Analyzing the prohibition of interfaith marriage in Indonesia: legal, religious, and human rights perspectives

Abstract

The prohibition of interfaith marriage is stipulated in the Indonesian Marriage Law where this practice is considered valid when conducted according to the laws of each respective religion and belief. This is supported by the Compilation of Islamic Law, regulating the prohibition of interfaith marriage. This research aimed to analyze the prohibition of interfaith marriage using a qualitative methodology with normatively on the regulations and Indonesian Supreme Court Decision Number 1977/K/PDT/2017. The results showed that Supreme Court Justices reject the review of the rules governing interfaith marriage submitted by a couple (Islam and Christianity). This was because the concept violated the Human Rights Law, the Marriage Law, the Compilation of Islamic Law, and the Fatwa of the Indonesian Ulema Council. Furthermore, the decision was in conflict with human rights concerning an individual’s freedom to have beliefs and form a family. Pluralist groups also viewed this prohibition as more of a political nature under the guise of religion. Therefore, many interfaith couples preferred unregistered marriage abroad before recording in the Civil Registry Office, which represented a form of legal smuggling in Indonesia as the impact of perplex on this issue.

Keywords:

• Human rights
• Interfaith marriage
• Pluralism
• Supreme Court

SUBJECTS:

• Family, Child & Social Welfare Law
• Human Rights Law & Civil Liberties
• Islamic Law

REVIEWING EDITOR:

• Prakash Matura, Taylor & Francis, India

1. Introduction

Residing in a diverse community is related to the acknowledgment and reverence of distinctions. In the context of interactions among individuals and a human sense of mutual respect, religious differences do not serve as a hindrance for two individuals aspiring to become married. The institution of marriage constitutes an inherent and inviolable right held by every human being, as stated in Article 10, Section (1) of Law Number 39 of 1999 concerning Human Rights. Therefore, this research analyzes the cardinal tenet of free will in the context of matrimonial unions, denoting an authentic and unforced intention devoid of any duress, deceit, or coercion. The Law on Human Rights exclusively concerns itself with the civil facets of marriage, making no preferences for any particular religion in the validation of matrimonial bonds. However, Marriage Law still upholds the concept of validity dependent on religious considerations (Sekarbuana et al., 2021).

Every individual has the right to establish a family and continue the lineage through a valid marriage. From a religious perspective, marriage is considered a covenant between two parties to fulfill the commandments and recommendations of the Almighty in ensuring that family life, household affairs, and relationships with neighbors proceed according to the teachings of the respective religions. From a religious perspective, it is a ‘physical and spiritual covenant’ with legal consequences under the faith of the two prospective spouses and the extended families. Religious law defines the position of individuals based on the faith and piety, indicating the action to be performed and avoided (prohibited). Therefore, every religion cannot fundamentally accept interfaith marriage (Wahyuni, 2018).

In practice, marriage does not only include people of the same religion or nationality. There are cases where husbands and wives come from different religious or national backgrounds. Democracy and Human Rights are argued as the basis for justifying mixed marriage, even though other obligations and regulations are not considered (Utami & Ghifarani, 2021).

Interfaith marriage is not a new phenomenon in multicultural Indonesia but has taken place in the community (in various social dimensions) for a long time (Hamsin, 2014). This type of union is not often accepted by the community, frequently causing complications and potential problems (Utami & Setiawan, 2022). The absence of specific regulations leads couples to explore various means, such as marrying abroad. Even though interfaith marriage is not allowed from the perspective of religion practiced in Indonesia, the concept exists in this diverse community (Abdul Halim, 2016).

Every religion has its foundation and Islam prohibits marriage between a Muslim and a non-Muslim (a polytheist), as stated in QS al-Baqarah/2:221:

Do not marry polytheistic women until they believe; for a believing slave-woman is better than a free polytheist, even though she may look pleasant to you. And do not marry your women to polytheistic men until they believe, for a believing slave-man is better than a free polytheist, even though he may look pleasant to you. They invite ‘you’ to the Fire while Allah invites ‘you’ to Paradise and forgiveness by His grace. He makes His revelations clear to the people so perhaps they will be mindful.

The prohibition can also be found in the Compilation of Islamic Law, which was first compiled in 1985. The Compilation explicitly forbids interfaith marriage and cites one of the reasons for its prohibition based on the fatwa of the Indonesian Ulema Council. In this context, the Indonesian Ulema Council issued two fatwas related to the concept. First, the fatwa in 1980 stated that it was forbidden for a Muslim to marry a non-Muslim. Second, in 2005, the group reported that interfaith marriage was forbidden and invalid. The concept (Ahl al-Kitab) is considered forbidden and invalid according to qaul mu’tamad (Romdhon, 2022).

