Sharia Law Threat: Right-Wing Boogeyman

04/14/2011 11:32 am ET | Updated Jun 14, 2011

Frank Gaffney and his friends can relax: Sneaky Muslims aren't going to impose Sharia Law on the US and take away their bacon cheeseburgers. It's impossible.

But you'd never know that from what's pouring out of outfits like Gaffney's Center for Security Policy, from Fox News or from right-wing bloggers across the land, all of whom say the threat is real -- real enough to spawn 15 proposed state and federal laws against it.

Here's how Gaffney described what he calls the threat to the New York Senate's Homeland Security and Military Affairs Committee on April 8th: ."The best described, I believe, as a politico-legal-military threat whose express purpose is to have it imposed world-wide, subject to a theocratic ruler called a Caliph. That is of course a program that is completely at odds with our Constitution, our form of government, our way of life, our freedoms."

I'll admit that sounds pretty grim. Even if it does seem a lot like the threat of Global Communism I used to hear about as a kid.

The truth? Sharia is religious law, and no religious law can be imposed on the US without amending the Constitution -- twice -- to repeal both the opening clause of the First Amendment, and the Supremacy Clause in Article 6.

So how can Sharia Law be imposed on the US? No one seems to know. Or at least, nobody who's pushing the claim would talk to me about it, though they seemed eager to tell me how bad it would be.

These non-talkers included Gaffney's COO, Christina Brim, who even came to the phone to tell me she wouldn't talk to me; Rex Duncan, who sponsored an Oklahoma law last year forbidding Sharia Law from being used in the state; Newt Gingrich (famously afraid of "Islamic atheists"); the Thomas More Center; and NewsMax, Town Hall, and The National Review magazines, all of which have been vocal about the so-called danger but wouldn't explain why there's anything to it..

Meanwhile, the so-called examples of how Sharia Law is already being used in American courts are frauds. Take a look at them and you find out what they're talking about are arbitrations -- not trials under civil or criminal law. And two parties in an arbitration can agree to be bound by Star Fleet regulations without crossing the Constitution.

This includes the most recent so-called example of Sharia law being imposed on America, in Tampa, where in late March a judge ruled that Sharia could be applied in an arbitration over money between two parties--from the same mosque--only to be overruled the next day by a higher court. That event triggered a frenzy in the right wing blogosphere -- all, oddly, written almost exactly the same way.

The same goes for the so-called 85 Sharia Courts in England that are often raised as an example of how bad things already are: These are arbitration panels, conducted under the authority of the British courts -- not Sharia law courts.

And in fact, similar arrangements are a long-standing commonplace in America jurisprudence -- all of them operating under the authority of state and federal laws.

Until the 1920s, for instance, the legal system of the entire state of Utah was largely conducted in Bishop's Courts, operating under the authority of the Church of Latter Day Saints -- courts that are still in use in more limited ways. Native American reservations -- actually, sovereign nations -- govern themselves. So do religious communities like Kiryas Joel in Orange County, N.Y., a home to the Satmar sect of Hasidic Jews.

So what are Gaffney and friends talking about? No one knows, really. But that hasn't stopped 15 laws forbidding international laws, including Sharia Law, from being put before state legislatures and the US House of Representatives.

That count includes Duncan's Oklahoma law, which he called "...a first strike" to prevent something he admitted had never happened. That law was approved by 72 percent of Oklahoma voters in a referendum last November, but was then ruled unconstitutional under the First Amendment. It's now on appeal.

In response to that objection the anti-Sharia folks merely edited their language to forbid international law from being considered in US courts and dropping the Sharia reference. This includes one before the US House of Representatives, H.R. 973, proposed by Florida's Sandy Adams, whose office didn't return calls requesting comment.

There's only one problem here: Modern business is international, the parties to a contract can choose which laws govern their contract, and typically in any international deal, the laws that govern a contract include foreign laws.

So if, say, an Oklahoma company wanted to sell something to a company in Kuwait, Kuwati law could apply--and be honored in American courts, All these laws would do, says Avery Katz, who teaches contract law at Columbia Law School, is force the parties to conduct their business elsewhere--probably London, where the problem wouldn't exist. But, he adds, this could add extra costs to the deal, which could kill it altogether.

So, what's up here? You have to assume these lawmakers are smart guys. Certainly, Frank Gaffney and his ilk are smart guys. They have to know that as far as this issue goes, there's no there there. So why are they bothering?

Well, ginning up an empty issue like this does several things for them.

One is the reality of the news business. Even in the 24-hour news cycle, there's only 24 hours in a day, and every minute or column inch spent covering this is a minute or column inch not spent covering, say, how lobbyists are gutting the Dodds-Frank Bill and leaving the American financial system vulnerable to another disaster like 2007-2008.

Then there's the politics. "It's clearly an effort to stir the pot and keep the noise level up," says Matt Duss, a policy analyst with the Center for American Progress. "They just have to keep people freaked out about this even though they know it can never happen, and the Democrats have to respond."

And then, there's the money. Right wing politics is a business with a simple business plan: Sell people the idea they're under imminent threat, tell them you're fighting to stop it, and ask them for money. It's worked like a charm for the National Rifle Association.

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