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What Sharia Law in Democracies Tells Us About Islam

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Step aside, Straussians. Intellectual conspiracy theorists have found a new fear-inducing, foreign-sounding idea that supposedly threatens to shred the Constitution and subvert American civilization -- sharia law. Earlier this week, the first day of hearings in a lawsuit filed by opponents of plans to build a mosque in Murfreesboro, Tennessee focused mainly on a condemnation of Islamic religious law, known as sharia. "Sharia says the U.S. Constitution is suitable for toilet paper," said the lawyer for the mosque opponents. Indeed, sharia-phobia is rampant on the right. Even Newt Gingrich recently got in on the action by proposing a new law banning courts from considering sharia as a replacement for American law. While the likelihood of sharia taking over our courtrooms remains remote, all this sharia mania raises some interesting questions, such as: Have any democracies ever applied sharia? And, if so, how long did it take before they perished from the earth?

To answer those questions, it makes sense to look at two other democracies where, perhaps surprisingly, sharia has long been part of the law of the land: Israel and India, two of America's greatest allies.

In both countries, the sharia law system is a holdover from the colonial past and governs issues of personal law -- like marriage and divorce -- for Muslim citizens. Yet neither Israel nor India has much of a reputation for public beheadings. Why? Because sharia is an abstract concept that can include a wide spectrum of different opinions, interpretations, and practices, as Arab and Islamic affairs expert Lee Smith explained in a recent column.

Israel has maintained government-sponsored sharia courts since that nation's founding, despite the fact that Israel considers itself the Jewish state and it has continuously been locked in a state of war with many of its Arab neighbors. Israel's Islamic courts are descended from the Ottoman Empire's millet system, in which each religious community lived by its own rules. So, today, when a Muslim couple gets married in Israel, the marriage must be performed according to binding Muslim religious law, and, similarly, when a Jewish couple is married, Jewish religious law applies.

Courts in India, the world's largest democracy, also apply sharia to personal status issues involving Muslims, even though the population of India is roughly eighty percent Hindu and the country has a history of conflict with Muslim Pakistan. For example, when a Muslim woman gets divorced in India, the amount of alimony to which she is entitled will be determined under sharia.

Ultimately, court decisions of Islamic law in both Israel and India can be appealed to those countries' high courts, which are empowered to overturn sharia rulings based on conflicts with basic rights or other laws.

The sharia systems of Israel and India may be far from the liberal ideal, but they are certainly not the harsh, all-encompassing sharia of the Taliban or Saudi Arabia. Such severe interpretations would not survive for long in a diverse, modern society where Muslims are a minority. The fact that Israel and India have openly applied versions of sharia law for over sixty years should at least give us pause to consider whether this scary, foreign-sounding concept is really quite as terrifying as Newt Gingrich hopes it will be.

If sharia were ever seriously adopted in this country (which it won't be), it would most likely resemble not the sharia of the Taliban, but the sharia of Israel -- a country where Islamic law is binding only on personal law issues; where the practice of polygamy, permitted under traditional sharia, has largely been eliminated; and where decisions of the sharia courts are ultimately subject to review by the Supreme Court of Israel.

Does that mean that America should bow down and submit its legal system to the rule of sharia? Of course not. We should never accept any religious legal system in this country because that would contradict a bedrock principle of our Constitution -- the First Amendment's separation of religion and state.

India and Israel remain stuck with their religious personal law systems for historical reasons, and, to be sure, these systems are not without their problems. Aspects of sharia, even as applied in those countries, conflict with human and women's rights laws and have at times served to provoke religious conflict, particularly in India. But the wholesale demonization of sharia by defining it by the worst abuses committed in its name ignores the more complex reality -- that Islam, like Judaism and Christianity, is subject to differing interpretations.

If a serious movement arises to legally enact any form of sharia in America, we must defend our First Amendment principles and reject the attempt to have the state impose religious law. But the First Amendment guarantees not only the separation of religion and state, but also the free exercise of religion. The integrity of the principle that all Americans are entitled to their faith is now being tested by a despicable wave of anti-Muslim sentiment, which some politicians hope to exploit for electoral gain. Between now and November, we will see how America fares on that test.