By Abed Awad
On May 21 Kansas Governor Sam Brownback signed legislation prohibiting judges in the state from considering foreign law in their rulings. The law declares that any court decision will be considered void if it relies “in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the…decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.”
The real target of the law goes unnamed. “This [bill] doesn’t say ‘Sharia law,’” Republican State Senator Chris Steineger said in a speech that condemned the legislation for discriminating against 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.”
The Kansas law is hardly unique. Since 2010, when Oklahoma voters first passed a constitutional amendment prohibiting judges from considering international law in their decisions, two dozen states have proposed or passed similar legislation. (The Oklahoma statute was struck down this past January, with a federal court ruling that lawmakers failed to “identify any actual problem the challenged amendment seeks to solve.”) Richard Thompson, a former Michigan prosecutor and president of the right-wing Thomas More Law Center—whose website cites “Confronting the Threat of Islam” as a key part of its advocacy—recently admitted that “Sharia law is the thing people think about” when it comes to such bans.
Sharia, or Islamic law, is a complex system of moral codes that governs all aspects of Muslim life. More than simply “law” in the prescriptive sense, it is also the methodology through which Muslims engage with foundational religious texts to search for the divine will. For devout Muslims, Sharia governs everything from the way they eat to how they treat animals and protect the environment, to how they do business, how they marry and how their estate is distributed after death. Although the emergence of the nation-state did away with the premodern methodology of Sharia, its current manifestations are either a source of legislation or actual state law in many Muslim countries.
From a legal perspective, the wave of anti-Sharia legislation should be much ado about nothing. Sharia is as much a threat to our Constitution as Bible verses calling for the stoning of adulterers or the genocidal directive in Deuteronomy to leave “alive nothing that breathes.” Like the Old and New Testaments, Sharia has its own conflicts and tensions with modern conceptions of gender equality and citizenship. To suggest that banning Sharia or the Bible is the only way to ward off the stoning of women or the execution of apostates is clearly, maliciously false.
Yet support for such bans has come from the highest political spheres. Like Reagan’s dire rhetoric on communism, warnings of a looming Islamic takeover have come from Republicans running for president. “I believe Sharia is a mortal threat to the survival of freedom in the United States and in the world as we know it,” Newt Gingrich said in July 2010. Michele Bachmann declared that Sharia “must be resisted across the United States,” and Herman Cain condemned the “attempt to gradually ease Sharia law and the Muslim faith into our government.”
However absurd, the notion that radical Muslims are trying to take over the country seems to be catching on. A 2011 poll by the Public Religion Research Institute showed that 30 percent of Americans believe Muslims want to establish Sharia in the United States. The percentage was even higher—52 percent—among those who said they most trust Fox News.
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Apart from stoking Islamophobia, such anti-Sharia bills stand to have a negative effect on the legal system in states that embrace them, altering the routine decisions made in US courts every day.
The true story of Sharia in American courts is not one of a plot for imminent takeover but rather another part of the tale of globalization. Marriages, divorces, corporations and commercial transactions are global, meaning that US courts must regularly interpret and apply foreign law. Islamic law has been considered by American courts in everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, and the awarding of damages in commercial disputes and negligence matters.
As an attorney, consultant or expert witness, I have handled more than 100 cases involving components of Sharia. In a case I tried in 2002, Odatalla v. Odatalla, a New Jersey couple had signed an Islamic marriage contract consistent with their cultural traditions. When the wife filed for divorce, she asked the court to enforce the mahr, or dowry provision, in her contract, which called for the husband’s payment of $10,000 upon the dissolution of their marriage. Superior Court Judge John Selser found the marriage contract valid under New Jersey law, concluding, “Clearly, this court can enforce a contract which is not in contravention of established law or public policy.”
In a 2003 case involving Exxon Mobil and a Saudi oil company, the parties had agreed as part of a commercial transaction that Saudi law would govern any potential disputes. After the Saudi company sued its former business partner, Exxon Mobil, the Delaware Superior Court heard testimony on Saudi law, which applies traditional Sharia, and the judge instructed the jury to base its decision accordingly. The jury returned a $400 million–plus verdict in favor of Exxon Mobil and against the Saudi firm.
Finally, in a more recent case I was involved in, a state judge declined to recognize a Syrian court order that would have transferred the custody of a child to her father because of the mother’s remarriage. The judge reasoned that remarriage alone is not sufficient to transfer custody. Far from deferring to judgments from foreign countries, US courts regularly refuse to recognize such orders due to the constitutional and due-process implications.
