By Daniel Mach and Jamil Dakwar
Religion News Service
NEW YORK (RNS) A discriminatory and wholly unfounded idea is taking root in state legislatures across the country: attempts to pass laws that would explicitly and unnecessarily ban state courts from applying or even considering Islamic, or Shariah, law.
One of the first, and worst, of these was a state constitutional amendment approved last year by Oklahoma voters. That measure has been temporarily blocked by a federal court, and the American Civil Liberties Union and the Council on American-Islamic Relations are seeking to have the measure struck down permanently.
The Oklahoma law, and others like it, contains prohibitions on "international law" and "foreign law," nonsensically conflating Shariah with foreign law. Other states, preferring not to wear their bigotry on their sleeves, don't mention Shariah law per se, instead referring only to bans on "international law." Their intent, however, is unmistakable.
In addition to the ugly implication that anything Islamic is inherently un-American, these efforts are rooted in the baseless idea that U.S. Muslims wish to impose Islamic law on American courts. Proponents of these misguided measures, which have been introduced in 25 states so far, clearly seek to ride the recent wave of anti-Muslim bias in this country.
Supporters would have us believe that these laws are designed to uphold the Constitution. In reality, these measures distort the protections already provided by the Constitution in ways that harm the rights of individuals, faith communities and businesses.
Rather than strengthen the Constitution, these measures violate religious freedom and undermine the independence of our courts. Laws like the Oklahoma amendment ignore the fact that there are instances -- such as in the execution of a will, or a dispute over religious property -- that require civil courts to consult religious law. Our existing legal system is well-equipped to determine when courts may properly reference religious law, and also when doing so would cross the line. Banning the consideration of a particular faith's laws entirely is not only discriminatory, but also impractical.
The seemingly more benign bans on considering "international" law also suffer from major constitutional flaws. The Constitution requires federal and state governments to honor ratified international treaties as U.S. law. The framers intended respect for international commitments,
declaring U.S. treaties to be included in the "supreme law of the land."
For two centuries, the U.S. Supreme Court has repeatedly held that "the domestic law of the United States recognizes the law of nations." Legislation that forbids courts from considering international or foreign law raises serious questions about the separation of powers and the independence of courts and judges.
Some of these measures also violate constitutional provisions that require states to respect and uphold each other's laws. If one state court enters a judgment in a business agreement between international corporations that involves consideration of another country's laws, other states must honor it. The Constitution flatly forbids any other outcome.
Respecting international law is more than just a gesture of goodwill to other nations. Consider the practical implications: If courts were unable to enforce the rights of foreign nationals who are arrested in the U.S. to have their home country's consulate notified, other countries might do likewise to Americans. Unless we wish to check our own rights at the customs gate when we travel abroad, courts must be permitted to extend the same rights to foreign nationals here in the U.S.
Want to get married in Aruba? Couples who are married outside the U.S. could come home to find that a state court could not recognize marriages conducted under Aruban law. Want to adopt a child from abroad? If you thought the adoption process was difficult now, think about what would happen if state courts were unable to consider foreign and international law.
Supporters of these laws will say that's not their aim. They will say they want to protect America from becoming the kind of place where women are stoned to death and religious extremists overrun our legal system. Yet the First Amendment already prohibits courts from adopting any kind of religious code as the law of the land. Last we checked, atrocities carried out in the name of religion will continue to be regarded by U.S. laws as the criminal actions that they are. No
religious justification will change that.
These laws are unnecessary and serve only to do two things: single out Muslims as second-class citizens and undermine the Constitution.
If supporters of these measures genuinely wish to protect the Constitution, they would do well to trust the framers' respect for international law and religious freedom -- and not trade away our most precious values for political advantage.
Daniel Mach is the director of the American Civil Liberties Union's program on Freedom of Religion and Belief. Jamil Dakwar is the director of the American Civil Liberties Union Human Rights program.