Interfaith marriage is also prohibited in Christianity as stated in the Old Testament. According to the book of Deuteronomy 7:3, Christians are also forbidden to marry someone of a different faith. Catholic Christianity explicitly states that a marriage between a Catholic and a follower of another religion is invalid (Canon 1086). In Cristhiany, God forbids interfaith unions in both the Old and New Testaments because God instituted marriage and demands that it be based on Jesus Christ. Humans must return to God and His Word in order to comprehend God’s eternal design for marriage, which requires marriage to fulfill its original purpose. God desires for marriages to be based on faith for this reason. The reason marriage is the cornerstone is that God starts society’s development on this foundation (Witoko & Budhisulistyawati, 2019; Silfanus, 2022).

In addition, Hinduism in Wiwaha states that an unsanctified marriage does not have legal consequences. The ritual should also be conducted under the teachings of Hinduism and a marriage is considered invalid when performed outside these teachings. According to the Buddhist Marriage Law (HPAB) and the decision of the Sangha Agung (Supreme Sangha) on January 1, 1977, a marriage is considered valid in line with the HPAB Indonesia (Article 2) (Wahyuni, 2018). Similar to other recognized religions, some people who adhere to Confucianism carry out marriage based on the provisions of their religion. In this context, the two individuals intending to marry must come to the relevant authority (religious leader) to be delivered to the Liep Gwan (marriage confirmation) ceremony in front of the Thian altar and the Confucian prophet (Witoko & Budhisulistyawati, 2019). These results imply that almost all religions oppose marriage between people of different faiths.

In strengthening the ban on interfaith marriage, a result study by Parsons, et al (2007) about identity status, differentiation, personal authority, and religiosity as four factors that influence interfaith marital satisfaction. These four predictors as well as marital satisfaction were measured using a questionnaire administered to 84 married interfaith people. According to multiple regression analysis, those who identified as having an attained identity were happier in their marriages than those who identified as having a foreclosed identity (Parsons et al., 2007).

This research aims to provide an understanding of the changing mindset of the urban community, specifically concerning interfaith marriage. Differences in religion are a matter of personal concern for individuals wishing to engage in the practice. However, some argue that this issue should receive attention from the government since it was disruptive to community life. There is often a deviation from the provisions laid out in Article 2 of Law Number 1 of 1974, where a marriage is considered valid when conducted under the laws of each respective religion and belief. According to a survey conducted by the Indonesian Conference on Religion and Peace (ICRP), the number of interfaith marriages in Indonesia increased gradually between 2005 and 2023, reaching 1,645 occurrences (Riana, 2023).

This research shows that a valid marriage is carried out under the laws of each respective religion and belief (Ilham, 2020). The term ‘laws of each respective religion and belief’ includes the regulations applicable to the group of religions and beliefs (Rosidah, 2013). Article 2, paragraph (1) does not prohibit interfaith marriage, but refers to a different legal system, namely religious law, to determine its validity. The answer depends on the principles in the religious legal system adhered to by each person (Bimasakti, 2021). Taking into account the current situation, it can be said that Indonesia’s potential of interfaith marriage produced ambiguous legal foundations that differ in interpretation. Since amounted to legal smuggling in Indonesia, many interfaith couples decided to get married abroad without being formally registered before registering with the Civil Registry Office.

This research is based on the assumption that (a) marrying a non-Muslim is considered forbidden. This is because some Muslims prefer non-Muslims, such as Christians and Jews, under the category of polytheist (musyrik). (b) The inquiry into whether non-Muslims can be accurately classified as polytheists according to the Qur’an. The definition and meaning of the term ‘polytheist’ in the Qur’an are then examined, and as a legal source for enforcing the law, the Supreme Court of the Republic of Indonesia Number 1977/K/PDT/2017 ruling should essentially be regarded as precedent for all judges going forward.

2. Method

This qualitative research (Im et al., 2023; Olmos-Vega et al., 2023) was conducted using the normative methods by using some approaches, such as legal regulations, literature review, and a case studiy on Indonesian Supreme Court Decision Number 1977/K/PDT/2017 regarding the prohibition of interfaith marriage as the primary data source (White, 2023; Hakim et al., 2023; Adrian et al., 2021). Data analysis is carried out descriptively (Violanti, 2022), allowing for clear and detailed explanations of the results.

