Creeping Sharia or Conspicuous Islamophobia?

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“This [bill] doesn’t say ‘Sharia law,’” Republican Senator Chris Steineger said in a 2012 speech condemning a Kansas bill—banning foreign, international, and religious law—for targeting Muslims, “but that’s how it was marketed back in January and all session long—and I have all the e-mails to prove it.”

Since 2010, many state legislatures have continued to battle Sharia phantoms. Indeed, on 4 November 2014, Alabamians will vote on the American and Alabama Laws for Alabama Courts Amendment. If approved, this law will prevent Alabama courts from considering foreign, international, or religious law. When the proposal was first introduced in 2013, Reverend Richard Killmer, a Presbyterian minister and then Executive Director of the National Religious Campaign Against Torture, warned that this is not being pushed “with the public interest in mind, but with the intent of spreading fear and distrust toward our fellow citizens.” The bill failed, but Republican Senator Gerald Allen promptly reintroduced it with generic wording and without referring specifically to Sharia (loosely and imprecisely defined as Islamic law).

The Alabama ballot measure comes as the Ohio House Judiciary Committee considers House Bill 513 (HB 513), introduced by Republican Representative Matt Lynch earlier this year. “This covers Jewish law or Catholic canon law, but certainly, what I’m the most concerned about is Sharia law…” he told a crowd last summer. Supporters expect the Ohio bill to pass because they have backing from “both Democrats and Republicans who are interested in protecting the dignity of women.” Who can argue with that?

Ohio and Alabama are the latest of twelve American states to introduce such bills in 2014 so far. They all hope to join the seven that have already ostensibly banned the use of Sharia.

In striking down the first such legislation in Oklahoma in 2012, the United States Court of Appeals for the Tenth Circuit noted that proponents did “not identify any actual problem the challenged amendment sought to solve.” On the contrary, as documented by the Center for American Progress, the Brennan Center at NYU, the American Civil Liberties Union (ACLU), and others, such laws are creating new problems by distorting pre-existing constitutional protections, undermining judicial independence and marginalizing Muslims.

Historically, Americans have benefited from the ability to use foreign law under choice of law rules in business, as well as personal realms, when it served their interests. Domestic courts have obliged, provided that law was not contrary to federal or state public policy to enforce or uphold the foreign decision. Many of these legislative initiatives will alter the status quo in unexpected ways. Indeed, we have already had unintended consequences. In Missouri, for instance, adoption advocates had to lobby against such a bill because it threatened to interfere with international adoptions. Instead of abandoning the unnecessary bill, legislators amended it to exclude adoptions. We will not know the direct and indirect impact of such legislative initiatives until individuals and companies actually bring forth challenges when problems arise. In an attempt to address this inevitability, some of the bills—North Carolina and Florida, for example—expressly restricted the ban to the family law context.

Such patchwork and anticipatory solutions only reveal how proponents of such legislative initiatives are grasping for straws. Indeed, even in the context of private family disputes, the consequences may be counterintuitive. In August 2012, for instance, just one month after Kansas passed Senate Bill 79, a state court found its hands tied when Elham Soleimani sought the enforcement of the mahr (dowry) provision in her Islamic marriage contract. Her husband, Faramarz Soleimani, had agreed to pay 1,354 gold coins—valued at $677,000 at the time—in the event of divorce. Faramarz agreed to this at the time of the marriage, given that it was his second marriage and Elham was 24 years his junior. The Johnson City District Court refused to enforce Elham’s claim for various reasons, the most significant being the religious nature of the contract. In its 28 August 2012 ruling, the court concluded that enforcing the agreement would “abdicate the judiciary’s role to protect such fundamental rights, a concern that was articulated in Senate Bill No. 79.” Essentially, the court took the position that enforcing the Islamic contract would violate the foreign law ban and the separation of church and state doctrine under the Establishment Clause of the First Amendment of the U.S. Constitution. Elham lost her claim to her dowry thanks to the law, which Republican State Senator Susan Wagle introduced as “a vote to protect women.” Elham would surely beg to disagree.

