Religious Tolerance in the Law: The Usage Of Sharia’a Law in U.S. Courts

Law and religion are built around a code of equality, human rights, and tolerance. Both carry enormous power in dictating community responses to these values and frequently both fail to uphold these standards. In Islam, law and religion are physically connected in Shari’a law, a primarily legal and secondarily social organization of practices and expectations based in the Qura’n and Hadith. A recent movement towards banning Shari’a law from American Court systems has achieved traction in a number of states with 201 anti-Shari’a law bills being introduced in 43 states between 2010-2018 (Shanmugasundaram 2018). At first glance this pushback seems reasonable; there is no place for religious law in the courtroom of a secular liberal democracy. However, a deeper study of Shari’a law, comity, and the interaction between the two, reveals that treatment of Shari’a law as different than any other foreign nation’s law not only lacks a legal backing but is harmful to domestic and international tolerance. In the following pages I will present arguments made by anti-Shari’a organizations for the banning of Shari’a law from American courtrooms, namely, that Shari’a law is contrary to the human rights standard of the United States and that Shari’a law, as religious law, should not be recognized in a secular courtroom. To these I will give a dual critique, first rebutting these arguments individually, and second, arguing that even if the validity of anti-Shari’a arguments is assumed, these arguments would not have the impact feared. Using court cases I will illustrate that, in practice, Shari’a law does not prove a threat to American law or rights. Finally, I will argue that since a blind ban of Shari’a law is in opposition to the American law and legal system, it sends a message to the general public that Islamic law is antithetical to American values and a message to Muslim communities that they are unwelcome here. Discrimination towards Shari’a law in American courtrooms has increased significantly over the last decade, led by predominently right wing organizations and activists with legal and homeland security focuses. They have a dual argument, that Shari’a law is contrary to the human rights standard of the United States and should therefore not be recognized in its courtrooms and, more broadly, that religious law should not be recognized by the United States. If Shari’a law is recognized in U.S. courtrooms, they claim, it will be a threat to American freedom and democracy. Purporting this, they have been successful in turning misinformed fear mongering rhetoric into state legislation. The panic surrounding the presence of Shari’a law can be attributed to a widespread lack of understanding or misunderstanding of Shari’a as a concept and practice. Conceptually, Shari’a is concerned with the observance of the five pillars of Islam: belief in God, ritual prayers, fasting, the hajj (pilgrimage), and charity. Directly interpreted, shari’ah means “the way”, the path of religious rituals and day to day life which Muslims are to follow. As a legal doctrine, Shari’a law is formed from Islam’s two key sources, the Qur’an, the holy book of Islam understood to be the word of God, and the sunna, a biography of the Prophet Mohammed. From the sunna is derived

