Is There a Religious Freedom Right to Join the Islamic State?

Recent news headlines in the United States have featured stories of young people intercepted by the authorities in attempts to run off and join the Islamic State.  Earlier this month, there was the story of the “jihadi honeymooners”–a photogenic young couple composed of Jaelyn Young, a 19-year-old African American woman, who had been a high-school cheerleader and aspired to become a doctor, and Muhammad Dakhlalla, a 22-year-old man of Palestinian descent who had been planning to begin graduate studies in psychology. In emails communication with FBI agents posing as Islamic State recruiters, collected in the criminal complaint currently before a federal district court, Young proclaimed, “I cannot wait to get to Dawlah so I can be amongst my brothers and sisters under the protection of Allah and to raise little Dawlah cubs In sha Allah.”

A month before, in July 2015, the son of a Boston police captain was arrested in western Massachusetts for a plot to commit several bombings at colleges and other venues.  The 23-year-old man was said to have have long-standing problems with mental illness, but also to have become obsessed with the Islamic State and to have expressed a desire to go and fight there. In April 2015, a 20-year-old woman from Alabama successfully joined the Islamic State in Syria. In October 2014, it was reported that U.S. federal agents in Germany had intercepted three teenage girls from Denver, two of Somali descent and one of Sudanese descent, who had taken their passports and $2,000 and had flown to Europe en route to the Islamic State. One of the girls was said to have been “inspired” to join the Islamic State and managed to persuade the other two to come along.

In my travels earlier this summer, I had the opportunity to present a paper on “religion as identity,” or what I am calling Religion 3.0 at the annual meeting of the Law and Society Association in Seattle. The name “Religion 3.0” is intended to capture new manifestations of religion that we are seeking that go beyond the Religion 1.0 of traditional religion, with its emphasis on the standard markers of Creed, Cult, Code, and Canon, beyond even the Religion 2.0 of lived religion, based on ritual, practice, community, and relationship, which has been the focus of religion studies of late.

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Several features of Religion 3.0 seem relevant to these recent news items about would-be Islamic State jihadis.  (1) Community–These individuals may seem to be “lone wolves” (or wolf packs), but their desire to join the Islamic State shows a profound concern for belonging and community. (2) Choice--Their decisions reflect the growing tendency for religion, especially in the U.S., to be construed as a matter of personal choice, often unhinged from family tradition or local community–religious conversion, or “religious switching” being a manifestation of this effect. (3) Aspiration–These individuals, even when mentally healthy, often have big dreams for the achievement not merely of material or social success but for personal meaning that are thwarted in some sense by their perceptions of their social surroundings (e.g. racism, inequality, anti-immigrant sentiment)–and the gap between expectation and reality is one that they seek to traverse in joining these movements. (4) Transnational–As one recent study of European jihadis put it, these individuals “turn first global, then violent.” (5) Identity–These individuals’ question for meaning and belonging leads them to seek out transnational groups like the Islamic State–they global, and then they go local, melding their aspirations with their identities at as a matter of personal conviction.

For my Seattle presentation, I was prompted to return to the story of a jihadi who fueled my own interest in this phenomenon. The story is that of Umar Farouk Abdulmutallab, better known as the “Underwear Bomber” who attempted to blow up a plane en route to Detroit on Christmas Day 2009.  Raised in a Muslim home and the son of a wealthy banker and businessmen, Abdulmutallab experienced a teenage deepening of faith that led him to raise questions about his father’s wealth and business dealings. Though his father tried several times to report his religious radicalization to authorities, including U.S. authorities, Abdulmutallab’s religious beliefs eventually drove him into the hands of Al Qaeda, who recruited him for a suicide mission.

Abudulmutallab’s religious beliefs eventually got an airing in a notable venue–the United States District Court for the Eastern District of Michigan.  There, Abdulmutallab proclaimed that he was “proud to kill in the name of God.” Judge Nancy Edmunds largely accepted the prosecutors’ portrayal of Abdulmutallab as a cold-blooded killer, observing, in handing down a sentence of four life sentences plus 50 years:

The defendant has never expressed doubt or remorse about his mission, To the contrary, he sees that mission as divinely inspired and a continuing mission.

