Church & State — Is There Really a Separation?

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(Illustrative photo: Flickr/Ben McLeod)
(Illustrative photo: Flickr/Ben McLeod)


Separation of church and state is a much-touted, constitutionally-guaranteed principle on which America was built.

But was it? Upon closer examination, one finds that the line of the law is not so clear.

These fuzzy lines can make adjudicating on current issues where sharia (Islamic) law and American law are at odds not only difficult, but extremely controversial.

As more and cases are brought to U.S. courts that address the religious beliefs of Muslims, it is worth looking at this foundational principle of U.S. law.

Here are some recent and interesting cases involving the clash between lslamic principles and U.S. law involving cases of employee rights, inheritance and spousal abuse.



The actual words “separation of church and state” do not appear in the constitution. Rather, they represent a general principle – one could say, an interpretation – of the famous “Establishment Clause” of the First Amendment which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

That same amendment ensures there is no prohibition on the free exercise of one’s religion.

Court rulings enforced this clause both in a strict and relaxed manner – as well in ways that appear contradictory.

Just one example worth noting of the incongruity of American courts stems from 1962, when the Supreme Court banned public prayer and religious readings in public schools. However, the court did allow private prayer — meaning teachers, students and other faculty members could pray in school privately but not lead prayers in class or assemblies. Interestingly, the ban on private prayer also included non-sectarian prayers that simply mention a Divine Being.

Thus, a prayer which was required to be recited in New York public schools after the Pledge of Allegiance to the flag and invoked an “Almighty God” was banned. Yet the phrase found in the pledge itself, “one nation, under God,” was left standing.

In 2002, a U.S. appeals court ruled that a California law requiring the voluntary recitation of the pledge in public schools was unconstitutional because of the mention of God. The ruling prompted Senate to pass a bill in favor of the words and the House followed by condemning the ruling. An appeal to the Supreme Court was thrown out on a technicality.

With that muddle of a non-answer on just one of the many cases that come up in U.S. courts on the subject of separation of church and state, let’s look at a few others involving Muslim practices and U.S. law and see how the courts have ruled:


Is there a right to be legally excused from doing your job for religious reasons in the U.S.? The answer to this question is not a blanket yes or no. One’s constitutional right to practice one’s religion actually depends on whether or not the request was deemed reasonable for the employer to accommodate.

This was the main question in the case of two Muslim truck drivers who were fired for refusing to drive shipments of alcohol in their vehicles. (Islamic law forbids Muslims from handling alcoholic beverages.)

The drivers claimed they were discriminated against because of their religion. Since the company had often swapped loads between drivers in the past, the court ruled that in this case, he company could easily have done the same without “undue hardship” to other employees or the employer itself. Thus, the request fell under the purview of a “reasonable accommodation” and the drivers won the case.

Contrast that to the case of a Muslim worker in a ham processing plant. The worker originally had a job where he was not required to touch pork directly, again something forbidden in Islam. However, his poor performance at the job caused his employer to relocate him to a different job in the plant where he could be supervised more closely. His new job required him to come into direct contact with pork.

When the worker brought a discrimination suit against the employer, the court ruled against him saying that accommodating him would cause undue hardship to his employer. The court noted the request of the worker to be the only person at a ham processing plant not required to touch the plant’s product was unreasonable.


A Minnesota court of appeals ruled against a Sudanese man who tried to argue the inheritance from his late brother’s estate should be split according to sharia law, since the brother and his wife were married under Islamic law in Sudan.

Interestingly, the U.S. does use law from other countries in specific cases, for example, to determine whether or not a foreign couple entering into the U.S. are to be considered legally married. Since this couple was married according to sharia law – the law of the land in Sudan, they were considered legally married in the U.S.

The case involved the man’s brother who was a taxi driver and resident of Minnesota and killed in an accident. The taxi driver’s estate was awarded a sizeable amount of money from a wrongful death suit. According to Minnesota law, the money was to be paid to his surviving spouse and next of kin (because of the financial loss they suffered because of the death).

Yet, according to sharia law in Sudan, only 25 percent of the money would be awarded to the widow. With the exception of a percentage that would go to the man’s mother’s estate, the rest would be given to the siblings of the deceased – with the brothers receiving two times more than the sisters.

The court disagreed, ruling that American courts apply American law – not Sudanese Islamic law.

Yet, in other cases, most notably custody and divorce battles involving Muslim supplicants who were not permanent residents or citizens of the U.S., American courts upheld the rulings of foreign sharia courts much to the detriment of women, some of whom fled to the U.S. following abuse.

In these cases, the fathers were given custody of their children, as per sharia law.


One of the most disturbing cases to date involves the decision by a New Jersey judge not to grant a restraining order to a woman who was sexually abused by her Muslim husband.

The couple ended up divorcing after which the woman petitioned the court for a restraining order. In ruling against her, the judge said her husband was acting according to his Muslim beliefs, saying, “[The wife] testified that [her husband] always told her, ‘this is according to our religion. You are my wife, I [can] do anything to you. The woman, she should submit and do anything I ask her to do.’”

Even though the judge acknowledged that there was ample evidence that even after the divorce, the husband had harassed and insulted his ex-wife, “The court believes that [the husband] 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.”

During the hearing, the court consulted an imam. Notes from the case state, “The imam testified regarding Islamic law as it relates to sexual behavior. The imam confirmed that a wife must comply with her husband’s sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere.”

The ruling was issued despite the fact that according to New Jersey law, coerced sex between a married couple is considered rape.

The ruling was overturned by an appeals court which stated the man’s religious beliefs were irrelevant to the case and the judge was “mistaken” in taking them into account.



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America’s “Most Influential Muslim” Endorses Sharia Law


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Meira Svirsky

Meira Svirsky is the editor of ClarionProject.org

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