked at a related issue expressly declined to re-visit the issue of non-photo driver's licenses. We'll have to wait and see if Florida will take that step. Added: Law professor Eugene Volokh has some comments on the right versus privilege question.

the current state of the law in regard to non-photo driver's licenses

Here's some more information I found. In Veiled Threat (written last year), Jacob Sullum says that under the standard that the Supreme Court used up until 1990, Freeman would probably be able to get a non-photo driver's license under a religious exemption. However, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court adopted a new standard which favored government interests over religious exercise to a much greater degree than before. Sullum feels that under the Smith standard, Freeman would be out of luck. In blog entry on legal issues, I mentioned an Alabama case about people who believe that social security numbers are the "Mark of the Beast". This case is from 1998 and therefore the plaintiffs have to get around Smith. One of the ways that they do so is to allege that the plaintiffs' rights to free speech are also being limited. They say that in cases involving multiple Constitutional rights, the stricter standard against the government should be used. The latest development in Freeman's case is that a judge allowed Freeman to proceed with her freedom of religion and due process claims but dismissed her privacy and free speech claims. The due process claim, as set out in her original filing, is that she was deprived of her driver's license without a hearing. The rejection of the privacy and free speech claims may be fatal to Freeman's case, based on what I wrote above. Incidentally, I also found a brief by the Maryland Attorney General (PDF) from 1994 in which the AG argued that Maryland citizens do not have a right to get non-photo driver's licenses under a religious exemption. The brief relies heavily on Smith but makes other arguments to distinguish the case from the 1985 case that I first mentioned. The two other cases directly on point are Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986), and Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc, 380 N.E.2d 1225 (Ind. 1978). Both cases found the right to a non-photo driver's license under religious exemption. However, both were before the Smith decision. So the question is really open at this point. Jensen v. Quaring (the 1985 case) has not specifically been over-ruled but changes in the law (i.e., the Smith decision) mean that lower courts can and have argued that they are no longer bound by Jensen. Right now, Freeman is just at the beginning of her journey through the court system. She is appealing the decision of the licensing department to a trial court in Florida, the Ninth Judicial Circuit Court in Orange County. I think that she will probably get a trial, because of her due process claim. She should not be stripped of her driver's license without due process of law and there was none. In her trial, she will argue that her license was wrongfully revoked in violation of her Constitutional right to free exercise of religion. The court may decide for her and order Florida to restore her driver's license, possibly in a non-photo form, or it may decide against her. Either way, there will probably be an appeal, assuming that Freeman really cares a lot about this. Her current claim rests on her right to freedom of religion in the Florida state constitution, but she could if necessary allege that her rights under the federal constitution are also being violated. So this case could eventually go to the Supreme Court. However, it's a long, long way from that. Although I think that Freeman's beliefs are wrong-headed, I think it's probably a good thing that she brought this lawsuit because it could help clarify what the law is.

on religious exercise issues, it doesn't matter if she's the only one that believes that

According to the majority of Islamic scholars, a woman is required to cover everything but her face and her hands. A minority of Islamic scholars hold that a woman is required to cover everything but her eyes. However, nearly all of these scholars permit a woman to uncover her face so that her identity can be verified. There's a link in the original blog entry about Freeman about this. I personally do not believe that the face veil is obligatory. I wear it out of choice. Even if I did believe it to be obligatory, the school of thought that I follow would permit me to unveil for identification purposes. Thus, all my photo ID shows my face and I have no problems with being asked to uncover my face so it can be matched against the ID card. I think that Sultana Freeman is being stupid to want to wear a face veil for a photo ID. But I also don't think that she should have her license revoked for that reason and be unable to drive. That's what Florida did. I think that Florida should allow Freeman to take a religious exemption and be able to get a non-photo driver's license. This option is available in Illinois and apparently some other states as well, though I haven't found documentation yet on them. The Supreme Court case that I mentioned in the legal issues entry makes it clear that people are permitted to take a religious exemption and get non-photo driver's licenses. There's something that I don't know if a lot of people understand. It doesn't matter whether Freeman is the only person in the world who holds that religious belief or if every Muslim does so. The Supreme Court is not, and should not, be in the position of determining what the "correct" positions of a religion are. If it did so, it would be involved in "establishing that religion" by entangling the government in how the religion runs itself. It simply does not matter whether any other Muslim holds Freeman's beliefs. As long as she can present an argument that her beliefs are based in some way on her religion and that she holds them sincerely (which she clearly does), then that is her "religion" even if it is not the view of any other Muslim. Again, the Court is not going to decide which religious beliefs are valid and which ones are not. Once Freeman has proved that her ideas are based on her personal religious beliefs, then the court looks at whether the government has a compelling interest that justifies infringing on her exercise of her religion. In 1985, the Supreme Court agreed that the state's interest in photo driver's licenses is not compelling enough to override peoples' religions. The Supreme Court therefore said that the state (in that instance, Nebraska) had to allow the woman (in that instance, a Christian who believed photographs were graven images forbidden by her religion) to get a non-photo driver's license. As far as I know, that is still good law today. If the precedent from 1985 is still good law, then Florida will probably be required to let Freeman have a non-photo driver's license. Added: Law professor Eugene Volokh comments on this question.