On appeal, the Sixth Circuit Court of Appeals denied a mental incompetence motion from Abdulmutallab’s attorney stating:

The actions show the deliberate, conscious and complicated path Abdulmutallab chose to pursue in the name of martyrdom. . . . Abdulmutallab not only acted rationally, but was nearly able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.

Of Abdulmutallab’s religious beliefs, the Sixth Circuit held:

Abdulmutallab argues in his reply brief that other actions indicated that he was not competent to stand trial. Abdulmutallab argues that his demeanor at trial was not “normal and respectful,” and cites a portion of the sentencing hearing where he shouted “Allahu Akbar” or “God is great” a few times. However, as other courts have had defendants who shout religious incantations in court and found them to be competent, we hold that Abdulmutallab’s shouting “Allahu Akbar” signifies only his religious beliefs and is not indicative of his incompetency.

Abdulmutallab’s religious beliefs were not enough to save him–but his actions based on those beliefs were plenty enough to put him away.

With this in mind the deliberately provocative question that I left to my Seattle audience, from my perch as someone who studies law and religion, particularly religious freedom, was whether we would see religious freedom claims invoked by individuals seeking to join the Islamic State.  In other words: Is there a religious freedom right to join the Islamic State?

It turns out that this is not merely an academic question.  There are currently more than 60 pending cases in the U.S. against Islamic State sympathizers and would-be jihadis, most of whom have been charged with providing material support the Islamic State. Lawyers for Mohammed Hamzah Khan, a suburban Chicago teen arrested at O’Hare Airport while trying to travel to Islamic State with his two younger siblings, have religious freedom claims under the First Amendment and the Religious Freedom Restoration Act (RFRA).

In a motion filed at court, the teen’s lawyers, Thomas Anthony Durkin argued:

While it is easy to disagree with Mr. Khan’s unpopular religious beliefs and label them misguided simplistic, or even fundamentalist, it cannot be said that [they] were not sincerely held — and that is all that must be shown.

Khan’s lawyers have argued that statements that a letter to his parents stating his desire to “emigrate” to the “Islamic State” should be construed as an expressions of religious freedom, not as reflective of an intent to aid the terrorist group. (For their part the parents say that their son was “brainwashed.”)

On the likelihood of Khan prevailing with his religious freedom claim, Sara Jones of American United for Separation of Church and state has written:

The U.S. Supreme Court won’t accept that argument. Lower courts probably won’t accept that argument, either. Americans simply do not have a First Amendment right to join organizations that threaten our national security. It is the very definition of a governmental “compelling interest” to prevent them from doing so.

At the same time, Jones points out the wider legal context  surrounding religious freedom in the wake of the Supreme Court’s Hobby Lobby decision:

It’s unlikely he would have enlisted RFRA in his client’s defense if the Supreme Court hadn’t ruled as it did in Hobby Lobby v. Burwell last year. In a 5-4 decision, the high court broadened RFRA’s reach, which led directly to more generous accommodations for religious practices. . . .

That decision did not, of course, eliminate the government’s right to prove that it has a compelling interest to restrict certain forms of religious expression. But it did weaken that right by privileging religious expression over the enforcement of certain laws.

Jones argues that the notable deference that the Supreme Court gave to the religious beliefs of the Hobby Lobby owners in that case may have elevated the “sincerely held religious beliefs” test in a way that may embolden other religious freedom claimants.

There has been much back-and-forthing in attempts to understand the phenomenon of the Islamic State. Is it Muslim, or is it a perversion of Islam?  Is it a “religion”, or is it “brainwashing”? Is it a terrorist group, or a de facto state? Though some decry the definition of religion by the courts, with more than 60 pending cases before U.S. courts, the law seems to be a likely venue in which these questions about the Islamic State may be answered.

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