The United States Supreme Court, W. Va. State Bd. of Educ. V. Barnette, 1943.
In 2000, Layla and Ahmed were married in an Islamic religious ceremony in Egypt. Last week, Layla filed for divorce in New Jersey and her husband moved to have the court throw out her divorce complaint alleging they were never legally married in the first instance. The judge presiding over the case must now determine whether there is any merit to the husband's claim. To do so, the judge would require expert testimony about Egyptian family law, which is largely based on Sharia.
A recently enacted amendment to the New Jersey Constitution bars the court from even considering or using Sharia when adjudicating cases. The court's failure to recognize Layla and Ahmed's 11 year marriage, however, would severely disadvantage Layla. For instance, she may not be legally entitled to the equitable distribution of marital assets they accumulated during the course of the marriage including the marital home, money in savings accounts, automobiles and timeshare.
How can the family court judge possibly render a just decision without referring to or considering Islamic law?
To make matters worse Ahmed verbally and physically abused Layla during the marriage. Towards the end of the marriage, the physical abuse was so bad that Layla was forced to seek medical treatment for her injuries at a nearby hospital where a nurse persuaded her to speak to the police and secure a restraining order.
In retaliation an incensed Ahmed contacted the immigration authorities informing them of Layla's presently undocumented immigration status. Upon receiving the tip U.S. Immigration and Customs Enforcement (ICE) agents picked up Layla. She was later detained at a nearby detention center with scores of other immigrants.
Following legal consultation with legal aid attorneys, Layla pursued legal permanent residency also known as a Green Card by filing an application with the immigration requesting relief under the Violence Against Women Act (VAWA). Indeed, VAWA provides that a battered immigrant spouse (like Layla) who is married to a U.S. citizen abuser (like Ahmed) may be permitted to legalize her status in immigration court.
To do so, however, Layla must prove that she was in fact legally married to Ahmed; here, the marriage is a Sharia-compliant one which transpired in Egypt. The immigration judge is prohibited from considering such evidence due to the newly enacted amendment to the New Jersey Constitution which bars even federal courts located in the state from considering or referring to Sharia when adjudicating cases. As a result Layla is confronted with potential deportation to Egypt.
How can the immigration court judge possibly render a just decision regarding Layla's immigration application as a battered spouse without considering or referring to Sharia?
In the meantime, a family friend posts Layla's bond allowing her temporary release from the detention center while her case is litigated. Layla successfully applies for employment authorization to financially support her children as she works to rebuild her life.
Layla responds to a job announcement on Craigslist for a sales representative with a large retail department store. During the interview, the manager disapproves of Layla's Islamic religious attire. Specifically, the supervisor takes issue with Layla's headscarf wrapped securely around her head. So, he advises that she would have to remove her headscarf to secure the position; alternatively, she can work in the backroom where her public exposure to possible clientele is not at issue. Layla left the interview in tears.
Layla pursues an employment discrimination claim against the retailer. In order to prevail in her case under federal and state discrimination laws Layla must prove that her adherence to the hijab is in accordance with a sincerely held religious belief and as such, deserving of accommodation under the law. The court, once again, is prohibited from considering any expert testimony regarding Sharia or Islamic law pursuant to the anti-Sharia ban.
How can the judge render a just decision regarding Layla's employment discrimination claim without considering or referring to Islamic law?
Layla and Ahmed are fictional characters but the the circumstances detailed above are not. While no such legal measure banning consideration of Sharia in state and federal courts has yet been introduced in New Jersey, such legislative initiatives have already passed in Oklahoma, Louisiana and Tennessee.
The legal snapshots depicted above -- divorce, immigration status, employment discrimination -- are common to the courts and the American Muslim community. There are of course many additional scenarios necessitating the courts' consideration of principles of Islamic jurisprudence such as recognizing custody decrees, probating wills and applying international business contracts. Under the anti-Sharia legislative initiatives spreading across the country, state and federal courts will be unable to adjudicate disputes or perform everyday judicial functions as highlighted above.
The degree of disruption caused by any particular anti-Sharia bill or amendment depends primarily on its language. Consider the language of Tennessee bill (SB 1028), as initially introduced, which would have provided that "[t]he knowing adherence to sharia and to foreign sharia authorities is prima facie evidence of an act in support of the overthrow of the United States government and the government of this state...." It would have made the support of any "sharia organization" linked to terrorism a felony punishable "by fine, imprisonment of not less than fifteen (15) years or both."
Under this bill an American Muslim woman's hijab is a smoking gun for terrorism. A Muslim woman's ritual prayer or personal abstention from food and drink during the Islamic holy month of Ramadan would presumably serve as "evidence of an act in support of the overthrow of the United States government..."
