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BLACK MUSLIMS AND THE LAW – Book Sample

Introduction – BLACK MUSLIMS AND THE LAW

In 1942, Elijah Muhammad, leader of what became perhaps the most influential African American religious community in the twentieth century, went to prison for failing to register for the military draft. Almost thirty years later, in 1971, the U.S. Supreme Court overturned a lower court ruling that found Muhammad Ali, professional boxer and longtime member—albeit sus- pended—of Elijah Muhammad’s religious community, guilty of having violated the Selective Service Act on essentially the same grounds. What took place within those three decades that would cause such a legal turn of events? More importantly, how could Muhammad Ali’s public image have emerged from its encounter with American courts as a paradigm for non-violence and moral sacrifice, while Elijah Muhammad’s humanistic assumptions about the nature and role of war in the world have gone largely ignored?

More than any other period in American history, the 1950s, 1960s, and 1970s represent what I have always termed the inaugural moment of African American free speech. After centuries of enduring the hardships and terrors of enslavement, peonage, lynching, race riots, political disenfranchisement, economic embargo, police brutality and daily insults, African Americans began to speak and give voice to long dormant thoughts and feels on a vast array of issues and concerns without the need for masks or middlemen.

It was a time when African Americans from across the political spectrum began to question the moral legitimacy of both black and white authority—a time when the words “pigs,” “devils,” and “toms,” were uttered with ever-greater frequency. More than anything, however, this new expressive posture emerged as a result of a tendency toward African American self-definition, a process whereby a people establishes its own standards and criteria for existing in the world. This notion of expanded freedoms and determined self-definition during the Civil Rights and Black Power Movements sits at the heart of this work.

It seems obvious that religion and the role of God in human affairs emerged as one of the many concerns that African Americans sought to clarify and redefine according to their own historic realities and contemporary interests. Although the Lost Found Nation of Islam (NOI), under the leadership of Elijah Muhammad, joined other groups in bringing these concerns to the forefront of public debate within African American communities, its unique history and legal journey raises the most poignant questions as to whether or not African Americans enjoyed religious freedom and the right to define god and morality on their own terms at the height of the Civil Rights Movement.

This work chronicles the evolution of the Lost-Found Nation of Islam’s strategy to defend its members’ civil liberties and rights to the enjoyment of the free exercise of religion. Intellectually located within the critical race scholarship of A. Leon Higgonbotham’s classic works on American slavery jurisprudence, it examines the NOI’s quest for civil liberties as a direct and sustained challenge to the suppression of African American religious freedom as a matter of law and social practice. Notwithstanding the consistency and the common expression of their worship styles, ritual observances and religious practice, Nation of Islam members confronted structural racism and a common understanding of what it meant to be African American and religious (in this case Muslim) shared by judges, lawyers, legislators, ministers, and contemporary civil rights activists. This shared interpretation of civil liberties at it related to the religious nature and freedoms of Nation of Islam members is apparent in the court opinions, legal statutes, police actions, and social commentary of the period. At different times and in different spaces, this common understanding resulted in the collusion of federal, state, and African American civic interests to deny Nation of Islam members such fundamentally guaranteed liberties as the rights to free speech, freedom of assembly, freedom of the press—indeed, the legal substructure that supports the free exercise of a group’s religion.

Contemporary narratives examining the Nation of Islam (NOI) have suggested that African American disillusionment with the pace and gains of the Civil Rights Movement led to the development of nationalist sentiment among African Americans. According to this analysis, African Americans, thus disillusioned, found solace in groups such as the Nation of Islam, which were supposedly unconcerned with the development of civil rights in Ameri- ca. At best, these studies tend to omit any mention of the Nation of Islam in discussing the evolution of civil rights and liberties in American society; at worst, they have positioned the NOI as fundamentally opposed to the basic objectives of civil rights groups at the time.(( Saadi A. Simawe, “Islam in the Civil Rights Movement” in Engines of the Black Power Movement: Essays on the Influence of Civil Rights Actions, Arts, and Islam, ed. James L. Conyers, Jr. (Jefferson: McFarland & Company, Inc., Publishers, 2007), 201))

Yet, as Muhammad Ali’s petition for conscientious objector status before the U.S. Supreme Court suggests, the Nation of Islam did attempt to secure religious freedoms for its members. Although Ali’s success in court was in some ways a major legal victory in a long tradition of protest for the religious freedoms of NOI members, efforts by NOI members to defend their civil liberties and civil rights proved to be far more expansive than just conscientious objection to military service. NOI members petitioned courts for federal observance of their religious rights to religious literature and spiritual advisors as imprisoned Muslims, to freedom of assembly, and to protection from unwarranted seizures of their religious property.