3. Result and discussion

3.1. Supreme court decision

The chronology of the case in Supreme Court Decision Number 1977/K/PDT/2017 included the application for the recognition of the marriage between Applicants I and II at the cassation level after the previous application at the first-instance court was rejected by the panel of judges. The Applicants submitted a petition requesting that the panel of judges approve and recognize the interfaith marriage. Applicant I was a follower of Islam, while Applicant II adhered to Christianity. They made the application to the Religious Court of Blora (at the first-instance level) to grant permission for interfaith marriage and to have the act registered with the Civil Registry Office under the regulations.

The Applicants were in a loving relationship for approximately 13 years. The inner connection, grounded in their love for each other, reaffirmed the decision and conviction to proceed with the marriage. The marriage was scheduled to take place in May 2017 regardless of different religious backgrounds and verbal consent from both of their parents. Applicant I came from parents of different religious backgrounds and the marriage had been successful until then. This level of tolerance served as the basis for the conviction to maintain the relationship with Applicant II. Furthermore, Applicant II remained steadfast and did not wish to convert to Applicant I's religion. Evidence was also provided in the form of a certificate issued by the Arumdalu Blora Congregation of the Indonesian Bethel Church dated March 29, 2017. The marriage was conducted according to Christian customs, even though one of the partners was a Muslim.

The petitioner’s application was rejected by a panel of judges of the Supreme Court, and no recognition and permission was granted to continue interfaith marriage. There were two judge’s considerations; first, the legislation, namely Article 2 paragraph (1) of legislation Number 1 of 1974 concerning Marriage, says that marriage is lawful if it is carried out in accordance with the laws of each faith and belief. The Judex Facti verdict in the previous court did not breach the law in this regard. Second, the plaintiffs in the cassation lawsuit want to uphold their respective beliefs upon marriage, as it is forbidden in Islamic and Christian teachings for people of different faiths to marry. Naturally, this will affect not only one’s marital position but also one’s children’s standing and inheritance following marriage.

In the final judgment, the panel of judges decreed that the cassation application of Applicants I and II should be rejected. Supreme Court Decision Number 1977/K/PDT/2017 was based on the Marriage Law, the Compilation of Islamic Law, and the Fatwa of the Indonesian Ulema Council Number 4/MUNAS VII/MUI/8/2005 where interfaith marriage was forbidden and invalid. According to qaul mu’tamad, the marriage of a Muslim man to a woman of Ahl al-Kitab was prohibited and invalid. This fatwa was based on the Qur’an verses, including QS al-Baqarah/2:221, QS al-Mumtahanah/60:10, and QS al-Maidah/5:5. In addition, the Indonesian Ulema Council also adopted fiqh principles as a decision-making method, namely enhancing the prevention of negative effects over the pursuit of profit.

In this context, wise judges must prioritize the law in text as the main sources of law and they should consider the side effect of the verdicts, including in this interfaith marriage phenomena. It is similar to study conducted by Douglas and Solimine (2018), in which they found that the U.S. Supreme Court’s summary decisions have zero or very little precedential weight, meaning that the Justices are not required to hear these matters all the way through if they would prefer the matter to work its way through the lower courts first. However, there ought to be a presumption that the Court would offer legal advice on the matter; thus, it ought to schedule the case for oral argument and offer a comprehensive written opinion the majority of the time (Douglas & Solimine, 2018). Hence, rather than legalizing interfaith marriages owing to administrative requirements but breaking the law on the other hand, judges should consistently follow Article 2 paragraph (1) of Legislation Number 1 of 1974 concerning Marriage in order for the sentence to set a good precedent for the future cases. As so, the decision will leave society bewildered.

Interfaith marriages can be a complex issue in many societies, as they may involve different cultural, religious, and legal considerations. Supreme Court decisions on such matters are intended to provide legal clarity and consistency. In some cases, they may uphold the rights of individuals to marry whomever they choose, regardless of religious differences, while in other cases, they may prioritize the application of specific legal or constitutional principles.

Interfaith marriage in Indonesia is possible, but it is subject to certain legal and administrative requirements. Indonesia is known for its diverse religious and cultural landscape, and it officially recognizes several religions, including Islam, Christianity, Hinduism, Buddhism, and others. The government has established regulations to govern interfaith marriages to ensure that they are conducted in accordance with the country’s laws and principles of religious harmony. Some important points in conducting the interfaith marriage are (Hayat & Basharat, 2019):

1. Religious Freedom: Indonesia’s constitution guarantees religious freedom and the right to practice one’s faith. However, religious practices are subject to certain regulations and must be in accordance with the recognized religions in the country.

2. Religious Affiliation: In Indonesia, individuals are required to officially declare a religion on their national identification card (Kartu Tanda Penduduk or KTP). When individuals from different religious backgrounds wish to marry, they may be required to convert to one of the recognized religions or obtain permission from their respective religious authorities.

