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Abstract
This article examines the impact of anti-Sharia legislation in the United States. It discusses what sharia law is generally, noting that particular applications and interpretations will vary depending upon jurisdiction and location, and looks specifically at the contexts in which sharia is observed in the US and considered by US courts. It examines two different types of anti-sharia legislation – sharia-specific and facially neutral – concluding that some of such laws and bills are unconstitutional, many are unwise because they can negatively impact businesses and the enforcement of US laws and judgments overseas, and all are unnecessary because the US legal system already possesses the necessary tools to block any use of sharia that would violate a party's constitutional right or violate public policy. The article concludes by noting that although anti-sharia legislation and the supporters of such legislation tend to equate sharia observance with dangerous and anti-American tendencies, the debate over such legislation is a prime example of how Muslims in the US are in fact actively engaging and working within the US political and legal systems.
Notes
1For example, in the debate over the use of Islamic arbitration tribunals in Canada, both proponents and opponents of such tribunals spoke of sharia as a legal code “that was somehow fixed and unchanging”; F Bhabha, ‘Between Exclusion and Assimilation: Experimentalizing Multiculturalism’ (2009) 54 McGill Law J 82.
2There are four main schools traditionally associated with Sunni Islam: Hanafi, Shafi'i, Maliki and Hanbali. Shi'ite Muslim groups have their own legal schools; generally, see DJ Stewart, Islamic Legal Orthodoxy: Twelve Shiite Responses to the Sunni Legal System (University of Utah Press, Salt Lake City 2007); WB Hallaq, The Origins and Evolution of Islamic Law (Cambridge University Press, Cambridge 2005) 151.
3 15A Am. Jur. 2d Common Law (2011).
4Michigan, for example, has never had the death penalty, whereas Texas leads the nation in the number of executions performed under state authority (although Oklahoma leads when it comes to execution per capita). ‘State Execution Rates 1976–2011’, Death Penalty Information Center <http://www.deathpenaltyinfo.org/state-execution-rates> accessed 22 October 2011.
5One can, of course, take the position that the death penalty is immoral and that the Texas and Oklahoma legal systems are therefore indeed “wrong.” However, this is a purely moral judgment and is similar to potential disagreements Muslims may have over the moral superiority of one interpretation of sharia over another.
6‘Lebanon’ (last modified 2002) Islamic Family Law <http://www.law.emory.edu/ifl/legal/lebanon.htm#text> accessed 22 October 2011. This is the case, for example, in Lebanon, which has both Sunni and Shi'i Muslims.
7Some Muslim jurists divide the rules of sharia into two major categories: ‘ibadat (worship, devotional practices) and mu'amalat (civil transactions); e.g. MH Kamali, Shari'ah Law: An Introduction (Oneworld Publications, Oxford 2009) 17. Other scholars view sharia as being divided into five main categories: adab (behavior and morals), ‘ibadah (ritual worship), i'tiqadat (beliefs), mu'amalat (transactions), and ‘uqubat (punishments); e.g. Q Rashid, ‘Shari'ah Ban Violates Muslim, Jewish, and Christian American Civil Liberties’ (2011) Karamah <http://www.karamah.org/wp-content/uploads/2011/12/Shariah-and-Civil-Rights-Qasim-FINAL.pdf> accessed 19 March 2011.
8HH Donin, To Be a Jew: A Guide to Jewish Observance in Contemporary Life (Basic Books, New York, NY 2001) 29.
9This was the case in Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Inc., 866 A.2d 1 (Del. 2005).
10 Chaudry v. Chaudry, 159 N.J. Super. 566, 388 A.2d 1000 (App. Div. 1978); Amin v. Bakhaty, 2001-1967 (La. 10/16/01); 798 So. 2d 75.
11 44B Am. Jur. 2d, International Law § 8 (2012).
12 Bakhaty, 798 So.2d 75, Egyptian law; Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994) Palestinian (Gaza) law; but courts will also enforce a sharia court's custody decree if it finds it does not violate public policy, e.g. Hosain v. Malik, 108 Md. App. 284, 671 A.2d 988 (1996).