This study identifies the strategic initiatives launched by the Nation of Islam to defend and advance the civil rights and liberties of its members from 1930 to 1971. Moreover, the study locates the critical period during which the Nation of Islam’s struggle for civil rights emerged. What is necessary, then, is a statement describing the confluence of these two principal objectives.

I contend that the Nation of Islam’s efforts to defend the rights and freedoms of its members became a self-conscious and self-determined struggle for civil rights and liberties upon its acquisition of competent and professionally responsible legal counsel, such as Edward W. Jacko Jr., and its development of Muhammad Speaks in the late 1950s and early 1960s. Prior to the emergence of Jacko, who became the NOI’s chief legal counsel, and the establishment of Muhammad Speaks, the NOI civil liberties problems and encounters with the justice system were marked by an avoidance of coalition building with African American civil rights organizations, an avoidance or uncritical assessment of legal counsel, and individual retreats to martyrdom as personal demonstrations of religious faith.

There are several broad and interrelated questions raised by this study. How, for example, does twentieth century American history attempt to understand a struggle for civil liberties led by an African American religious group that emphasized social and racial separation while simultaneously shunning electoral politics? Also, how did NOI members locate themselves within a movement largely defined by groups and organizations whose principal objectives were directed at achieving social integration in American society?

How does the NOI’s struggle for social justice inform the historical canon of the Civil Rights Movement? In a democracy of competing interests, what struggles are morally and socially legitimate? More specifically, among African American civic groups, who determines which interests or civil rights concerns merit value and which do not? In a general sense, the idea that divergent African American socio-political figures and organizations that alternatively desired integration into and separation from American society could simultaneously pursue social justice concerns is a major contribution of this study.

To understand the depth of the NOI’s legal contributions to civil rights gains in America, the study places a heavy emphasis on the use of court records and legal opinions issued by court justices that detailed various legal questions and issues being raised by NOI members. The strength of such an approach is evident in its ability to demonstrate how the NOI’s legal struggles created a social space for African American Muslims to practice their faith by challenging the disparate treatment its members received as opposed to practitioners of other religious faiths. The courts became a primary site within which the NOI sought to advance its civil rights initiatives.

On the other hand, such a method is not by itself a reliable indicator of how the NOI’s struggle for agency and civil rights manifested itself outside of the courtroom. For this reason, the research design also examines news- paper articles in Muhammad Speaks, the official newspaper of the NOI, and elsewhere to assess the NOI’s strategic initiatives to defend the civil rights and liberties of its members. Committed to helping bring “freedom, justice, and equality” to African Americans, the editorial staff of Muhammad Speaks proved a formidable resource in bringing the NOI’s civil rights efforts to the attention of African American communities. Unlike other sources, the assessment of newspaper articles in Muhammad Speaks, and elsewhere, permitted the evaluation of widespread NOI social justice initiatives over an extended period of time. This proved critical to discerning the NOI’s “strategic” initiatives to protect the civil rights and liberties of its members.

At the same time, the Federal Bureau of Investigation’s (FBI) intelligence files on Malcolm X, Elijah Muhammad, and the Nation of Islam provided invaluable insight into critical decisions and initiatives made by key NOI officials seeking to stave off government led challenges to the religious com- munity. Being a federal agency, it was, perhaps, intuitive for the FBI to approach its investigation of the NOI and its members from a systemic basis. Although heavily weighted to produce certain political objectives and justify various law enforcement actions, these files, too, were germane in helping to discern the NOI’s strategic initiatives to defend its member’s civil rights and liberties.

