I spoke last week at a conference at Cardozo Law School, where we celebrated the twentieth anniversary of the Supreme Court's leading case on the Free Exercise Clause, Employment Division v. Smith. Many religious believers have been critical of its holding that religious believers must follow the law. The following case from New Jersey, which was decided earlier this year, explains why Smith is good law.
S.D. filed for a restraining order against her husband in New Jersey because he had beaten her and forced her to have sexual intercourse against her will due to his dissatisfaction with her inability to cook acceptable meals for his houseguests. The couple was wed in an arranged marriage in Morocco in July 2008, when the bride was seventeen years old, and moved to New Jersey in August. On November 1, M.J.R. asked his wife to prepare three special meals for guests the next morning. Although S.D. arose at 5 to prepare breakfast, she was unsuccessful in cooking the three dishes, and there was no food when the guests arrived at 8. At 10, after the guests had left the house, M.J.R. entered S.D.’s room, told her he was going to punish her for her behavior, and pinched her flesh repeatedly for over an hour, leaving bruises on her flesh.
A similar incident occurred two weeks later, after M.J.R. asked his mother to prepare a dinner for guests because S.D. could not cook. After the dinner guests left, the husband took off his wife’s clothes, forcefully pinched her genital area and other parts of her body, locked her in the bedroom, and had sexual intercourse with her without her consent. A third episode of nonconsensual sex occurred a week later, and M.J.R. beat S.D. until she was able to escape through an open window. In all three instances, M.J.R. told S.D. that he was punishing her for her failures as a housewife.
Although proceedings for a restraining order commenced after the November events, the couple reconciled after S.D. discovered she was pregnant. On the first night of their reconciliation, however, and for several days thereafter, S.D. was forced to engage in nonconsensual sex. S.D. testified that M.J.R. always told her, “this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.”
S.D. filed for a restraining order and criminal charges were brought against M.J.R. At the hearing the couple’s imam, in response to the judge’s questions, testified that under Islamic law, “a wife must comply with her husband's sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife ‘like any animal.’ The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said ‘no.’”
The trial judge ruled that criminal restraint, sexual assault and criminal sexual contact were not established under New Jersey’s domestic violence laws because the husband lacked criminal intent. Criminal intent was absent, the judge ruled, because M.J.R. “was operating under his [Muslim] 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.” Because of the husband’s religious beliefs, therefore, the judge “found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff's contrary wishes.”
In this “clash” between religious custom and law, the trial court, twenty years after Smith was decided, favored the husband’s religious freedom over the wife’s legal rights not to be raped or assaulted under criminal law. The judge also denied the request for a temporary restraining order, commenting that November was a “‘bad patch’ in the parties' marriage and plaintiff's injuries were ‘not severe.’”
Fortunately, the law of free exercise is Smith, and an appellate court reversed that ruling. According to the appeals court, criminal intent is established under the domestic violence statutes by “knowing” conduct. “Defendant's conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.”