This bill would have criminalized the peaceful practice of religion by millions of law abiding Muslims -- men and women -- around the country. Fortunately, this version of the bill failed but another anti-Sharia law passed in Tennessee.
Anti-Sharia laws also stigmatize the Muslim community as well as the precepts of Islam. This is because so-called anti-Sharia laws embody official state government condemnation of Islam as a threat, thereby causing Muslims to become outcasts. Such laws render Muslims inept players within the political arena. It achieves this in violation of the U.S. Constitution.
It is worth noting that the Bill of Rights protects certain individual rights -- including the freedom to worship freely -- from being taken away by the will of the majority. Our nation was in fact founded by men and women who fled religious persecution in their native lands with dreams and hopes of a more religiously tolerant tomorrow.
Today, more than 24 states have seen proposed laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of an entire body of law or doctrine of a particular religion. While the specific language of these legislative initiatives may vary, the intent is uniformly informed by anti-Muslim hate and the result is un-American.
Engy Abdelkader is a Legal Fellow with the Institute for Social Policy and Understanding and a Board Member of KARAMAH: Muslim Women Lawyers for Human Rights based in Washington, D.C. (A version of this article was originally published by KARAMAH as part of a larger symposium).
Engy Abdelkader: A Few Good Muslim Men -- Honoring Those Who Honor Women
Stopping Anti-Sharia Bans » Blog of Rights: Official Blog of the ...
13 States Introduce Useless Bills to Ban Sharia Law - COLORLINES
Oklahoma Faces Appellate Showdown Over Anti-Sharia Law - Law ...
Who's Behind The Movement To Ban Shariah Law? : NPR
The micro view needs historical context to make sense.
Sharia law and Western law have always been oil and water. No society has ever been governed by both at the same time. One or the other eventually is recognized as the supreme authority for public law.
There is good reason for that historical fact. They are based on radically different assumptions about human nature and the appropriate relationship between religion and the state.
Now, for the first time, large numbers of Muslims are living in the West. It would be amazing if these two legal traditions did not generate significant conflict between the immigrants and the host culture. Most of the immigrants have known nothing but Sharia norms in the entire history of their home culture.
Immigrating to the living standards in the West does not necessarily indicate a desire to assimilate into Western culture.
Given the long and consistent history of Islamic immigration, refusal of assimilation and eventual domination of the host culture through gradual introduction of Sharia norms and jihad, it is eminently reasonable for us to raise a flashing neon sign saying "Not here".
That is the purpose of the anti-Sharia laws.
--- The Greatest Philosopher Thinker of All Time, Stephen Colbert
http://www.nytimes.com/2011/07/31/us/31shariah.html?pagewanted=all
His anti-Sharia legislation drive is based on his staggeringly incorrect guess / conspiracy theory that Muslims want to replace existing U.S. law with a fictitious yet draconian form of Shariah law.
How Clear and Present is the Danger from Muslims "taking over" with Shariah law?
It is neither.
It is non-existent.
Anyone who knows how to use Google, and who is also willing to be intellectually honest with themselves, can determine this quite easily.
A WA Liberal MP has claimed Australians are unknowingly being converted to Islam by eating Halal meat.
In a speech to Parliament yesterday, backbencher Luke Simpkins said most Australians did not know that most of the meat they ate came from animals killed in accordance with Muslim law.
“By having Australians unwittingly eating Halal food we are all one step down the path towards the conversion, and that is a step we should only make with full knowledge and one that should not be imposed upon us without us knowing,” Mr Simpkins told Parliament.
“What is happening is wrong. Too often the minorities in this country are looked after without regard to the majority.”
http://au.news.yahoo.com/thewest/a/-/newshome/12032577/halal-meat-converting-aussies-mp/
If this isn't ignorance and paranoid then what is?
In Sufi Islam, Shari'ah refers to the outer forms and code of conduct that is conducive for the self to grow and evolve.
It's association with the self is akin to the egg shell and the embryo in it.
The egg shell provides a conducive and protective environment to the embryo to grow into a chick.
Similarly, the Shari'ah provides a conducive and protective environment to the self to grow and evolve in order to reflect the higher qualities, such as selflessness, compassion, humility, love, peace, mutual respect, justice, forgiveness, etc.
Shari'ah is also like the guardrails on a highway that keeps the traffic on the right path.
In Sufi Islam, the Shari'ah is flexible and contextualized. It's interpretation and application is dependent upon a person's level of consciousness and where he/she is at in his/her spiritual journey.
For example, when a person embarks on a spiritual journey, there are less restrictions on him than when he has progressed quite a bit on his journey.
So while a woman may not benefit from the hijab early on in her spiritual journey, she will benefit from it later on when she has fully understood the inner meanings of the hijab and is able to connect the inner and the outer.