the hadith, direct teachings of the Prophet. These texts are understood to be infallible and immutable but as Shari’a law is applied through ijtihad (interpretation of holy sources) by ulama (Islamic jurists) and implemented through fatwa (the rulings of jurists), fiqh (the application of Shari’a law) is fallible and changeable. This distinction is critical to responding to critiques of Shari’a law. While Shari’a is the divine law of God, the rules derived from it and applied in the courtroom are human creations. This is instrumental to the epistemology of fiqh itself: “because no fiqh rule can conclusively claim to be “the” correct understanding of Sharia, no fiqh rule is—in and of itself—binding on any Muslim”(Quraishi-Landes, 252). Additionally this clarification responds to “offensive” fiqh rules frequently cited by anti-Shari’a activists: “Quoting one (or even more than one) fiqh rule does not define Sharia any more than quoting Plessy v. Ferguson defines the U.S. Constitution” (QuraishiLandes, 252). While it is clear that Shari’a is not as monolithic or inflexible as it is frequently understood to be, the opinion that Shari’a law in America is harmful, particularly to women, still resonates with many. Quraishi-Landes emphasizes, “This is important because few Americans have any appreciation for either how Shari’a might be seen as a positive force in Muslim lives, or what a Shari’a ban could mean for American Muslims” (Quraishi-Landes, 252). The broader interpretation of Shari’a law as inherently anti-feminist is as incorrect in practice as it is in theory. Indeed, Shari’a Courts, used predominantly by women, can be seen as integral to the access of their rights. Studying the application of Shari’a in Ottoman Courts, Leslie Peirce remarks that women’s appeal to Shari’a courts can be seen as “an act of agency that establishes a dialogue with the community through the auspices of the court” (Peirce, 373-374). Additionally, there are certain Shari’a laws which benefit women to a greater extent than does American law. For example, in American divorce procedures, a woman’s property can be split with her husband. In Shari’a law, a woman’s property is exclusively her own, it is protected by law from both her father and husband. This is not to say that Shari’a law is without discriminatory and unequal practices, but that the assumption of Shari’a law as monolithic and offensive to American standards of gender equality is inaccurate; in fact, many “Muslim women might object to the wholesale judicial disregard of Shari’a as an intrusion upon their rights” (Quraishi-Landes, 254). Examination of the second argument of anti-Shari’a proponents, that religious law should not be permitted in secular courtrooms, reveals a fundamental misunderstanding of the application and constitutionality of the role of religious law in American courts. While the United States legal system is secular and forbids the use of religious law as binding legal authority, religious law may apply to certain legal scenarios. For example, “parties to private agreements or civil transactions (e.g., contracts, arbitration agreements, domestic relations agreements or settlements) may provide that religious law would apply to the terms of the agreement or in the case of a dispute or breach of the agreement”(Brougher, 1). The balancing of religious based legal requests with secular law is a necessary component of American law. This has been effectively accomplished with constitutional and legislative practices such as comity and public policy. These established

practices have been used to adjudicate the religious laws of American Catholics, Native Americans, Jews, Mormons and others for two centuries. The use of religious law is not unconstitutional but the ban of religious law is. In 2010 the definitive approval of an Oklahoma state constitutional amendment which prohibited the use of Shari’a law in state courts was legally challenged to determine whether the amendment complied with the First Amendment of the U.S. Constitution (Brougher, 1). Within the First Amendment the Establishment Clause prohibits government preference among religions or between religious and nonreligious groups or individuals. Additionally, the Free Exercise Clause forbids the government from burdening group or individual ability to practice religious beliefs. Any bill which specifically bans Shari’a law can be viewed as government disapproval of Islam and government impingment upon Muslims’ right to practice freely, both of which are in violation of the First Amendement. While it has been demonstrated that the primary arguments for Shari’a law bans are unfactual, it is worth recognizing that even if this were not the case, the fears behind them would not be actualized. Arguments that Shari’a presence will permeate U.S. law and create unfair rulings are unfounded, due to circumvention by the U.S. treatment of religious and international law. The United States has a two hundred year tradition of granting comity to religious and international rulings. Comity is the process by which U.S. courts accept the ruling of another court without a retrial, relinquishing jurisdiction over the case. This is done for the purpose of convenience but also for diplomacy, the underlying notion of comity being “that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect”(“Comity” 2020). Comity should not be understood as a blanket legal obligation but rather as a case by case ruling which meets the standards and procedures of comity. When applied to international religious laws, comity standards establish that the case must meet public policy standards of the U.S. state where comity is granted and the religious law must be secular as well as religious in the country where the ruling was delivered. In application, this means if a divorce is granted by Islamic law but the divorce does not comport with state law or the country of origin does not recognize Shari’a law, the divorce will not be considered legal. Therefore, if Shari’a law was purely religious or was contrary to human rights, it would not be granted recognition by U.S. courts. The standards of comity protect against the fears, however inaccurate, of anti-Shari’a organizations, however this is only true if these standards are followed. The following court cases demonstrate the actualized treatment of Shari’a law in United States courtrooms. The first criteria of comity, the comportment of public policy, assures that the United States will not grant comity to rulings which fail to meet the established human rights standards of the state. This is illustrated in Aleem v. Aleem (Aleem v. Aleem, 947, 2008), a case in which Farah Aleem, the wife, filed for divorce in the Circuit Court for Montgomery County, Maryland. During these proceedings her husband, Irfan Aleem, a Muslim and Pakistani citizen, went to the Pakistani Embassy and preformed talaq. Talaq is one of three divorces recognized by Shari’a law and allows the husband to dissolve a marriage independently by repeating “I divorce thee” three times. Irfan claimed that the performance of talaq, under both religious and secular Pakistani law, deprived the Court of jurisdiction to divide the parties’ assets. The Maryland Court disagreed.

