UPDATE: David Yerushalmi, a leading legal adviser to the anti-Sharia movement, brilliantly clarifies the legal issues involved here, courtesy of NRO columnist Andrew McCarthy, a former federal prosecutor and expert on Muslim terrorism.
Some leading conservative voices, notably Princeton law professor Robert George, denounce the anti-Sharia movement as an attack on religious freedom. Now Matthew Schmitz, the deputy editor of First Things (where I was senior editor from 2009 to 2011), abominates what he calls “anti-Muslim bigotry” in a commentary published June 14 at National Review. Mr. Schmitz can’t understand why there is such a fuss about Sharia:
Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights.
If individuals want to settle civil cases under their own set of rules, why should anyone try to stop them? But there is a special circumstance in the case of Sharia that distinguishes it from Christian, Jewish, or French law. That is the problem of wife-beating .The fact is that Sharia does not recognize the universal principle of Western law that only the state has the authority to inflict violence, and specifically assigns to the male head of household quasi-state rights to inflict violence on his wife. No civil proceeding of any kind can be sanctioned under American (or any Western) law if the explicit or implicit threat of violence intimidates one of the parties to the negotiation. Yet violence is embedded in Muslim family law in a radically different way than any Jewish or Christian law. The difference is so extreme and so well-documented that comparison itself is invidious; as a Jew, I take offense when Sharia is compared to Halakha. There are superficial resemblances between Muslim and Jewish law, to be sure, because Muslim law is in large measure a lampoon of Jewish law, but the content is radically different.
Prof. George surely is correct to argue that anti-Sharia legislation and opposition to the building of mosques may infringe religious liberty. The anti-Sharia movement wields a blunt instrument that carries the risk of collateral damage. What are we do to, though, about a religion that explicitly sanctions domestic violence as a matter of first principles, because it denies the principle that only the state may employ violence? The Supreme Court has upheld the right of voodoo practitioners to sacrifice chickens, but American law cannot possibly tolerate wife-beating. Yet wife-beating is so deeply embedded in Islamic theology and law as to contaminate any aspect of Sharia that touches on family relations. How does one balance the Constitutional guarantee of religious liberty with the fundamental obligation of the state to protect individuals (in this case Muslim wives) against violence? This is not an abstract problem; according to Muslim women’s organizations, domestic violence is endemic in Muslim communities.
I am disappointed in my old colleagues from First Things, who have chosen to weigh in on the debate without so much as mentioning the elephant in the parlor, namely wife-beating. Shame on them.
This is not a secondary or accidental issue for Islam; on the contrary, the matter of wife-beating is definitive for Muslim understanding of the relationship between the individual and the state under Islam. As I wrote in a 2010 essay on the subject, there is no record of a recognized Muslim authority repudiating wife-beating. Tariq Ramadan, the Swiss Muslim scholar who purports to offer a Westernized version of Islam, notoriously defended wife-beating in a 2003 televised debate with then-French interior minister Nicolas Sarkozy.