Judging by how Oklahoma voted in the recent election, one might conclude that despite its tiny Muslim population, Oklahoma was on the verge of becoming an Islamic caliphate in Middle America. The reality is of course far different. Oklahoma State Question 755, which passed, asked voters whether state courts should be forbidden "from considering or using Sharia Law." Similar legislation is being considered in Tennessee, and Louisiana recently became the first state to pass several bills banning international law from its courts. Although the Louisiana bills didn't mention shariah explicitly, they were apparently motivated at least in part by a similar distaste for Muslims and their religious law, and a desire to "protect" constitutional law. These constitutional law protectors appear, however, to be a little fuzzy on what constitutional law actually means, how it allows for various forms of religious arbitration and what the state can and cannot do to regulate religious freedoms.
In the discussion and debate surrounding Question 755, supporters in search of an example where the bogeyman shariah was permitted inside American courtrooms kept pointing to a New Jersey case where the court denied a restraining order to a woman who was sexually assaulted by her then-husband. The judge ruled that the husband did not have a "criminal desire to or intent to sexually assault" her as the husband was merely under the impression that he was exercising his prerogative as a husband under Islamic law. What's rarely reported, however, is that the decision was promptly overturned on appeal because the application of shariah, or the "cultural defense," conflicted with civil law.
This example is noteworthy not just because the decision was overturned because it got the law wrong, or that it is the only one of its kind, but because it is an atypical example of how shariah has made an appearance in American courtrooms. The typical cases are far from frightening. For example, arbitration under shariah law is permitted in the U.S., just like arbitration according to Christian principles or Jewish religious tradition is permitted, or according to any other set of rules two contracting parties may agree to. Indeed, prominent Christian groups like PromiseKeepers have long required Christian arbitration clauses in their contracts with vendors.
The crucial feature of any kind of arbitration is that an arbitrator, whether religious or not, has no ability to enforce the arbitral decision; only state or federal courts have that power. In deciding whether to enforce arbitral awards, civil courts first review whether the parties agreed to take part in the arbitration of their own free will. Courts also review the arbitral decision to ensure that arbitrators are neutral, and that the resulting arbitral decisions are neither grossly unfair nor undermine public policy. There are thus already an array of carefully crafted safeguards in place to protect individuals.
Despite the long-standing opportunity to enforce religious arbitral awards in American courts, Sharia arbitration is still very rare in comparison to other sorts of arbitration. And oddly enough for those who believe Sharia discriminates against women, in the case of divorce proceedings, some women turn to shariah arbitration to enforce rights that are not granted by civil law but are provided under shariah. Muslim women are guaranteed a mahr (dowry given to the wife as part of the Islamic marriage contract), which becomes due and payable in the event of a divorce if it has not been paid during or at the time of the marriage. Women getting a divorce sometimes choose to arbitrate under shariah law in order to enforce the payment of the mahr. The outcome of these cases has varied depending on state law. For example, a California court would not enforce a mahr because it violated state law regarding "profiteering from divorce." However, a court in New York enforced a mahr because it conformed to state statutory requirements. As these cases show, for decades state courts have been policing shariah arbitral awards for compliance with public policy.
A civil court's involvement with religious matters is, however, limited to cases where it can enforce civil law without deciding questions of religious doctrine or requiring individuals to conform to religious law. For example, in a New Jersey case that involved the regulation of kosher foods in keeping with principles of Orthodox Judaism, local government officials had implemented regulations to monitor merchants and ensure that they would keep kosher according to a particular school of Judaism. The state court held the system to be unconstitutional because government would take on an impermissible role of setting standards that were based on religious, not civil, law.
Although the court declined to use the civil law to enforce religious standards, it did suggest a constitutionally appropriate way to prevent kosher fraud by requiring "those who advertise food products as 'kosher' to disclose the basis on which use of that characterization rests." Such regulations would be permissible because the courts could enforce a civil contract between two parties without deciding on any questions of religious doctrine or requiring an individual to conform to a religious law. The rule in the kosher case applies equally to shariah: civil courts cannot decide religious questions.
The role of civil courts in determining matters that individuals choose to regulate according to religious law is an intricate one that the courts have already clearly answered. But are these finer issues of the religion-state relationship of any significance to the backers of anti-shariah measures like State Question 755? Or is the effort a combination of both political advantage-seeking and fear of Muslims -- not to mention just pure silliness? Sadly, the notion of shariah, or Islam, "taking over" America in a manner somewhat akin to the Seed Pods from The Return of the Body Snatchers seems to be infecting segments of the national political discourse, despite its inherent absurdity.