3. Marriage Requirements: Interfaith couples may need to meet specific requirements, such as obtaining approval from their religious leaders or clerics, and the marriage may need to be conducted in accordance with the religious rituals of one of the spouses.

4. Civil Registration: Interfaith marriages should be officially registered with the government to be legally recognized. The Civil Registry Office (Kantor Catatan Sipil) is responsible for registering marriages.

5. Legal Framework: Indonesia has a legal framework governing interfaith marriage, but the specific requirements and procedures may vary depending on the region and the local regulations in place.

It’s important to consult with local authorities, religious leaders, and legal experts to understand the specific requirements and processes for interfaith marriage in your area of Indonesia. The rules and practices related to interfaith marriage can differ from one region to another due to the decentralized nature of certain legal and administrative functions in the country. As a result of the study by Sri Wahyuni et al. (2012), it was shown that the interpretation of the law regarding interfaith marriages is different, and it seems that there is a vacuum, so partners of interfaith marriages tend to marry abroad, then return to Indonesia and register the marriage at the civil registration office. However, this effort was greeted differently at each civil registration office, where there were civil registration marriages that passed because the officer did not ask about the religion of the marriage partner and there were those that could not be registered because the officer saw the couple’s religion was different (Wahyuni et al., 2012). For instance, the case of Judgement Number 508/Pdt.P/2022/PN JKT.SEL in Jakarta, which permits applicants of different religious backgrounds who are bound by marriage to register their union at the South Jakarta Department Population and Civil Registration Agency (Firdaus, 2023).

In the context of Jewish and Christian religions in America in the nineteenth-century American literary focus on interfaith unions between Christians and Jews reflects the social and cultural issues surrounding America’s status as a ‘melting pot’ and the delicate relationships between the majority (Christian) culture and the minority (Jewish). The study’s findings show that, although younger people may theoretically be able to overcome societal biases, American society as a whole is still ill-prepared to accept future unions between people of different races and/or religions because of its conservatism, constrictive social norms, and deeply ingrained prejudices (Rabinovich, 2023).

In addition, as is the case in Israel, political and societal factors can have an impact on interfaith marriages. According to Sion (2023), in the Israeli context, where ethno-national identification serves as society’s primary category organizer, the state apparatus analyzes interfaith marriages to determine which citizens are to be symbolically included in the collective and which are to be excluded. The study also demonstrates how, although being very uncommon in Israel, interfaith unions reveal that ethnic and national barriers are more permeable than they initially seem, even though it is never easy to cross or move them. However, the significance of this occurrence lies in its influence on society and politics rather than its frequency (Sion, 2023).

According to researchers, Supreme Court rulings are usually predicated on how the law is interpreted and applied in a specific jurisdiction. The findings of Sanjaya’s study from 2023, which revealed that judges really decide whether or not to grant a disparity judgment based on their perception of a legal void that forbids marriages between individuals of different religious beliefs, support this (Sanjaya, 2023). Interfaith marriages are legal and do not create a legal gray area in terms of execution, according to the Constitutional Court’s own interpretation (2014 and 2022). It would rely on the particular legal environment and the arguments made by the parties in the instance of Decision Number 1977/K/PDT/2017.

3.2. The meaning of Ahl al-Kitab, musyrik, and kafir

The meanings of Ahl al-Kitab, musyrik, and kafir form the basis for debates and diverse interpretations regarding the permissibility and prohibition of interfaith marriage. Ahl al-Kitab refers to people who firmly believe in the holy books shown by Allah through His Prophets and Messengers. Nurcholis Madjid suggested that Ahl al-Kitab included Jews and Christians with followers of other religions such as Zoroastrianism, the Vedas, Buddhism, Confucianism, and others (Madjid, 2019). Maulana Muhammad Ali stated that Christians, Jews, Zoroastrians, Buddhists, and Hindus were part of the Ahl al-Kitab group (Ali, 1996). Abdul Hami Hakim, in the book Muhammad Galib, argued that Zoroastrians, Shabi’un, idol worshippers from India, China, and similar groups such as Japan, were classified under the category of Ahl al-Kitab due to the monotheistic teachings. Historical facts and the Qur’an references (QS al-Fathir/35:24, QS Ra’d/13:7) showed that the people were raised by a Messenger, hence, the holy books were considered heavenly scriptures (Galib M, 1998).