The court claimed jurisdiction, refusing to grant comity to the performance of talaq as it was only available to men and therefore was a form of sex discrimination. By this discrimination talaq was incompatible with the public policy of the State of Maryland, specifically the Equal Rights Amendment. Beyond the talaq, the court ruled that it would not grant comity based on Pakistani divorce procedures depriving women of the due process they are entitled to when divorcing in Maryland. They concluded, “the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband's name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband's name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy” (Aleem v. Aleem, 2). This standard was upheld in Tarikonda v. Pinjari, a 2009 divorce case in which the court concluded, “to accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws” (Tarikonda v. Pinjari, 2009, 4).

The second criteria of comity, that the ruling must be secular as well as religious is illustrated through Falah v Falah (Falah v. Falah, 1-22). In this case husband and wife were from Israel but held residency in Ohio. The husband filed for divorce in Israel at Shari’a Court, which was granted due to irreconcilable discord and dispute. The Shari’a Court decision ordered the husband to pay his wife her deferred dowry registered in the marriage contract which he subsequently did. In deriving a ruling the Ohio court looked to the Shari’a Court’s establishment but entered an independent judgement, granting the wife divorce and additionally finding the dowry payment to be a form of spousal support. The court determined that this did not prohibit further payments and applied the factors set forth in R.C. 3105.18(C)(1) to determine whether an additional award of spousal support was appropriate. The husband appealed, arguing that since the Ohio court had granted comity to a divorce obtained in Israel under Shari’a law that it should have dismissed matters of spousal support, asset distribution, and debt division as outside of its jurisdiction. The Ohio court disagreed (Falah v. Falah, 1-22). The court of appeals affirmed the ruling of the Ohio court, arguing that while the Ohio court used the religious divorce granted by Shari’a law as additional evidence, it did not grant it comity, instead granting a decree of divorce and setting forth orders for the division of their assets and the allocation of their debt. The court did not grant comity because “it is entirely unclear from the record what legal effect, if any, the Sharia Court decision has (in Israel)”(Falah v. Falah, 10). This impression was largely derived from the testimonies of both husband and wife who described Shari’a law in Israel as being exclusively religious. Notably, the court of appeals wrote that “had the court actually given comity to the Sharia Court’s decision, its decision would have been in error” (Falah v. Falah 10). According to this Ohio decision, although religious divorce may be entered as evidence in secular divorce hearings, a purely religious divorce cannot be granted comity and is not legally binding. In each individual trial, the secular nature of divorce or marriage must not only be alleged but also proven as shown by the case In re Marriage of Elgammal and Aboutaleb (In re Marriage of Elgammal and Aboutaleb, Cal. Ct. App., Dec. 8, 2010). In this trial the husband Aboutaleb

stated that he divorced his wife Elgammal in the customary Egyptian way “according to the Law and Sharia” (In re Marriage of Elgammal and Aboutaleb, Cal. Ct. App., Dec. 8, 2010). He claimed this in order to challenge the validity of the ongoing proceedings, however, he failed to provide any legal evidence that he had divorced secularly as well as religiously. As such, the court denied his claims and refused to grant comity to the divorce. Other cases (Elahham v. Al-Jabban (Elahham v. Al-Jabban 2017), Garba v. Ndiaye (Garba v. Ndiaye 2016), and Yehia v. Goma(Yehia v. Goma 2017), uphold the principle that a divorce or marriage must be secular as well as religious to be granted comity. These cases are clear, American judges do not outright reject Shari’a based cases nor do they give them deference without consideration of comity standards. In application, judges treat Shari’a law with the same established practices which have been used to adjudicate all other religious law for two centuries. In the study of Shari’a law there is nothing which excludes it from this legacy. This conclusion is affirmed by an array of professors, attorneys, legislators, judges and the American Bar Association who have denounced the anti-Shari’a movement and all other “federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of the entire body of law or doctrine of a particular religion” (American Bar Association Adopted by the House of Delegates 2011). These experts stand resolved that the presence of Shari’a law in American court systems is not a threat to American law, but a demonstration of it. Shari’a law is in no way a danger to American law, making the movement to ban Shari’a law more sinister. There is an argument to be made that “the anti-Shariah campaign...appears to be an end in itself, aimed at keeping Muslims on the margins of American life” (Elliot 2011). This has been echoed by Muslim communities who assert that the anti-Shari’a movement is “purely a political wedge to create fear and hysteria” (Elliot 2011). As previously established, comity is built around respect for other organizations' legal systems, a blind ban of Shari’a law sends an unmerited message of intolerance. It is a statement that Shari’a law, and subseqently Islam itself, is contrary to American law and values. It labels Shari’a law as so antithetical to American law that it deserves consideration contrary to precedent and logic. This is not without consequence for Muslim communties. In 2015, hate crimes against Muslims increased by 67 percent (Shanmugasundaram 2018). As demonstrable, failure to give Shari’a law its due diligence as a legal system perpetrates Islamophobia and is harmful to domestic and international tolerance.