By examining the NOI’s contribution to civil rights struggle in America through court records, FBI files, public speeches, oral histories, and other primary sources, this study does not take under consideration various cultural nuances between the NOI and civil rights organizations of the period that may account for dissimilar tactical strategies between these two groups. Specifically, a cursory ethnographic review of the NOI’s motifs, theology, and creation myths reveals that this religious group viewed African Americans as divine beings.2 Among other things, this meant that NOI members as well as others in society would have to come to terms with the dignity and sacred- ness of African American life—and, by extension, the African American body. On the question of police brutality in African American communities specifically, the NOI rejected the notion of passive resistance to acts of arbitrary and capricious violence against African American bodies as a strategy for gaining civil rights.

A special mention must be made of the late Dr. Winston Van Horne, whose concepts of legal and social legitimacy are applied here as a theoretical design to help guide and interpret the primary sources under investigation. Although Van Horne’s analysis attempts to understand violence, such as lynching, his concepts of legal and social legitimacy lend themselves to the interpretation of political and social struggles as well. According to Van Horne, events, facts or phenomena become permissible with any social system depending on the degree to which these things have attained legal and, or, social legitimacy.(( Van Horn actually has three interrelated concepts of legitimacy: legal legitimacy, moral legitimacy and social legitimacy. The concept of moral legitimacy is not included as a theoreti- cal guide within this study due to the methodological difficulty in assessing how the objections of a religious community achieve moral legitimacy. The most probably argument in this direction might conclude that the NOI’s quest for conscientious objector status achieved moral legitimacy during the national uproar over the military draft during the Vietnam War. See, Winston A. Van Horne, “Three Concepts of Legitimacy,” in Law, Culture & Africana Studies, Africana Studies, ed. James L. Conyers, Jr., no. 2 (New Brunswick: Transaction Publishers, 2008), 47))  

In helping to establish the legal precedent that allowed incarcerated NOI members to assemble and pray in prisons and receive ministers and published materials from their own religious community, Malcolm X and Edward W. Jacko, Jr., for example, contributed to the NOI’s legal legitimacy as a religious community. Likewise, Van Horne asserts that “Social legitimacy entails the shared norms, beliefs, and attitudes of a tribe, clan, racial/ethnic grouping, community . . . or society concerning the desirability, acceptability, and appropriateness of given behaviors and their outcomes.”(( Ibid., 51–52))

Thus, the NOI’s development of Muhammad Speaks as a public relations initiative speaks to its desire to help improve the group’s social legitimacy as a religious community in American society. The study is both chronological and thematic in its organization and presentation of events and ideas. The first chapter surveys the development of the Nation of Islam’s (NOI) ethno-religious ideology and ideas about civil rights within the context of Elijah Muhammad’s early life and the contemporary African American quest for civil rights in late nineteenth and early twentieth century America. Broadly speaking, the NOI did not prioritize the pursuit of civil rights or liberties in its early years.

In fact, the NOI argued that obtaining equal treatment under the law for African Americans was not a viable option and did not address the root causes of racial conflict in Ameri- ca. Instead, the NOI saw a critical need for Americans to respect the life and human dignity of African Americans as a prerequisite to discussing the possibility of African Americans acquiring civil rights, and viewed Islam as the path toward accomplishing that goal. Likewise, NOI members consistently petitioned their understanding of Islam as the ultimate source for guiding their behavior in society. Simply put, until statehood could be obtained, this view placed an emphasis on reforming the morality and ethics of African Americans as individuals instead of society as a whole.(( Christopher E. Smith, “Black Muslims and the Development of Prisoner Rights’,” Jour- nal of Black Studies 24, no. 2 (December 1993): 133))

Chapter 2 examines the NOI’s early, or proto determinist, efforts to defend the civil rights and liberties of its members. Whereas the NOI actively invoked its Islamic beliefs as a legal recourse to justifying its political and religious expression in American society, early attempts to defend the civil liberties of NOI members were characterized by a failure to develop strategic relationships with contemporary civil rights organizations, a lack of competently trained lawyers in civil liberties laws, and a tendency to result to physical confrontations to seek justice.