The discussion about the term al-musyrikat is explained concerning the word la in the phrase wa la tankihu al-musyrikat (do not marry polytheistic women). Al-Razi interpreted wa la tankihu al-musyrikat as wa la tumsiku bi’ishami al-kawafir, meaning ‘do not marry polytheistic women’ (Ar-Razi, 2012). Al-Qasimi interpreted the concept as la tatazawwaju al-wasaniyyat hatta yu’minna billahi, meaning ‘do not marry idolatrous women until they believe in Allah’. Al-Qasimi adopted Ibn Kathir’s opinion that the prohibition of marrying polytheistic women from idolatrous groups was ordained by Allah (Qasimi, 1997). Rasyid Ridha interpreted the act as la tatazawwaju al-nisa al-musyrikat madumnna ‘ala syirkihinna, meaning ‘do not marry polytheistic women as long as they remain in their polytheism’ (Ridha, 2011).

The term al-musyrikat implies partnership and association (Manzur, 1955). Scholars of the Qur’an exegesis have engaged in polemics when identifying musyrikat. Generalizing that every non-Muslim woman falls under this category does not seem realistic in considering the exceptions in QS al-Maidah/5:5. Some exegetes have used this verse as a basis to argue that women of Ahl al-Kitab are not part of the polytheistic group. Therefore, a textual interpretation legitimizes the permissibility of Muslim men to marry women of Ahl al-Kitab. This does not allow Muslim women to marry men of Ahl al-Kitab (Ar-Razi, 2012).

The term kafir linguistically means ‘to cover’, while kafir, which is repeated 525 times in the Quran, alludes to covering, namely concealing blessings and truths in terms of Allah as the source of truth and His teachings conveyed through His Messengers (Cawidu, 1991).

Given the diverse opinions regarding the terms Ahl al-Kitab, musyrik, and kafir, pluralistic-multiculturalist circles understand that the interpretation is a matter of ijtihad (independent juristic reasoning) by deconstructing these terms through the method proposed by Arkoun. For instance, Malki Ahmad Nasir, in ‘Arkoun’s Deconstruction of the Meaning of Ahl al-Kitab’, stated that Arkoun reinterpreted the concept of Ahl al-Kitab from an etymological and social sciences perspective. Malki explained that the term means a community enlightened by knowledge from a book, while those untouched by this knowledge are referred to as ummiyun or jahiliyya. Therefore, Arkoun suggested that the meaning of the term wa la tankihu al-musyrikat should be broadened and not limited to Jews and Christians but extended to anyone whose community possesses a book and is enlightened by its knowledge (Nasir, 2005).

The focus on interfaith unions between Christians and Jews in nineteenth-century American literature reflects the social and cultural issues surrounding America’s status as a ‘melting pot’ and the delicate relationships between the minority (Jewish) culture and the majority (Christian) culture. The study’s conclusions demonstrate that, despite the possibility that younger people can overcome societal biases, conservative social norms, deeply ingrained prejudices, and social norms generally make American society ill-prepared to accept future unions between people of different races and/or religions (Rabinovich, 2023).

Furthermore, political and social considerations might influence interfaith marriages, as they do in Israel. A result study shown the state apparatus examines interfaith marriages in Israel in order to decide which citizens are to be symbolically included in the collective and which are to be excluded, as ethno-national identity acts as society’s principal category organizer. Moreover, although being extremely rare in Israel, interfaith marriage show that national and ethnic boundaries are more permeable than they first appear to be, despite the fact that it is never simple to relocate or cross them. But rather than how frequently it occurs, what matters is how it affects politics and society (Sion, 2023).

3.3. Interfaith marriage from the human rights and pluralism perspectives

3.3.1. Human rights perspective

The prohibition of interfaith marriage is also viewed as violating human rights. Limiting religion is not in line with the basic principles of human rights and inconsistent with Articles 28E and 29 paragraphs (1) and (2) that every Indonesian citizen is given the freedom to embrace a religion. Article 10 paragraph (2) of the Human Rights Law states that a valid marriage can only be based on the free will of the parties. This research states the principle that the couple is free to decide on marriage. This free will is a desire created based on pure and sincere intentions without coercion, deception, or pressure. The Human Rights Law views marriage from a civil aspect, without regard for religion in a valid marriage (Setiarini, 2021).

This perspective is also reinforced in global human rights, as seen in the Universal Declaration on Human Rights (UDHR):

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination (Universal Declaration of Human Rights, 1948).

Indonesia has also ratified the UDHR through Law Number 39 of 1999 concerning Human Rights. This regulation is evidence of Indonesian commitment to upholding human rights and democracy.

Interfaith marriage is a complex issue that can be viewed from a human rights perspective, as it involves several fundamental rights and principles. Here are some key considerations from a human rights standpoint (Universal Declaration of Human Rights, 1948):

3.3.1.1. Freedom of religion and belief

The right to freedom of religion and belief is a fundamental human right protected under various international instruments, including the Universal Declaration of Human Rights. This right includes the freedom to practice, change, or manifest one’s religion or belief. Interfaith marriage is often a consequence of individuals exercising this right when they choose to marry someone from a different religious background.