13KM Moore, ‘Muslims in Prison: Constitutional Protection of Religious Liberty’ in Al-Mughtaribun: American Law and the Transformation of Muslim Life in the United States (State University of New York Press, New York, NY 1995) 69–102.
14This is part of the so-called “sincerity test,” which requires courts to engage in “some measured inquiry into the [plaintiff's] claims of faith” and their sincerity in order to protect the court from “from fraudulent of sham claims under the free exercise clause”; J Witte Jr, Religion and the American Constitutional Experiment (Westview, Boulder, CO 2005) 146.
15 Odattala v. Odattala, 810 A.2d 93, 95 (Ch. Div. 2002), dowry contract; People ex rel. Muhammad v. Muhammad-Rahmah, 682 N.E.2d 336 (Ill App. Ct. 1997), ecclesiastical dispute.
16 Evans v. Wilson, 856 A.2d 679, 686 (Md. 2004) (holding a Muslim marriage ceremony without a marriage license met a statutory requirement that a couple “participated in a marriage ceremony with each other” for purposes of determining whether a paternity test was in the best interests of a child born after that marriage).
17 State v. Al-Hussaini, 579 N.W.2d 561, 562 (Neb. Ct. App. 1998).
18 S.D. v. M.J.R., 2 A.3d 412 (N.J. Super. 2010).
19Ibid, 2 A.3d at 418.
20Ibid., 2 A.3d at 422 (N.J. Super. 2010).
212010 Tenn. Pub. Acts 983; 2010 La. Acts 714; Ariz. Rev. Stat. § 12-3102 (2011) (West); 2012 S.D. Sess. Laws 1253 (signed into law Mar. 12, 2012); OK Const. § 1 art. 7 (amended by Oklahoma State Question 755 (2010)).
22 Awad v. Ziriax, 754 F. Supp. 2d 1298 (W.D. Okla. 2010) aff'd, 670 F.3d 1111 (10th Cir. 2012).
23Ibid., 754 F. Supp. 2d at 1307 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532–533 (1993)).
24U.S. Const. art. VI, § 1, cl. 2.
25U.S. Const. art. I, § 10, cl. 1 (“no State shall … pass any … Law impairing the Obligation of Contracts, ….”); e.g. Lauritzen v. Larsen, 345 U.S. 571, 588–589 (1953) (stating “Except as forbidden by some public policy, the tendency of the law is to apply in contract matters the law which the parties intended to apply.”).
26“Full Faith and Credit shall be giving in each State to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const. art. IV, § 1.
27H.B. 2582, 50th Leg., 1st Reg. Session (Ariz. 2011). This particular bill has not passed in Arizona; in March 2011 it was held in committee. However, the law recently passed in South Dakota similarly avoids singling out sharia, stating: “No court, administrative agency, or other governmental agency may enforce any provisions of any religious code”; 2012 S.D. Sess. Laws 1253.
28“Karma” seems a rather odd addition to the list. There is indeed a “law of karma” that is central to Hinduism, Jain, and Buddhist thought; however, it basically states that “all actions have consequences which will affect the doer of the action at some future time”; BR Reichenbach, “The Law of Karma and the Principle of Causation” (1988) Philos East West 38 (October) 399. As such, it would seem difficult to legislate against or exclude from a courtroom.
29 Lukumi Babalu Aye, Inc., 508 U.S. at 532 (stating “At a minimum, the protections of the Free Exercise Clause pertain in the law at issue discriminates against some or all religious beliefs ….”).
30S.B. 1028, 107th Leg., 1st Reg. Sess. (Tenn. 2011); for the original text, see <http://www.capitol.tn.gov/Bills/107/Bill/SB1028.pdf> accessed 22 October 2011.
31For example, B Smietana, ‘Tennessee Bill Would Jail Shariah Followers’ (23 February 2011) Tennessean, accessed 22 October 2011, quoting Imam Mohamed Ahmed of the Islamic Center of Nashville: “What do you mean, really by saying I can't abide by Shariah law? Shariah law is telling me don't steal. Do you want me to steal and rob a bank?” <http://www.usatoday.com/news/nation/2011-02-23-tennessee-law-shariah_N.htm>.
