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.