Basically, Supreme Court Decision Number 1977/K/PDT/2017 has made Indonesia lag behind other countries that also uphold human rights. Religion is the basis of life for every human being in the world, but the desire to choose a life partner is every individual’s right too. As long as they choose a normal marriage, meaning not LGBT, then religious differences should no longer be a problem. As a result, many interfaith couples marry secretly without being registered administratively, which can have an impact on the unclear status of people’s residences.

3.3.1.2. Non-discrimination

Human rights principles emphasize that individuals should not be discriminated against based on their religion, race, or other protected characteristics. Interfaith couples may face discrimination or social stigma, and their right to marry and form a family without discrimination should be protected.

If the Indonesian Supreme Court discriminates by prohibiting interfaith marriages, then it is clear that the institution holding the highest judicial power has committed discrimination. In the case of Supreme Court Decision Number 1977/K/PDT/2017, it is also clear that Indonesia is not firm in taking on the role of a democratic country because it upholds human rights but also discriminates.

3.3.1.3. Right to marry

The right to marry is also a human right, as articulated in the Universal Declaration of Human Rights. This right implies that individuals have the freedom to marry the person of their choice, regardless of their partner’s religion.

Every human being cannot choose which nation to be born in and what religion to follow, so it is appropriate that a sacred marriage be protected. In the context of human rights, marriage should be the right of every individual, so whatever the consequences of the marriage, it is their responsibility, and the state is only a supervisor and administrative recorder.

3.3.1.4. Right to privacy and family life

The right to privacy and family life is protected under human rights law. Interfering with individuals’ choices of whom to marry based on religion can be seen as an intrusion into their private and family life.

3.3.1.5. Best interests of the child

If interfaith couples have children, their rights and best interests must be considered. Children have the right to know, practice, and be educated in their parents’ religion and beliefs, as well as the right to not be subjected to religious discrimination.

3.3.1.6. Freedom of expression

The right to freedom of expression includes the right to express one’s views and beliefs openly. Interfaith couples should have the right to openly express their choices and beliefs without fear of reprisal.

3.3.1.7. Tolerance and diversity

The promotion of tolerance and respect for diversity is another important human rights principle. Encouraging interfaith marriages and protecting the rights of interfaith couples can contribute to greater understanding and tolerance among different religious communities.

It’s important to note that the interpretation and application of these human rights principles can vary from one country to another, depending on the legal and cultural context. Some countries may have specific laws or regulations that impact interfaith marriages, and the degree to which these rights are protected may differ.

In a human rights context, the key principle is that individuals should be free to marry the person they love, regardless of religious differences, and they should not face discrimination or restrictions on that basis. Human rights organizations and advocates often work to protect the rights of individuals involved in interfaith marriages and challenge discriminatory practices where they exist.

From a human rights perspective, Supreme Court Decision Number 1977/K/PDT/2017 is normatively and substantively contradictory. Based on the UDHR and the Human Rights Law, Supreme Court Decision Number 1977/K/PDT/2017 is normatively inconsistent with the Human Rights Law. This decision is highly controversial compared to Supreme Court Decision Number 1400K/PDT/1986, which allows interfaith marriage between two parties who file for cassation, namely Andi Vonny Gani, a Muslim, and Andrianus Petrus Hendrik Nelwan, a Protestant Christian (Mahkamah Agung Republik Indonesia, 1986).

The Indonesian Supreme Court practices a ‘double standard’ in interfaith marriage cases. This research observes that when the practice includes a Muslim and a non-Muslim, the judges tend to rigidly enforce the law. However, for fellow non-Muslims who wish to apply for an interfaith marriage, such as a Catholic and a Protestant or others, there is more flexibility. This is certainly influenced by community pressure through social media, which prohibits interfaith marriage, specifically in the case of Decision Number 1977/K/PDT/2017. Furthermore, Indonesia is the country with the world largest Muslim majority, and the voice of the majority significantly determines the mindset of the judges.

Decision Number 1977/K/PDT/2017 affects the feelings of some Indonesian community. As a democratic country, the enforcement of human rights is essential, hence, the practice in interfaith marriage cases is not in line with the core of human rights. Manfred Nowak stated that there were four principles of human rights, namely universal, indivisible, interdependent, and interrelated (Auli, 2022). Therefore, this research evaluates that Decision Number 1977/K/PDT/2017 has revoked the individual’s right to select a life partner based on religious reasons.

