A new state law in Kansas bans judges from basing their decisions on Islamic Shariah law and all other “foreign legal codes.”
However, critics of the measure, including many non-Muslims, said the law poses hidden threats to other faith communities, and suggest there is a thinly veiled anti-Islamic bigotry behind similar efforts in state legislatures across the country.
“Catholics absolutely should be following these developments and speaking up about them,” said Robert Vischer, a professor and associate dean for academic affairs at the University of St. Thomas Law School in Minnesota.
“It is important to recognize that American Muslims in U.S. courts are not trying to invoke Shariah as a freestanding set of binding legal norms that the court should enforce simply because the litigants are Muslims,” said Vischer, who also told Our Sunday Visitor that the anti-Shariah laws threaten members of any faith tradition who seek to enforce private agreements, which he suggested could even apply to the Code of Canon Law.
“In bankruptcy cases involving the disposition of Church property, for example, courts regularly look to canon law, and that may be impossible under this legislation,” Vischer said, adding: “These laws just don’t threaten the religious liberty of Muslims. They threaten our commitment to a legal system that is open to all faith traditions.”
Stephen M. Gelé, a Louisiana lawyer and spokesman for the American Public Policy Alliance, a Michigan organization that promotes the legislation nationally, told OSV that the “American Laws for American Courts” initiative does not impact Canon Law or target Muslims. He said his organization’s model legislation is designed to protect Americans from being victimized by foreign legal codes that lack the U.S. Constitution’s personal liberty safeguards.
“I think American Laws for American Courts is a very measured, reasonable and well-thought response to the problem that in no way will restrict the religious practices of any American, but will protect all Americans’ constitutional rights when they interact with the law,” Gelé said.
The American Public Policy Alliance said it tries to address how the American court system handles cases that involve foreign law, such as when a parent in a foreign country petitions a U.S. court to honor a custody agreement issued by that country’s court system.
Shariah, like Jewish law, sometimes surfaces in civil divorce and custody proceedings when agreements are not resolved through religious channels. Judges can examine the underlying religious issues, but are supposed to issue rulings based on state or federal law.
Law of the land
One common example cited by Shariah opponents is a 2010 New Jersey case where a trial court judge denied a Moroccan woman’s request for a restraining order against her husband after he repeatedly assaulted and raped her. The judge said the woman’s husband lacked criminal intent because he believed his wife was bound by Islamic law to have sex with him. That ruling was later overturned on appeal.
Corey Saylor, the national legislative director for the Council on American-Islamic Relations, noted that the First Amendment’s prohibition on a state establishment of religion already prevents Shariah or other religious codes — such as the Mosaic Law — from becoming the basis for civil law in the United States.
“One aspect of Islam is that our faith teaches us to obey the law of the land in which we live,” Saylor said.
Vischer suggested that the anti-Shariah arguments reflects “a serious lack of confidence in our legal system.”
“Our courts and legislatures are perfectly capable of making sure that the stoning of adulterers, for example, does not become legally permissible in the United States. We do not need to ban Shariah in order to do that,” Vischer said.
Gelé countered that the bill prevents an American version of European countries establishing independent tribunals that apply Islamic law.
“In the bigger picture, this is a much larger problem in Europe, but there is no indication that we are not susceptible to it,” said Gelé, who added that the “American Laws for American Courts” bill does not specifically target Islam.
“The law does not discriminate against any religion at all,” he added.
However, the American Public Policy Alliance’s website makes several references to Shariah, and links to a 2010 report by the Center for Security Policy, a neoconservative think tank based in Washington, D.C.
The report is titled“Shariah: The Threat to America,” and it calls Islamic religious law a “totalitarian ideology” and a “legal-political military-doctrine.” The report also highlights several cases of Shariah principles clashing with American civil courts. Muslim leaders called the report misleading.
The American Laws for American Courts template bill was written by David Yerushalmi, a controversial attorney who has a track record of “anti-Muslim, anti-immigrant and anti-black bigotry,” according to the Anti-Defamation League, a prominent Jewish civil rights organization.
Yerushalmi has been a driving force behind the efforts to push state legislatures to adopt anti-Shariah laws. Besides Kansas, where Gov. Sam Brownback, a Catholic signed the law last month, Tennessee, Arizona and Louisiana have adopted similar statutes. The National Conference of State Legislatures said anti-Shariah bills have been considered in 20 states.
‘Save Our State’
Anti-Shariah legislation stalled earlier this year in the Pennsylvania state legislature after concerns were raised by the Council on American Islamic Relations and other religious leaders, including Father Lawrence DiNardo, vicar for canonical services in the Diocese of Pittsburgh and a former president of the Canon Law Society of America. Father DiNardo told the Pittsburgh Post-Gazette last year that the bill posed a threat.
“A law like this has the potential of restricting people’s religious freedom,” Father DiNardo said.
In Oklahoma, voters approved a ballot initiative in 2010 — named the “Save Our State” amendment — that specifically named Shariah. The amendment was subsequently ruled to be unconstitutional by a federal judge and federal appeals court.
“It’s clear they were targeting the Muslim faith,” Saylor said.
A coalition of religious and secular groups — including the Baptist Joint Committee for Religious Liberty, Americans United For Separation of Church and State, the Interfaith Alliance and the American Jewish Committee — filed a joint amicus brief arguing that the Oklahoma law enshrined an official state disapproval of Islam.
The amicus brief also highlighted anti-Shariah comments made by Oklahoma State Rep. Rex Duncan, the amendment’s chief author. Duncan encouraged Oklahomans to read the Center for Security Policy report, and claimed that without the amendment, Muslims would find a “back door way to get Shariah law into the courts,” according to court documents.
Other politicians have recently denounced Shariah. U.S. Rep. Michele Bachmann, R-Minn., a former presidential candidate, said during the primary season that she feared Shariah would usurp the Constitution. In a 2010 speech to the American Enterprise Institute, former Republican House Speaker and presidential candidate Newt Gingrich called Shariah “a mortal threat to the survival of freedom in the United States and in the world as we know it.”
“Legislators who push this law know it’s not in line with the First Amendment, and they do it anyway,” Saylor said.
Denouncing Shariah is one way for politicians to fire up voters and distract attention from more pressing problems, said Vischer.
“For some voters, I think it’s about fear,” Vischer said.
Brian Fraga writes from Texas.