Albano, Christine, and Laura W. Morgan. "The Intersection Of Sharia And Family Law: A Policy And Case Summary". Cdn.Ymaws.Com. 2917. Web.

Aleem v. Aleem, 947 A.2d 489, 502 (Md. 2008)

American Bar Association Adopted by the House of Delegates. 2011. "113A."

Brougher, Cynthia. "Application Of Religious Law In U.S. Courts: Selected Legal Issues." Fas.Org. 2011. Web.

"Comity". 2020. LII / Legal Information Institute.

Elahham v. Al-Jabban 899 N.W.2d 768 (Mich. Ct. App. 2017).

Elliot, Andrea. 2011. "The Man Behind The Anti-Shariah Movement". Nytimes.Com. https://www.nytimes.com/2011/07/31/us/31shariah.html.

"Falah V. Falah". (Ohio Ct. App. Mar. 27, 2017)

Garba v. Ndiaye 132 A.3d 908 (Md. Ct. Spec. App. 2016)

2010) In re Marriage of Elgammal and Aboutaleb 2010 WL 4970224 (Cal. Ct. App., Dec. 8,

Johnson, Ross. 2012. A Monolithic Threat: The Anti-Sharia Movement and America’s Counter-Subversive Tradition, 19 Wash. & Lee J. Civ. Rts. & Soc. Just. 183.

Leslie Peirce, ‘Fatma’s Story’, Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley: University of California Press, 2003, pp. 351-74 (e-book).

Michael, Robert. 2012. "The Anti-Sharia Movement And Oklahoma's Save Our State Amendment - Unconsitutional Discrimination Or Homeland Security?". Core.Ac.Uk. https://core.ac.uk/download/pdf/80037905.pdf.

Quraishi-Landes, Asifa. 2013. "Rumors Of The Sharia Threat Are Greatly Exaggerated: What American Judges Really Do With Islamic Family Law In Their Courtrooms". Digitalcommons.Nyls.Edu.

Shanmugasundaram, Swathi. 2018. "Anti-Sharia Law Bills In The United States". Southern Poverty Law Center.

"Sharia: The Threat To America". 2016. Centerforsecuritypolicy.Org.

Tarikonda v. Pinjari (Mich. Ct. App. 2009): Michigan Law defeats Extralegal Divorce Attempt’.”

Yehia v. Goma 55 Misc.3d 1201(A), 55 N.Y.S.3d 695 (Table), 2017 WL 1052251, 2017 N.Y. Slip Op. 50327(U) (N.Y. Sup. Ct., Mar. 20, 2017).

Louis Brandeis, a lawyer and judge in the late-19th through mid-20th century, was influential in shaping American jurisprudence. Known as the “people’s attorney” for defending a range of civil liberties and individual rights, Brandeis famously advocated for the right to privacy, a concept that he understood to be inherent in the laws of the United States Constitution (National Public Radio 2016). His conceptualization and justification of “the right to be let alone” was instrumental in the Supreme Court’s interpretation of privacy rights and continues to be cited in modern cases concerning privacy. Although the Constitution contains no express “right to privacy,” Brandeis’ reasoning that constitutional protections extend beyond the physical forms the foundation of the Court’s evolving protections of privacy in the face of modern invasive surveillance technologies. This paper explores Brandeis’ formative ideas about privacy and their application to later Supreme Court cases. An overview of the development of the right to privacy found in the Fourth Amendment is followed by a discussion of means the Court has in protecting privacy rights in the 21st century.