3.3.2. Pluralism perspective

Interfaith marriage from a pluralism perspective falls in ijtihad, allowing for the possibility of new ijtihad to adapt to the ongoing societal context. Pluralists believe that marriage is merely a social and human relationship instead of a religious obligation (Monib & Nurcholis, 2018). According to Imam Muhammad Abduh, as quoted by Rasyid Ridha, the prohibition of marriage between a Muslim and polytheists (musyik), as mentioned in QS al-Baqarah/2:221, only applies to polytheists of Arabia (Ridha, 2011). Zainun Kamal argued that there was no basis in the Qur’an prohibiting Muslim women from marrying non-Muslim men. Since there is no prohibition, the evidence allows for the marriage of Muslim women with men of Ahl al-Kitab (Ghazali, 2018).

Pluralists assert that the prohibition of a Muslim marrying a non-believer (kafir) during the time of the Prophet Muhammad is more of a political nature than theological. The Qur’an texts were viewed as products of culture and reality, as expressed by Nasr Hamid Abu Zaid. The Qur’an is a cultural product and the existence of culture and reality cannot be separated from human language. Reality, culture, and language are historical phenomena, making the holy book a historical text (Zayd, 2013). Feminist advocate Musdah Mulia argued that the Qur’an prohibition of Muslim women marrying non-Muslim men was related to the context in which the verses were shown during a time of conflict. The prohibition is automatically lifted when the context of war no longer exists (Mulia, 2005).

Interfaith marriage is a subject of ijtihad and is bound to specific contexts, including the Islamic missionary. As a law created through the process of ijtihad, a new opinion may be formed, allowing Muslim women to marry non-Muslim men or interfaith marriages in a broader sense. This is in line with the spirit of the Qur’an: first, the plurality of religions is a natural phenomenon that cannot be avoided. Allah has mentioned the heavenly religions, which bring forth righteous deeds rewarded in the afterlife (QS al-Baqarah/2:62). Furthermore, Allah explicitly mentions that differences in gender and ethnicity are signs for people to understand one another (QS al-Hujurat/49:13). Second, the purpose of marriage is to build al-mawaddah (the bond of love) and al-rahmah (the bond of affection). Amid fragile interfaith relationships, the practice can be a means to enhance tolerance and understanding among believers, starting from the bond of love and affection woven into harmony and peace. Third, the spirit brought by Islam is liberation, not restraint. The stages outlined by the Qur’an, starting from the prohibition of marriage to polytheists and then allowing the practice with the Ahl al-Kitab, represent an evolutionary process of liberation (Madjid, 2004).

3.3.3. Legal certainty of interfaith marriage in Indonesia

The Supreme Court sent the Supreme Court Circular Letter (SEMA) Number 2 of 2023 to the heads of the Court of First Instance and Court of Appeal in order to provide guidance for judges when making decisions because the current legislation pertaining to interfaith weddings is unclear. It is envisaged that the publication of SEMA No. 2 of 2023 will address the legal uncertainty that the community has been concerned about, put an end to the debate over interfaith marriage, and ensure that all judges will follow the SEMA. The law does not contradict the principles of maqashid sharia; rather, it aligns with the notion of dharuriyyah maqashid sharia, which forbids interfaith marriage regulations (Khairina & Hidayati, 2023).

According to an additional support perspective, the Circular Letter No. 2 of 2023 is anticipated to offer legal clarification and possibly put an end to the dispute surrounding interfaith marriages in Indonesia. A number of activists contend that the Supreme Court’s ruling clearly violates people’s fundamental rights, including freedom of religion, and that the court’s ban on interfaith weddings has provoked discussions and demonstrations throughout society (Rusman et al., 2023).

In order to prevent legal smuggling in interfaith weddings, this requirement is crucial. An attempt was made to smuggle in an interfaith marriage by going abroad and then coming back to Indonesia to register it with the civil registration department. In the case of Jakarta’s Judgment Number 508/Pdt.P/2022/PN JKT.SEL, which allows applicants from diverse religious backgrounds who are legally bound by marriage to register their union at the South Jakarta Department Population and Civil Registration Agency, the civil registration officer’s skills are also decisive. Due to the registration officer’s carelessness in examining the couple’s religion, turmoil ensued in society (Firdaus, 2023).

Consequently, this regulation’s existence has resolved any legal gaps and ambiguities regarding judges’ and civil registration services’ interpretations. Furthermore, Indonesia has not yet fully embraced the possibility of interfaith marriages.