Had an anti-Sharia ban been in place in these courts, Exxon could not have won its verdict, nor would the wife in Odatalla have been able to enforce her marriage contract. The ban would have stripped those judges of their ability to fully and fairly consider the cases. For litigants in states where such a ban exists, these statutes are an unconstitutional infringement of the people’s freedom of contract, free exercise of religion and right to equal protection. And what the anti-Sharia movement ignores is that, whether a US judge considers Sharia as a foreign law, as in the Exxon case, or as a way to better understand a dispute between parties, as in Odatalla, the extent of its applicability is always dictated by American law.
The Sharia scaremongers often rely on a single New Jersey case, S.D. v. M.J.R., as proof that Islamic law is seeping into our court system. In it, a wife sought a restraining order against her husband, alleging that he repeatedly beat and sexually assaulted her. The judge denied her request, holding that the defendant did not form the criminal intent necessary to commit the crime, because his genuine religious beliefs dictated that he was entitled to sexual relations upon demand. The ruling was wrong—both under state law and Sharia—and, not surprisingly, the New Jersey Appellate Court reversed it in 2010.
Yet S.D. v. M.J.R has become the poster child for the anti-Sharia movement. During a Republican presidential debate in June 2011, Herman Cain cited it as proof that “there have been instances in New Jersey…where Muslims did try to influence court decisions with Sharia law.” Oklahoma State Representative Rex Duncan, the lead sponsor of the Oklahoma Sharia ban, also cited the case after being unable to come up with a single case in which a court upheld Sharia in his own state.
It’s not just politicians who are citing Sharia as something to fear. Even Supreme Court Chief Justice John Roberts Jr., during oral arguments in the 2010 case Abbott v. Abbott, invoked the specter of Sharia, although the case had nothing to do with Muslims, Islam or Islamic law.
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The US constitutional system is built on managing the tensions in our pluralistic society between strong religious and secular principles. Whether through reasonable religious accommodation in the workplace or treating religion as a form of freedom of expression, our legal system is well equipped to balance conflicts between church and state.
Of course, the anti-Sharia crusade is not about the careful consideration of constitutional principles; it is about discrimination and bigotry. Take the Oklahoma anti-Sharia statute, which was written in a way that makes it clearly unconstitutional. In a New York Times profile of attorney David Yerushalmi—“The Man Behind the Anti-Shariah Movement”—Yerushalmi openly admitted that his anti-Sharia campaign had an ulterior motive that went beyond the statutes themselves. “If this thing passed in every state without any friction, it would have not served its purpose,” he said. “The purpose was heuristic—to get people asking this question, ‘What is Shariah?’” This question was meant to render Muslims suspect and their faith threatening to the rest of us.
In addition to trying to pass anti-Sharia laws across the country, Yerushalmi and his allies are busy clogging the federal courts with frivolous lawsuits. In one, filed on behalf of former US Marine Kevin Murray, Yerushalmi alleged that the Treasury’s bailout of AIG violated the establishment clause of the Constitution because of the corporation’s sale of Sharia-compliant financial products. The lawsuit argued that Sharia “forms the basis for the global jihadist war against the West and the United States” and “sends a message to [Mr. Murray], who is a non-adherent to Islam, that he is an outsider.” On June 1, the Court of Appeals for the Sixth Circuit rejected the lawsuit.
As November approaches, the anti-Sharia movement is likely to play a role in attempting to defeat President Obama. While a 2010 Pew national survey found that nearly one out of five Americans believed that Obama is a Muslim, among Republicans the number was around 31 percent.
The far-right rhetoric of the GOP, with its Islamophobic fictions highlighted during the primary debates, lives on in Mitt Romney’s foreign policy team. Walid Phares, one of Romney’s key terrorism policy advisers and a Fox News regular, has been touting the “mortal threat” posed by Islam. Commenting on the danger of Sharia last year, he said, “The most concerning to me is not the actual Sharia document. What is concerning to me are the networks that are using it.” Through front groups, NGOs and lobbying, he explained, these networks are not only spreading Sharia but seeking to exert political influence at home and abroad. “This influence that the Islamists have in the United States is an issue,” he said, “and it should be an issue raised in the debate, including in this very hot presidential contest this year.” In other words, fabricate a “mortal threat,” then stoke the flames of ignorance and hate in order to win elections—that’s the real truth behind the anti-Sharia movement.