This outline, when understood fully, will provide a criterion to determine what is essential in the Shari'ah and applicable and what is not at a given moment.
Consider, for example, the case of the hijab. A Muslim woman can insist that wearing a hijab is an essential part of her religious belief. But not because it is commanded by Shariah. Shariah is Law not religious belief.
I think many Muslims simply do not understand the difference between law and religion. If they do not learn they will remain confused a long time. They are free to obey every single command of the Shariah - but not because it is a command of the Shariah. Rather because it is part of their religious beliefs.
Nowhere in Quran or trustworthy hadith is there an order to obey the Shariah. The best we can say of the Shariah is that it is a handy compilation of how things might be done.
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If it does not have to be obeyed, it is not a law. It is advice.
Sharia is not law in America because religious rules may not be enforced outside the religion. Where governments enforce Sharia, it is law.
Sharia law is, among other things, the most widely followed interpretation of the meaning of the Koran, applied to daily life.
That is not true for a Muslim who denies the authority of any text but the Koran. Is that you?
Conversely, sharia makes no appearance and has no need or warrant to appear.
Constitutional, legal and regulatory provisions exists to ensure equal protections for muslims. It is ever the more present and oppressing that we have insufficient protection from christians.
If the community had better leaders than they currently have, this would not have happened. Are there organizations (here and abroad) voicing "We are for secular democracy, and reject religious preachers"? Hardly any. Are there organizations saying "We want religious laws"? Too many.
Actually, the hijab lawsuit could be a boon for her, she might win a settlement. But, also, if she is very religious, she probably knows people at her place of worship, she can get employment right there. She might be bilingual, she could find work as a translator.
Her attire and her adherence to cultural norms is her choice. We all have to face and accept the consequences of our choices.
I am not religious, so I don't go looking for employment at religious institutions. Corporations (and other institutions in the secular world) are not religious institutions, religious people should not expect too many favors from them.
In order to immigrate to the US on a marriage visa, one has to prove the marriage via a certificate and/or pictures at the US embassy. Also, the government keeps notarized copies of several documents. So, by simply looking at her immigration documents it can be determined whether she provided proof of her marriage.
If she entered the US on a Fiance visa, they were required to be married in the US (and get a certificate) within a period of time, otherwise her initial visa expires. They would/should have been looked into by the immigration services 11 years ago. If she ever tried to go through immigration at an airport, her documents, without appropriate stamps would be noticed to be lacking. Was she under house arrest all this time?
She seems to be literate enough to go on Craigslist, apply for jobs, etc. Is she literate enough to understand basic common laws? Why would be be undocumented?
What if she has to move back to Egypt? Is it an inhospitable place for humans? It used to be a leading civilization not so long ago. What happened? Oh, yes, we know. And, that's the legal system that we should wholeheartedly embrace.
Likewise there is no need for a court to consult Sharia law to consider the validity of a woman's choice in wearing the hijab. Employers are already required by law to make reasonable accommodations for people's religious beliefs
I object to the instant labeling of any opposition of substituting Islamic laws and customs for the laws of the US as being anti-Muslim hate.
As previously mentioned, one need only look to countries where the "divine law" as revealed in the Koran, etc., is practiced and see the result. The US upholds the separation of church and state for all citizens, that is not a slight against Muslims, even those who believe their Sharia is superior to man made law.
No, they are simply choosing civilization over barbarism, and reaffirming the superiority of rationalism over primitive, savage tribalism at a time when we need to be reminded that not all cultures are equal, and indeed some cultures are totally negative, destructive and have nothing worthwhile to contribute to the modern world.
Sharia law is presently used as a template for national law in most Muslim countries. No civil law can be passed if it violates Sharia.
The anti-Sharia laws, imperfect as they now are, draw a useful bright line between American culture and Islamic culture. They serve as a warning to American judges who may believe in cultural relativism that their personal bias is not acceptable as a guideline in court.
At least one judge already has needed that reminding--the one who ruled the American Muslim man had the right to rape his wife because Sharia law allowed it.
The government of the UK has ruled that polygamous marriages of Islamic immigrants are acceptable if entered into in a country where they are legal. Our anti-Sharia laws will make that stance illegal.
The fact that they didn't has nothing to do with Sharia law. I too oppose putting laws on the books raising one religion above another, but in this case, it is not Sharia law that needs to be researched, but simple international documentation.
If someone wants to work with the words "Jesus Loves Me" in a tattooed on his forehead, and I determine that I can give that person a job, but not in the front office, it is my call. Sorry, Sharia law does not give you the right to determine how I present my business to my customers. In my case, if the person was wearing a head scarf but could help raise the bottom line, then welcome, but that is not true in every business.
I agree with your position of putting anti-Sharia laws on the books, I do not agree with using Sharia law as a determinant in U.S. legal cases.