November 18, 2010

Who’s Afraid of the Big, Bad Sharia?

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Over the past couple weeks, Islamophobia and what one might call “Shariaphobia” have been gaining ground with right wingers in a terrifying way. To provide some background, Sharia law is the religious law governing the life of Muslims, and its principal sources are the Qur’an and the hadith (sayings and deeds of the Prophet Muhammad). Most of the Sharia deals with the minutia of daily life, including how and when to pray, hygienic matters and marital relations.

Two weeks ago, 70 percent of Oklahomans approved Oklahoma State Question 755, which added an amendment to the state constitution preventing Oklahoma courts from “looking to the legal precepts of other nations or cultures.” The amendment specifically prohibits consideration of Sharia law. Ironically enough, the same politicians who supported this amendment also voted to place a monument to the Ten Commandments on state capitol grounds.

Regardless of whether this amendment is upheld, this incident brings into sharp focus a growing issue in the United States. Conservative lawmakers are growing ever more concerned about the presence of Sharia law in the U.S.. Their arguments beg the question: Why would anyone with an understanding of constitutional law be worried about Sharia law taking hold of the American legal system?

The traditional liberal response is to say that these arguments and ballot measures merely represent right-wing fear mongering — fueling the fire of Islamophobia and giving them political capital to wage illegitimate wars and enact paternalistic national security legislation. But instead of responding to the “Sharia is coming!” threat with “Sharia isn’t really coming, you idiot,” I’d like to examine what would happen if Sharia law gained some sort of a foothold in the U.S.

In most Muslim-majority countries, Sharia law is only used to govern matters of family law and some contractual matters. Most of these countries have secular courts to deal with general criminal and civil matters, and the secular courts also handle appeals of Sharia court decisions. Two notable countries with Sharia courts that do not have Muslim majorities are India and Israel. Very few Muslims in these countries are calling for the establishment of an Islamic state, but surely their “Islamic threat” is more imminent, given that Sharia has already been permitted.  Additionally, in the U.K. there are nearly 100 Sharia tribunals settling family and financial disputes that can be given full legal effect when approved by national courts.

Shariaphobic American lawmakers object to allowing the use of Sharia in any context. For example, Newt Gingrich recently endorsed a law ensuring no court will ever rely on Sharia to make decisions about American law. He indicated that there were many “stealth jihadis” in the U.S. who would use political and intellectual tools to institute an Islamic state. Some legal scholars have defended this position by asserting that no religion or religious law should have any effect on the U.S. legal system because it would violate the separation of church and state.

It’s curious, then, that these opponents fail to raise even the slightest objection to Beth Din, a system of rabbinical arbitration tribunals that apply Jewish law in matters including divorce, kosher certification and conversion to the Jewish faith. Beth Din has been active in the United States for more than 50 years.

Selectively determining which religious courts should be given legal effect undermines the First Amendment guarantee of freedom of religion.

Shariaphobes don’t stop with incoherent ramblings about the imminent threat of Sharia law. During the Nevada Senate race, Republican candidate Sharron Angle declared that Dearborn, Mich. and Frankford, Texas were being taken over by Sharia law — the process had already begun. Leaving aside the fact that Frankford, Texas hasn’t existed for decades, there was no truth to Ms. Angle’s statement, and thankfully she lost the election. One recent anti-Sharia intellectual attacked Sharia as un-American, saying it “found the U.S. Constitution suitable for toilet paper.”

So what would really happen if Sharia courts were allowed in the U.S.? Nothing. No one would use the Constitution in lieu of Charmin. No one would overthrow the U.S. government and install a caliphate. Nothing. Well, that’s not exactly true: American Muslims would have the opportunity to have familial and contractual disputes settled by the religious principles in which they steadfastly believe, while domestic secular courts would still serve as a check against any extralegal activity.

Passing anti-Sharia laws has nothing to do with the First Amendment or a defense against the impending Islamic threat. Rather, the real message of these laws is that religious intolerance, especially of Islam, remains a serious problem in America. We must be incredibly wary of Shariaphobia and, by extension, Islamophobia; alienating followers of the world’s second-largest religion because a few misguided individuals have committed atrocities in that religion’s name will leave America a divisive and more dangerous place. And frankly, that is un-American.

Chuck Guzak is a second-year law student and the Associate Editor of the Cornell Journal of Law and Public Policy. He may be contacted at cmg258@cornell.edu. Barely Legal appears alternate Fridays this semester.

Original Author: Chuck Guzak