Unnecessary Legislation

Religion and law ignite unique tensions in secular democracies. The U.S. is no different. Indeed, the First Amendment’s protection of religious freedom in the American Constitution is one of the most celebrated aspects of the American liberal tradition. Consistent with this, as confirmed by leading scholars, including Asifa Quraishi Landes, Michael A Helfand, Julie Macfarlane, and Eugene Volokh, people of all faiths have sought relief through the courts for religious liberty violations. Indeed, as the ACLU concluded, “…cases involving Muslims’ right to free exercise no more threaten the imposition of Sharia law than, for example, cases involving the rights of Christians pose a ‘Biblical threat’ to our courts.”

Even outside the context of religious liberty, the courts, as ultimate arbiters of law, are called upon to resolve tensions and determine rights and responsibilities pursuant to certain religious arrangements and settlements. American courts have traditionally recognized their ability to consider such cases provided they are able to adjudicate them using neutral principles of law. These types of cases also engage the notion of freedom of contract, the principle of comity, and public policy. Each of these has a long track record in the American legal tradition and, has served the nation well.

Anti-Sharia advocates have cited a number of cases to back their tenuous claim that Sharia is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy in the business as well as personal realms.

Effective governance in contemporary liberal societies require the balancing of an individual’s religious commitments and convictions with the state’s need to maintain general rules. Before and since the ban proposals, courts have taken different positions on law and religion questions and proposed different solutions based on long established and entrenched legal principles and practices.

This ground reality of case-by-case decision-making contradicts the creeping Sharia view. Indeed, Matthew Franck, a noted legal analyst at the conservative National Review, after reviewing the cases relied on by anti-Shariaadvocates to claim that American legal culture was being transformed, concluded:

Thirty-five years’ worth of American law, and we have a whopping seven cases in which some “foreign law” was honored (not even Sharia in every case), and not enough information even to tell if something truly unjust happened in any of the seven. In the other thirteen cases, Sharia-law principles were rejected either at trial or on appeal.

Islamophobia

The movement to ban foreign and/or religious law, according to the New York Times, is the brainchild of an Islamophobic lawyer, David Yerushalmi, who has been described by the Anti-Defamation League as having a record of “anti-Muslim, anti-immigrant and anti-black bigotry.” As the Times documents, after the Oklahoma “Save our State” measure was struck down as unconstitutional for singling out Islam, Yerushalmi turned his mind to draft a model statute known as “American Laws for American Courts” for the American Public Policy Alliance. With the help of its Islamophobic allies, the Alliance has managed to have more than 71 pieces of legislation adopt the language to date. The model law is silent on Islam, but as pointed out by Daniel Mach and Jamil Dakwar of the ACLU, their intent “is unmistakable.” They wrote:

… these efforts are rooted in the baseless idea that U.S. Muslims wish to impose Islamic law on Americans. Proponents of these misguided measures … clearly seek to ride the recent wave of anti-Muslim bias in this country.

 As outrageous as it may appear to anti-Sharia advocates, if constitutional rights to religious freedom, equal treatment, and freedom of contract are to have any real value, religious communities, including Muslims, must be guaranteed access to justice both within and outside of the court system. It would be un-American to insist that Muslims must always couch their claims in non-religious terms to obtain justice while others need not do so.

As the Center for American Progress, the Brennan Center, the ACLU and others have argued, the evidence is clear. There is no creeping Sharia overtaking the American legal system, but plenty of plain bigotry in the form of Islamophobia.

The judicial jihad (struggle) has merely reinforced American constitutional principles, and ensured that Muslims have access to the dockets as is the American way, nothing more.

 

Faisal Kutty is an Assistant Professor of Law and Director of the International LL.M. program at Valparaiso University Law School in Indiana and an Adjunct Professor of Law at Osgoode Hall Law School of York University in Toronto. His article  “Islamic Law in U.S. Courts: Judicial Jihad or Constitutional Imperative? “ is forthcoming in the Pepp. Law Rev., Volume 41 (Special Issue). He wishes to acknowledge research assistance from Leenat Jilani of the University of Windsor Law School. His articles have appeared in a number of publications around the word, including The Globe and Mail, Toronto Star, Montreal Gazette, Aljazeera, AlAhram Weekly, Arab News, Indian Express, etc. He also blogs at the Huffington Post. Connect with him on Linkedin or follow him on Facebook and Twitter | @faisalkutty. You can view and download some of his academic publications at SSRN.