In their 1890 article “The Right to Privacy” published in the Harvard Law Review, Brandeis and Samuel Warren discuss the need to recognize and protect privacy rights. They write of existing privacy concerns, “For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer” (Warren and Brandeis, 195). Warren and Brandeis recognize that the availability of portable, affordable cameras and audio recording devices, along with the rise of yellow journalism, introduced new forms of invasion into private life. They argue for the articulation of legal protections, viewing the right to privacy as an existing legal principle that had already been followed in cases involving protections of one’s home, one’s private papers, and one’s reputation. Warren and Brandeis compare privacy rights to copyright laws, illustrating that protections for both exist independently of the material or the content that is protected:

Neither does the existence of the right depend upon the nature or value of the thought or emotions, nor upon the excellence of the means of expression. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay … In every such case the individual is entitled to decide whether that which is his shall be given to the public. (Warren and Brandeis, 199)

Brandeis’ early ideas about privacy revolve around the need to extend protections beyond the physical. He thought that the “incorporeal rights” that emerged from legal protections of physical

property further expanded to protect intangible “products and processes of the mind” (Warren and Brandeis, 194). Warren and Brandeis assert that the articulation of a right to privacy is to follow a similar legal development to protect a more fundamental principle that they termed “inviolate personality” (Warren and Brandeis, 205). This principle protects not the individual’s work from physical theft or appropriation but the peace of mind afforded by having control over whether that work is made public or kept private.

After Brandeis was appointed Associate Justice of the United States Supreme Court, he dissented in the 1928 case Olmstead v. United States in which the government obtained incriminating evidence from wiretapping phone lines to intercept private conversations. The wiretapping equipment was installed “in the basement of a large office building and on public streets” (Olmstead v. United States, 438), raising the question of whether privacy could be expected in spaces outside of one’s home. In a 5-4 decision, the Court ruled that wiretapping did not constitute a search and seizure under the Fourth Amendment because no physical invasion of the home or seizure of private property had occurred. The Court distinguished phone conversations from sealed letters and viewed the Fourth Amendment as protecting “tangible personal property” (Olmstead, 451). The Court interpreted the protections against warrantless searches and seizures to exist where trespass occurs, and ruled that the interception of a telephone conversation did not violate the Fourth Amendment because no trespass occurred. Brandeis disagreed with the majority reasoning that the Fourth Amendment did not extend to protect telephone conversations, and he advanced the argument that the Fourth Amendment protects a broader “right to be let alone.” (Olmstead, 478). Brandeis argued that constitutional protections of privacy applied beyond physical trespass. Brandeis drew upon the 1886 case of Boyd v. United States, in which the government compelled the defendant E.A. Boyd & Sons to produce their own papers in search of incriminating evidence (Boyd v. United States, 616). In that case, the Court ruled that although the government did not commit a physical intrusion of the home, the government’s actions had the effect of an unwarranted search and seizure, and that the Fourth Amendment protects “the sanctity of a man’s home and the privacies of life” from such invasions (Boyd, 630). Brandeis cited that decision to support his argument that the Court should interpret constitutional protections of privacy to apply beyond physical trespass, quoting Justice Joseph Bradley: “It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property” (Boyd, 630). In the 1967 case Katz v. United States, the Supreme Court eventually overturned its previous decision in Olmstead and developed a test for the “reasonable expectation of privacy,” in effect advancing Brandeis’ idea of one’s “right to be let alone” (Katz v. United States, 347). Presented with the question of whether the government’s installation of a microphone outside of a public phone booth violated the Fourth Amendment, the Court expanded its previous interpretation of the concept of “trespass” and ruled that the right to remain free from unreasonable searches and seizures does exist beyond the physical home (Katz, 360). The Court reasoned that because the

Fourth Amendment “protects people—and not simply ‘areas,’” its reach “cannot turn upon the presence or absence of a physical intrusion” (Katz, 353). In Justice John Marshall Harlan’s concurrent opinion, he articulated the idea of a “reasonable” expectation of Fourth Amendment protection. Harlan created a two-part test to determine whether the government was violating Fourth Amendment rights. The “Katz test,” as it came to be known, included two requirements— “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’”—that if met, a violation of that expectation would constitute a violation of the Fourth Amendment (Katz, 361).