The chapter will demonstrate that between 1934 and 1938, the public perception of the NOI among African American civic leaders underwent frequent strain as accusations and revelations about NOI ritualistic killings filtered out into African American com- munities. These problems had the cumulative effect of neutralizing the NOI’s ability to defend the civil liberties of its members from an optimal legal or social position, that is, a position of power.

Chapter 3 looks at the role that NOI women played in providing a potential basis for both the social and legal recognition of the NOI as a legitimate religious community. While men might have controlled administrative posts within the NOI, they had little control over the organizational infrastructure that both dictated and contextualized the everyday religious experiences of women in the community. The chapter demonstrates that in the absence of a group of administrators who could deliver a consistent, coherent, and unified message on the NOI’s core values and identity, women became critical to the institutional sustainability and social legitimacy of the NOI during its initial period of instability (1934–1942).

Chapter 4 locates the emergence of the NOI’s self-conscious and self- determined struggle to defend the civil rights and liberties of its members within the context of its institutional and organizational expansion, and identifies critical developments that—although external—directly influenced the religious community’s legal legitimacy. On both an institutional and operational level, the NOI began to increase its membership by expanding the venues in which it sought to propagate its ethno-religious beliefs following World War II. Yet, there were also other developments that would have favorable consequences for the NOI.

For example, the chapter will show that by 1940, Charles H. Houston, the prolific legal scholar who provided the legal framework for dismantling segregation in public education, began to alter his objectives at Howard University’s School of Law to meet the evolving legal needs of African Americans. Most significantly, Houston reprioritized the discussion of civil liberties such as freedom of religion, speech, and assembly within his course on civil rights. The emergence and eventual retention of perceptively trained lawyers such as Edward W. Jacko, Jr., a former student in Houston’s revamped civil rights course, allowed the Nation of Islam to defend the religious beliefs of its members from a position of power.

Chapter 5 explores the NOI’s profound shift in both its strategic and tactical approach to defending and advancing the civil rights and liberties of its members. So long as the NOI confronted agencies stemming from the executive branch (e.g., the FBI, Federal Bureau of Prisons, local police) on its own and in a one-dimensional manner, it had remained in a relatively weak position in its ongoing encounters with law enforcement officials.

In opening up a second front in its struggle for civil rights and liberties by pursuing legal initiatives in the courts that questioned the constitutionality of the religious discrimination its members endured, the NOI placed itself in an empowered and more favorable position to protect the religious freedoms of its members. More specifically, the period between 1960 and 1965 witnessed incarcerated NOI members submit numerous legal petitions in an attempt to acquire religious freedom in prisons across the country. This historical initiative was critical to the NOI’s success in acquiring legitimacy as a legally valid religious community in American courts.

Chapter 6 demonstrates that leading officials in the NOI clearly recognized the impact that negative public relations and public perceptions of the group had on the legal rights of its members and took precautions to manage the group’s public image. To this end, the chapter explores the manner in which groups external to the NOI perceived and constructed the Nation as an irreligious, un-American, subversive and pro-communist political movement.

The evidence suggests that in spite of attempts by the media, academicians, government agencies, and national civil rights groups to portray the Nation as a “fringe,” or socially undesirable group, Muhammad Speaks became a consistent vehicle through which the NOI contested these assertions, de- fended the civil liberties of NOI members and defined the NOI as a socially legitimate religious community.

The seventh chapter explores Muhammad Ali’s legal battle to obtain conscientious objector status and a ministerial exemption from serving in the U.S. Armed Forces as being illustrative of key challenges in the NOI’s strategic initiatives to defend the civil rights and liberties of its members. From 1966 to 1971, Muhammad Ali’s resistance to the military draft came to symbolize, perhaps more than any other person or event at the time, the NOI’s evolving civil rights struggle.

His use of the courts to achieve justice represents a clear departure from earlier times when the experiences and teachings of the NOI suggested that concepts such as freedom, justice and equality could not be achieved in such forums. Likewise, as Muhammad Speaks had been critical to defending the NOI’s social legitimacy as a religious institution in previous years, the newspaper continued to support Ali through his travails with the Selective Service System. Yet, Ali appears to have been more of an exception to the general rule. By 1965, the NOI attempted to limit its exposure to government harassment by allowing other groups and leaders to take the initiative in expressing African American social frustrations at the time. The chapter suggests that the NOI’s failure to prioritize its collective civil rights and liberties concerns within ongoing discussions of African American self-determination resulted in a series of missed opportunities through which it might have advanced its legal and social legitimacy as a religious institution.