4. Conclusion

In conclusion, the prohibition of interfaith marriage was rooted in the restriction against individuals of diverse religions and scriptures (Ahl al-Kitab) due to the classification as polytheists. In this context, Supreme Court Decision Number 1977/K/PDT/2017 rejected the application of the Applicants because the concept violated the Universal Declaration on Human Rights (UDHR), Marriage Law, Compilation of Islamic Law, Fatwa of the Indonesian Ulema Council. However, this contradicted the Human Rights Law regarding an individual’s freedom to have beliefs and form a family. Third, the pluralism perspective showed ijtihad in formulating new opinions, such as allowing Muslim women to marry non-Muslim men or permitting interfaith marriage on a broader scale.

Due to the potential for judicial bias in the context of religious marriage in Indonesia, as demonstrated by the analysis’s findings, the Supreme Court Circular Letter (SEMA) Number 2 of 2023's presence has brought about legal clarity. This regulation closes legal loopholes that allow interfaith marriages to be smuggled in, such as those that occur abroad and are subsequently registered at the Indonesian civil registry office. It also takes into account the viewpoint of Islamic law and national law, both of which forbid interfaith marriages.

In this instance, the researcher believes that it would be highly fascinating to conduct more in-depth research on the effects that interfaith marriage couples’ lifestyles have on their children’s socialization and post-marital life. This seeks to assess all current policies in which Indonesia and the global community are entitled to the same rights as people and live in plurality.

Authors contributions

The authors have divided the contribution, namely:

1. M. Thahir Maloko for giving the substantial contributions, conception, and design of the research.

2. Sippah Chotban in the analysis of the data.

3. Muhammad Ikram Nur Fuady, in revising the intellectual content.

4. Hasdiwanti in the drafting of the paper.

Availability of data

The data that support the findings of this study are openly available in

1. [Supreme Court of Republic of Indonesia Sentences Repository] at [https://putusan3.mahkamahagung.go.id/direktori/putusan/4fa021c34f84846c0d0257ddbbce60f9.html], reference number [1977 K/Pdt/2017].

2. [Perkawinan Beda Agama Pasca Keluarnya Surat Edaran Mahkamah Agung (SEMA) Nomor 2 Tahun 2023 Ditinjau dari Perspektif Maqashid Syariah] at [https://ejournal.unisnu.ac.id/JSHI/article/view/5308], reference number [155/Pdt.P/2023/PN.Jkt.Pst].

3. [Interfaith marriage goes wrong: Belle Kendrick Abbott’s Leah Mordecai] at [https://link.springer.com/article/10.1007/s11059-022-00676-4], reference number [10.1007/s11059-022-00676-4].

4. [Kontroversi Perkawinan Beda Agama di Indonesia] at [https://shariajournals-uinjambi.ac.id/index.php/al-risalah/article/view/466], reference number [10.30631/alrisalah.v11i02.466]

5. [The Legalization of Interfaith Marriage in Indonesia (Between Universalism and Cultural Relativism)] at [https://esj.eastasouth-institute.com/index.php/eslhr/article/view/52], reference number [10.58812/eslhr.v1i02.52]

6. [Interpretation of Interfaith and/or Belief Marriage by Judges: Disparity and Legal Vacuum] at [https://jurnalkonstitusi.mkri.id/index.php/jk/article/view/jk2035], reference number [10.31078/jk2039]

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

M. Thahir Maloko

M. Thahir Maloko graduated his Bachelor of Religious Justice (1989) and Master degree of Islamic Law (2002) from the Universitas Islam Negeri (UIN) Alauddin Makassar, Indonesia. He also graduated the same university in 2015 with a doctorate in Islamic law. Currently, he works as a lecturer at UIN Alauddin Makassar teaching Law Fraud and Sharia. Aside from that, he authored a study titled “Joint Property in Polygamous Marriages” and continues to contribute to a number of scientific journals.

Sippah Chotban

Sippah Chotban earned a Bachelor’s degree (1977) in Arabic Literature and Master Degree (1997) in Law at the Universitas Islam Negeri (UIN) Alauddin Makassar, Indonesia. Recently, she is a lecturer at the Faculty Sharia and Law, Universitas Islam Negeri (UIN) Alauddin Makassar. She is also active in conducting research with the latest research title “Marriage Creates the Samara Family” and is also active in writing in various scientific journals.

Muhammad Ikram Nur Fuady

Muhammad Ikram Nur Fuady is a lecturer in the department of law, faculty of Sharia and law at Universitas Islam Negeri (UIN) Alauddin Makassar. The author is active in writing books, research journals, and is an editor and reviewer of several research journals. He is also active in several professional organizations in the field of criminal law in Indonesia.

Hasdiwanti

Hasdiwanti is the best graduate of the Law Department of UIN Alauddin Makassar and Hasanuddin University, and an alumnus of the national delegation of the 23rd supreme court moot court in Semarang.