Over time, advances in technology have introduced new forms of surveillance and tools of invasions into private life that led the Court to find other justifications for protecting the right to privacy. For example, in the 2012 case United States v. Jones, which considered the warrantless long-term GPS tracking of defendant Antoine Jones’ vehicle, although the justices unanimously agreed that Jones’ Fourth Amendment rights had been violated, they were split on the reasoning of the decision (Goldstein 2012). In the opinion of the Court, written by Justice Antonin Scalia, the government’s actions were a physical trespass that violated the Fourth Amendment. Scalia wrote that the Katz test did not apply nor that it would have shown that Jones had a reasonable expectation of privacy (United States v. Jones, 400). However, the concurring opinions demonstrated the possibility of finding a reasonable expectation of privacy using other lines of reasoning. Justice Samuel Alito’s concurrence argued that the question should be framed as not whether physical trespass occurred but rather whether a reasonable expectation of privacy was violated (Jones, 419). He criticized the narrowness of the ruling for placing no limits on the government with respect to electronic monitoring as long as it does not involve attaching a tracking device to personal property:

[I]f long-term monitoring can be accomplished without committing a technical trespass— suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection. (Jones, 420)

Justice Alito argued that with technological developments that made surveillance cheaper and easier, the Katz expectation-of-privacy test more appropriately addressed the question at hand. Justice Sonia Sotomayor, though joining Scalia’s opinion, wrote a concurrence that emphasized the existence of a reasonable expectation of privacy even in the absence of trespass. She questioned the premise that an individual loses his expectation of privacy in information once it is voluntarily disclosed to a third party:

This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks ...

I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. (Jones, 417)

She agreed with Justice Alito that “the same technological advances that have made possible non trespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations” (Jones, 415). This begs the question of whether privacy expectations in modern society have shifted so far that legal tests, such as the Katz test, would require adjustments to account for those expectations in cases that do not involve “a classic trespassory search”(Jones, 412). In cases where the government illegally obtains personal information without physical trespass, the Court increasingly uses the expectation of privacy as justification for privacy protections. For example, in the 2017 case Carpenter v. United States, the Court considered the constitutionality of the government’s warrantless acquisition of Carpenter’s cell site location information (Carpenter v. United States). Phone companies collect this location information each time a phone is used to make a call, send or receive a text or email message, or access the Internet. The Court, drawing parallels with the collection of GPS information in Jones, ruled that the government, by acquiring the “detailed, encyclopedic, and effortlessly compiled” cell site location information records providing “near perfect surveillance” of an individual’s movements, did indeed invade Carpenter’s reasonable expectation of privacy (Carpenter). In a 5-4 decision, the Court ruled that the government’s actions amounted to a warrantless search and seizure that violated the Fourth Amendment. The dissenting justices did not challenge the use of reasonable expectation of privacy as a justification; rather, they mostly argued that the Fourth Amendment did not apply for other reasons. As can be seen from more recent cases, the majority of justices have applied expectation of privacy as their justification instead of continuing to make physical trespass arguments when protecting privacy rights.