322011 Tenn. Pub. Acts 497 <http://state.tn.us/sos/acts/107/pub/pc0497.pdf> accessed 22 October 2011.
33Numerous articles have been written about David Yerushalmi, outlining not just his anti-sharia crusade, but his extreme views on how to deal with illegal immigrants (lock them in “special criminal camps” for three years before deportation), “liberal” Jews (“the leading proponents of all forms of anti-Western, anti-American, anti-Christian movements” who are destroying “their host nations like a fatal parasite”), and race (African-Americans are a “relatively murderous race killing itself,” and idea that “racial differences included innate differences in character and intelligence” likely right); Anti-Defamation League, ‘David Yerushalmi: A Driving Force Behind Anti-Sharia Efforts in the U.S.’ (2011) <http://www.adl.org/main_Interfaith/david_yerushalmi.htm> accessed 22 October 2011. Also A Elliott, ‘The Man Behind the Anti-Sharia Movement’ (30 July 2011) New York Times, <http://www.nytimes.com/2011/07/31/us/31shariah.html?pagewanted=all> accessed 22 October 2011.
34American Public Policy Alliance, ‘Legislation > American Laws for American Courts’ <http://publicpolicyalliance.org/?page_id=38> accessed 14 October 2011.
35C Stein, ‘Judiciary Committee Hears Alaska Foreign Law Bill’ (30 March 2011) Anchorage Daily News <http://www.adn.com/2011/03/30/v-printer/1783910/judiciary-committee-hears-alaska.html> accessed 18 October 2011.
36 Political Insider Blog, Ajc.com, blog entry by J Galloway, ‘Two Bills to Ban Sharia Law in Georgia Courts’ (8 February 2011) <http://blogs.ajc.com/political-insider-jim-galloway/2011/02/08/a-bill-to-ban-sharia-law-in-georgia-courts> accessed 22 October 2011.
37 Mlive.com, blog entry by J Oosting, ‘Again? Texas Legislator Claims Dearborn Home to Creeping Sharia, Authors Bill to “Protect” His State’ (14 April 2011, updated 15 April 2011) <http://www.mlive.com/news/detroit/index.ssf/2011/04/this_again_texas_legislator_cl.html> accessed 19 October 2011.
39See note 35.
38The version of the bill available on the American Public Policy Alliance's website in October 2011 differed from an earlier one posted in March 2011 by the addition a suggested introductory finding to the bill that “it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or the United States …” as well as by the addition of sections creating explicit carve-outs for corporations, ecclesiastical bodies, and treaties.
40These bills may also run afoul of the First Amendment to the extent that they can be found to be targeting religion in spite of their facially neutral language; Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 534.
41 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 612 (1979).
4216 Am. Jur. 2d Constitutional Law § 53 (2011) (“No state law or public policy of a state can be allowed to override the positive guarantees of the Federal Constitution.”)
43For example, Hirsh v. Hirsh, 4 A.D. 3d 451, 453 (N.Y. App. Div. 2004) (in invalidating the results of a divorce proceeding held in a rabbinic tribunal, the court stated that “an arbitration award that deprives a party of a constitutional right to seek redress or protection in a civil or criminal matter is against public policy.”).
44T Lockette, ‘Legislation Would Ban Islamic Law in Alabama Courts’ (4 March 2011) Anniston Star <http://www.annistonstar.com/pages/full_story/push?article-Legislation+would+ban+Islamic+law+in+Alabama+courts-%20&id=12157691&instance=recentComments> accessed 22 October 2011. State Senator Allen also was unable to point to examples of Muslims trying to have sharia recognized in his state's courts, stating, “It's not about what's happening right now. … I'm thinking about 10 years down the road, 20, 30, 40. Time has an effect on these things, and I'm thinking about the future.”
