What began as a clear First Amendment issue has exploded into a landmark case regarding the status of Islam as a political entity. Last Thursday the Detroit Transit Authority (SMART), a government entity, argued before the 6th Circuit Court of Appeals that my organization's "Leaving Islam?" ad was political because Islam is political. At least two of the three judges seemed to go along.
If the court rules against us, it will be ruling that Islam is political and that Shariah is a political program – something other government agencies have strenuously denied. If that happens, will Islam and Shariah deserve the protection of a religion?
The case was argued before 6th Circuit Court of Appeals Judges Raymond Kethledge, John Marshall Rogers and Algenon L. Marbley. Chris Hildebrand, the lawyer for Detroit SMART, began by referring to and basing his whole argument on our recent victory over the New York City Metropolitan Transit Authority in another First Amendment case about a completely different ad (a pro-Israel ad). Hildebrand argued that the judge in that case, Paul Engelmayer, had said that that ad was political, and thus that the MTA had to accept it in accord with their guidelines. Hildebrand asserted that our "Leaving Islam?" bus ad, which Detroit SMART rejected, was also political and thus was rightly rejected by SMART, which (in contrast to the MTA) does not take political ads. His client, said Hildebrand, does not reject ads because they're provocative (as he claimed that ours was), or controversial, but because they're political, and SMART does not and will not take political positions.
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Judge Rogers then told him that he had gotten SMART into a "blurry area" by making a distinction between the political and religious. Hildebrand countered that while the ad may be anti-Islam, anti-Muslim and anti-Shariah (actually it was designed wholly and solely to offer help to people whose lives were threatened), it was also political. Judge Marbley then pointed out that an imam, who would issue a fatwa (referring to the part of our ad that asked, "Is your family threatening you? Is there a fatwa on your head?") was not an elected official.
Hildebrand then dropped the bomb that has extraordinary implications for the debate about anti-Shariah laws and the status of Islam in the United States: He said that yes, imams have a religious function, but they also "control Shariah law," and Shariah is political. Marbley said that that might be so in Iran, but not in Detroit, where they had a purely religious function. Hildebrand then dug in even deeper, saying that imams in Dearborn deal with Shariah on both a religious and political basis. When Marbley then asked him how our ad was different from one SMART accepted from an atheist group, calling on people to become atheists, Hildebrand said that it differed because Islam is not only religious, but also a "political series of laws." Marbley then pointed out that the same thing could be said about the Catholic Church, since the Vatican was a political entity, and that could be used to rule out advertising from Catholic groups. Hildebrand then argued that our ad was both religious and political, and that the reference to a fatwa made it primarily political and not religious – which would only be true if Shariah itself is primarily political and not religious.
Judge Kethledge seemed to go along with this argument, telling our own lawyer, Robert Muise (who ably argued for our side), that Shariah is "arguably" political as well as religious. Judge Rogers then outrageously compared our ad to an ad repeating a vile and disgusting blood libel against the Jews as part of Jewish law (which it most certainly is not, but the death penalty for apostasy most certainly is part of the Shariah) – showing the truth of his and Marbley's admission that they knew next to nothing about Islam (or Jewish law). Clearly, they were unaware of Islam's death penalty for apostasy. If they did, they would never have said that our public-service ad constituted "scorn and ridicule."
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Kethledge clearly had his mind made up already, getting testy with Muise and helping Hildebrand with his case, inviting him when he returned to the stand to explain why our ad – designed to save lives – constituted "scorn and ridicule" of Muslims and thus was also disallowed on those grounds according to SMART's guidelines. This entangled SMART in a self-contradiction: Hildebrand said that they didn't disallow our ad because it was "controversial" but also that our ad constituted "scorn and ridicule" – but none of the judges seemed to notice and certainly no one challenged Hildebrand on this. Hildebrand did not, and could not, explain why our ad constituted scorn and ridicule, and instead simply kept asserting that it did. He did not argue his case persuasively, but with Kethledge and also Rogers so clearly on his side, he had a clear advantage.
If SMART wins, however, the implications for the status of Islam and Shariah as political will be enormous. Incalculable. SMART may end up winning the battle for Shariah in the U.S., but losing the war.