Since privacy is not explicitly mentioned but viewed as being inherent in the Constitution, the Court may continue to struggle with the complexities of justifying the right to privacy on a case-by-case basis. The Gale Encyclopedia of American Law recognizes that privacy holds different meanings under different legal contexts and defines the term to generally include 1) “the right to make certain fundamental decisions concerning deeply personal matters free from government coercion, intimidation, or regulation”; 2) “the right to be let alone”; and 3) “the right to prevent the nonconsensual disclosure of sensitive, confidential, or discrediting information” (Batten, 109). The first definition relates to self-determination, the second to seclusion, and the last to secrecy. Although this paper focuses on the Fourth Amendment protections of the “right to be let alone,” the Court has also used other Amendments to justify protections of other aspects of privacy. In the 1973 case Roe v. Wade, the Court reasoned that the Due Process Clause of the Fourteenth Amendment protects the mother’s choice to have an abortion, corresponding to the self-determination aspect of privacy (Oyez, “Roe v. Wade”). The Miranda warning, established as

a result of the 1966 case Miranda v. Arizona, protects the Fifth Amendment right against selfincrimination, relating to the secrecy aspect of privacy (Oyez, “Miranda v. Arizona”). The Court has demonstrated that it can interpret the Constitution to justify different privacy protections despite new forms of intrusion—a challenge that the Court will have to continue to navigate with the rise of the Internet and social media platforms. Rapid technological developments in the 21st century increase the complexity of privacy issues, further blurring the lines between public and private figures, between voluntary and involuntary disclosure of personal information, and between legal and illegal searches without warrants. In 2013, whistleblower Edward Snowden exposed the mass surveillance program by the National Security Agency (NSA) that involved the collection of millions of Americans’ telephone records, sparking debates about privacy and surveillance in the digital era (Satter 2020). Snowden revealed that the NSA could remotely activate cell phones to monitor phone calls, conversations, and movements using the cameras and microphones that appear turned off (Satter 2020). In September 2020, seven years after Snowden’s exposé, the U.S. Court of Appeals for the Ninth Circuit ruled that the NSA’s activities were illegal and violated Americans’ privacy rights (Satter 2020). The challenge, though, is for legal protections of privacy to keep pace with the development of invasive technologies and means of surveillance. Modern technological advancements make it increasingly easier to invade people’s privacy and at a much larger scale. Widely used high-tech devices, such as smartphones, lend themselves to surveillance in ways that far exceed what was previously possible. Mass surveillance can be done completely remotely and passively, introducing new challenges to traditional notions of invasion and privacy. Like the GPS tracking device in the Jones case, evolving technologies will ask the Court to develop its justification of the right to privacy. For now, the Supreme Court’s trend toward justifying privacy protections beyond physical trespass validates and preserves Justice Brandeis’ original ideas. In light of these developments, whether the concept of physical trespass has outlived its usefulness as a justification for protecting the right to privacy remains to be seen.

Boyd v. United States, 116 U.S. 616 (1886). Carpenter v. United States, 585 U.S. ___ (2018). Goldstein, Tom. “Why Jones Is Still Less of a Pro-Privacy Decision Than Most Thought (Conclusion Slightly Revised Jan. 31).” SCOTUSblog, 2012. https://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro-privacy-decision-thanmost-thought/. Katz v. United States, 389 U.S. 347 (1967). “Miranda v. Arizona.” Oyez. Accessed October 19, 2020. https://www.oyez.org/cases/1965/759. Olmstead v. United States, 277 U.S. 438 (1928). "Privacy." In Gale Encyclopedia of American Law, 3rd ed., edited by Donna Batten, 8:109–118. Detroit: Gale, 2010. Gale eBooks. https://link.gale.com/apps/doc/CX1337703467/GVRL. “Revisiting the Tenure of Supreme Court Justice Louis Brandeis, the ‘Jewish Jefferson.’” Fresh Air. National Public Radio, June 7, 2016. https://www.npr.org/2016/06/07/481076322/revisiting-the-tenure-of-supreme-court-justice-louisbrandeis-the-jewish-jeffers.

18. “Roe v. Wade.” Oyez. Accessed October 19, 2020. https://www.oyez.org/cases/1971/70-

Satter, Raphael. “U.S. Court: Mass Surveillance Program Exposed by Snowden Was Illegal.” Reuters, September 2, 2020. https://www.reuters.com/article/us-usa-nsa-spying/u-scourt-mass-surveillance-program-exposed-by-snowden-was-illegal-idUSKBN25T3CK. United States v. Jones, 565 U.S. 400 (2012). Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4, no. 5 (1890): 193–220. https://doi.org/10.2307/1321160.