45Facially neutral bills that to not expressly use the term “sharia” of course have no definition of the term, but even some sharia-specific legislation also fails to include a definition. For example, Arizona H.B. 2582 failed to include any definition of the term, and the actual text of Oklahoma's Save Our State Amendment also did not include a definition, although the state's Office of Attorney General required that the one be included on the ballot, which stated simply: “Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed”; letter from W. A. Drew Edmondson Attorney General to M. Susan Savage, Secretary of State, Hon. Glenn Coffee, Senator President Pro Tempore, Hon. Chris Benge, Speaker of the House of Representatives, 24 June 2010, filed with Oklahoma Secretary of State. The definition of sharia in the Alabama bills sponsored by State Senator Allen, for example, used a definition lifted almost verbatim from the Wikipedia entry on “Sharia”; Lockette (n 45).
46Tennessee S.B. 1028 §39-13-903(4).
47Or even those who are misidentified as Muslims, such as is often the case with Sikhs who wear a turban; MI Ahmad, ‘A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion’ (2004) 92 (5) Cal L Rev 1278 (noting that “[b]oth individual acts of hate violence and governmental racial profiling have helped to create a new racial construct: the ‘Muslim-looking’ person,” and that the “racial dimension of the construct allows it to capture not only Arab Muslims, but Arab Christians, Muslim non-Arabs (such as Pakistanis or Indonesians), non-Muslim South Asians (Sikhs, Hindus), and even Latinos and African Americans, depending on how closely they approach the phenotypic stereotype of the terrorist”); NPR.com, blog entry by D Folkenflik, ‘NPR Ends Williams’ Contract after Muslim Remarks' (21 October 2010) <http://www.npr.org/templates/story/story.php?storyId=130712737> accessed 22 October 2011.
48 American Thinker, blog entry by P Geller, ‘The ABA's Jihad’ (22 February 2011) <http://www.americanthinker.com/2011/02/the_abas_jihad.html> accessed 22 October 2011.
49 ABAnow.org, House of Delegates Resolutions, ‘Opposes Blanket Provisions on International Law’, ABA House of Delegates Resolution 113A, adopted 2011 <http://www.abanow.org/2011/07/2011am113a> accessed 22 October 2011; ABA.org, Press Release, ‘Critical Canadian & US Legal Issues Explored at ABA Annual Meeting in Toronto Aug. 4–9’ (22 July 2010) <http://www.abanow.org/2011/07/critical-canadian-us-legal-issues-explored-at-aba-annual-meeting-in-toronto-aug-4-9> accessed 22 October 2011.
50For example, ILSA.org, International Law Weekend 2011, Panel Discussion (with panelist Abed Awad along with non-Muslim speakers), ‘The Anti-Shari'a Movement – Unconstitutional Discrimination or Homeland Security’ <http://www.ilsa.org/conference/ILW.php> accessed 22 October 2011; Karamah Town Hall Meetings on Islam, Shari'ah and Religious Freedom at the Schomburg Center for Research in Black Culture, 17 October 2011, and Islamic Center of Long Island (featuring various Muslim lawyer panelists along with non-Muslim panelists), 2 October 2011; New York Law School (featuring prominent law professors and lawyers, both Muslim and non-Muslim), ‘Sharia in America: Principles and Prospects’ (15–26 August 2011).
51For example, The Blog, Huffington Post, blog entry by SA Jackson, ‘Sharia in America: How Religious Laws Change’ (18 October 2010) <http://www.huffingtonpost.com/sherman-a-jackson/sharia-and-books_b_763592.html> accessed 22 October 2011.
52For example, the DC branch of the Muslim Public Affairs Council hosted a forum on Capitol Hill entitled “A Solution in Search of a Problem: The Impact of Anti-Sharia Bills in America,” which included a rabbi and the Director of the ACLU; Muslim Public Affairs Council, ‘Join MPAC-DC on June 20 for Special Forum on Anti-Sharia Bills’ (20 June 2011) <http://www.mpac.org/events/join-mpac-on-june-20-for-special-capitol-hill-forum-on-anti-sharia-bills.php> accessed 19 March 2012.
53 American Islamic Leadership Coalition, Press Release, ‘American Muslims Speak Out Against the Enforcement of Shari'ah Law in America’ (17 September 2011) <http://americanislamicleadership.org/AILC_Response_MI> accessed 19 March 2012.
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