Follow Asma Uddin on Twitter: www.twitter.com/altmuslimah
Mike Ghouse: Sharia Law: Not in America
Sherman A. Jackson: Sharia in America: How Religious Laws Change
The American Spectator : The Sharia-Compliant American Left
Sharia law banned: Oklahoma to become first US state to veto ...
Sharia Law and the U.S. Constitution « The American Catholic
The War On Sharia Started Long Before You Ever Heard 'Ground Zero ...
Sharia law, courts likely on 2010 ballot » Local News » The Edmond Sun
Is Sharia Law Enforceable by American Divorce Courts? | eHow.com
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SQ755 is not anti-Islam, it is anti-Sharia law and there is a big difference between the two. No Muslims are against Islam but many oppose Sharia law (http://wwwÂ.aifdemocrÂacy.org/neÂws.php?id=Â6302)
A rhetorical question:
If we assume that SQ755 will be rewritten to meet Constitutional standards, and then assume that all the states will pass it with large margins, which part of the Muslim community, here and abroad, will be offended?
1) The part of the American Muslim community that should not be here in the first place (because they are colonists), and
2) the part of worldwide Islam that does not wish us well (Islamists).
Such an event would be our tardy answer to bin Laden's declaration of war on us in 1998. It would be our long delayed identification of the enemy's ideology--finally.
Nothing to do about war ...secularism ... it's about human beings
It's obvious that people don't understand how laws are made in America, even though we had cool songs and cartoons about it.
Yes, I'm only a Bill... and I'm sitting here on Capitol Hill...
those dangerous baptist,methodists, catholics, etc ... stoning their women in the streets for adultery ... "honor killings" ... killing folks for proselytizing ...
absolutely no differences between them and Sharia Law crowd ...
indeed...
The principles of Sharia--fairness, justice, etc. are the same as the principles of Christianity--and before anyone brings up stoning of adulterers, let me point out that not so many centuries ago stealing a loaf of bread was a hanging offense--in Christian Europe.
Become a fan Unfan
Christian missionaries live in other lands for the purpose of bring Christianity to those lands. Both Islam and Christianity--and all other religions as well--have a right to spread their message and beliefs, provided they do so by non-violent and non-coercive means.
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You really mean to say that a relatively small number of missionaries who go to set up a mission, not to become voting citizens and stay, is the equivalent of millions of Muslims seeking citizenship and permanent status?
I disagree with the whole idea of proselytizing, but your analogy is extremely poor.
In the post above you say: "The principles of Sharia--fairness, justice, etc. are the same as the principles of Christianity..."
Just as the Soviet Union and America shared some Constitutional similarities, the basic thrust of the two documents were opposite. All systems of law profess to support fairness and justice; the difference is in the definition of those terms.
Sharia and American law are incompatible in their basic approaches to fairness and justice. That's why Saudi Arabia and America are so different.
really?
Simple, right?
There is NO mandate for Muslims to implement Shariah in America by the American government.
In fact according to strong Islamic legal argument, its wrong to seek implementation of Shariah, especially partial Shariah in nonMuslim countries like America.
Those who seek to implement Shariah in America are misinformed.
But its ironic that America seeks its law to dominate the rest of the world.
Muslims in Britain who wish to convert to Christianity are living in fear of their lives because of Islamic apostasy laws....
Earlier this year, a Policy Exchange study found that 36 per cent of British Muslims aged between 16 and 24 believed those who converted to another religion should be punished by death.
Dr Nazir-Ali will speak out on behalf of Hannah and others suffering persecution for their beliefs in the UK...
The Bishop is expected to describe how sharia law in many countries, including parts of Britain, punishes apostasy with death and is viewed as treason by theocratic governments."
http://www.timesonline.co.uk/tol/comment/faith/article3006561.ece
Only constant vigilance will prevent these kind of things from happening in U.S.
Oklahoma law is the step in the right direction.
People of Oklahoma has taken an important step in that direction. Congratulations. Bravo!
That paragraph makes about as much sense as what you are writing in your posts. Keep chasing phantoms, that way you won't notice how much money has been stolen from you by banks and large businesses via the politicians they control with campaign donations.
If you have a problem with it, choose to live in a theocracy.
I think that is what they thought in the UK and other places in Europe. And all of a sudden, things look very different in some places...
http://www.cityofdearborn.org/images/stories/PDF/Government/Mayor/mayorletter07-09-2010.pdf
Peace to all.