The study uses the term “ethno-religious” to refer to the NOI’s identification of itself as a nation-within-a-nation with distinct religious beliefs. Al- though the NOI’s belief system was extensive, a cursory analysis of NOI theology reveals that NOI members believed in a god named Allah, the revelations of Allah as revealed in the Holy Qur’an, the notion that Allah would seek divine judgment against the unjust and unfaithful, the notion that blacks were Allah’s chosen people, not participating in wars, and the social separation of whites and blacks((“The Muslim Program,” Muhammad Speaks, August 16, 1963, p. 24)).Also, C. Eric Lincoln and others have noted that NOI members principally viewed themselves as citizens of the Nation of Islam((C. Eric Lincoln, The Black Muslims in America, 3d ed. (Grand Rapids: Eerdmans Pub- lishing Co., 1994), 44; William L. Van Deburg, ed., Modern Black Nationalism: From Marcus Garvey to Louis Farrakhan (New York: New York University Press, 1997), 97)).

This sense of nationalism prioritized the formation of a collective consciousness or shared identity before any claim to a definitive area of land. Similarly, NOI members consistently cited their citizenship in the Nation of Islam as the principal rational behind the defense and articulation of their beliefs during their initial, proto determinist, years((“Tells Court His Allegiance Pledged to ‘Islam’; Not U.S.,” Chicago Defender, August 8, 1942, p. 12, col)). Indeed, as Kathleen M. O’Connor suggests, “It is not secular nationalism that unlocks the meaning of ‘Nation consciousness,’ used in recent years to describe [African American Muslim] discourse, but religious nationalism.”(( O’Connor, “The Islamic Jesus,” 504))

Moreover, in the context of this study the term suggests that on a basic ontological level, the Nation of Islam’s criteria for civil existence—member- ship in a nation—included, but was more expansive and therefore differed from the general requirements associated with America citizenship. In essence, the NOI’s understanding of civil rights did not spring from American cultural products such as the U.S. Constitution but from their perception of world history and interpretation of Islam.

Indeed, Otis B. Grant notes that one of the principle differences between Martin L. King, Jr. and Malcolm X was that Malcolm X, “embraced nationalism partly because he construed the Constitution to be merely a set of rules and regulations that reflected the law and policies of the white majority.”(( Otis B. Grant, “Constitutionalism Within the Political Ideologies of Malcolm X and Martn Luther King, Jr.,” in Engines of the Black Power Movement: Essays on the Influence of Civil Rights Actions, Arts, and Islam, ed. James L. Conyers, Jr. (Jefferson: McFarland & Company, Inc., Publishers, 2007) 225)) Moreover, as Amina B. McCloud points out, “A growing concern for African American Muslim communities centers around United States law and its implications. The guiding force of Islam is a set of laws and authority that transcends the United States legal system. Oftentimes there is tension between the two.”  Briefly then, the NOI’s articulation and defense of its ethno-religious identity revolved around the group’s quest for both self-definition and agency, that is, creating and determining the reality of its members based on its own particular self- interest. Although the NOI did not align itself with any specific civil rights group, its ethno-religious identity provided the rational through which it would defend its freedoms and rights as a religious community.

The implication of the thesis that directs this study is far reaching. Although the Nation of Islam was routinely characterized as violent and irreligious by law enforcement officials and contemporary civil rights organizations of the period, emphasizing the religious community’s legal approach to obtaining civil rights and liberties highlights the NOI’s use of strategy and multidimensional approach to social and political struggle. Moreover, this story is—at its best—a compelling story of achievement against overwhelm- ing odds: African Americans struggling for their right to religious belief on their own terms, unapologetically. As such, it represents one of the many untold stories of an African American community acting in its own self- interest and successfully bringing long-term change in the everyday lives of its members.

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