I shouldn’t have to write this essay. But a judge in Oklahoma forced me into it.
Last month, 70% of the voters in Oklahoma approved State Question 755, which bans Sharia law (and international law) from being used in the state’s legal system. Almost immediately afterward, CAIR (the Council on American-Islamic Relations) sued to have the vote overturned, based on the bizarre claim that the measure is “unconstitutional.” U.S. District Judge Vicki Miles-LaGrange then sided with CAIR and issued an injunction preventing the measure from taking effect until all lawsuits against it are resolved. Since the suits will likely take years to play out, the new measure (and the will of the voters) will be stymied for the foreseeable future.
Those who oppose Sharia in the United States often argue their point by highlighting how misogynistic, backward, cruel and discriminatory Islamic law can be under most interpretations. And while all that may be true, it is the wrong argument to make. I get so frustrated watching pundits, politicians and bloggers making the weakest argument in what should be a slam-dunk debate that I’ve decided to write this brief outline of what I think should be the prioritized hierarchy of arguments against the use of Sharia in the United States.
In order, these are the arguments that Sharia’s opponents should be using, not just in Oklahoma but anywhere else in the country where the same issue crops up:
1. U.S. law is the “supreme law of the land,” no exceptions.
The specifics of what’s in Sharia law are irrelevant. It doesn’t matter whether Sharia is the most wonderful, mild and reasonable set of humanitarian recommendations ever devised, or if it’s an oppressive medieval framework for a nightmarish theocracy — or something in between. All of that is off-topic. Why? Because in the United States of America, only U.S. law governs. Period. You can’t violate a U.S. law and then offer up as a legal excuse, “Well, in Mongolia what I did is perfectly legal!” You’d be convicted, while the jury laughed.
To get specific, Article VI of the Constitution, better known as the Supremacy Clause, states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
“Supreme law of the land” nails it down pretty well. I don’t see anything in there about exceptions made for religious law — do you?
Even the lead plaintiff in the case concedes this point; quoted in the top link above, Muneer Awad, executive director of the Oklahoma chapter of CAIR, said “the measure is unnecessary ‘because even first-year law students know’ that another type of law cannot supersede the U.S. Constitution.”
And…? What’s his point here? It may be true that State Question 755 merely reaffirms already-established legal principles, but just because a measure is “unnecessary” doesn’t mean that it’s unconstitutional. In fact, as many legal experts know, there is plenty of duplication and overlap in the Constitution itself, and much more in state law. Hate-crime laws are a clear recent example of “unnecessary” duplicative legislation: It’s already illegal to assault someone, but the courts have allowed additional laws against assault motivated by malice, even though they’re theoretically “unnecessary.” The same allowance for “unnecessary” reaffirmation of Constitutional ideals applies to the new Oklahoma law as well.
2. Sharia, as “divine revelation,” is inherently undemocratic.
One of the fundamental principles of United States law is that it is subject to the will of the governed, and can be updated and revised over time. This can be done at the federal level by Constitutional amendments in which the people of each state (through their elected representatives) vote on whether or not to alter the nationwide legal framework; or by electing (or booting out) representatives who enact laws according to the will of the voters; or by electing presidents and governors who appoint judges of this or that political slant; or by similar mechanisms at state or local levels. This process is so self-evident that it hardly needs to be described.
But Sharia operates in a completely different way. The Qur’an (from which Sharia is ultimately derived) is deemed by Islam to be “revealed,” in that it was supposedly handed down from on high by Allah himself, and as such is perfect, unchangeable, uninterpretable, and thus beyond the reach of man’s attempt to alter it. In other words, Sharia is undemocratic. In practice, various Islamic experts and jurists — imams, ayatollahs, mullahs, and so forth — do indeed “interpret” the medieval Arabic of the Qur’an and apply it to modern settings, since only scholars can even read the Qur’an in the original. (Even direct translations of the Qur’an are regarded by true believers as corruptions; only the original is the true “word of God.”) But these jurists themselves are not elected. So neither the text nor the implementation of the text are subject to the will of the populace.
Needless to say, any such legal system fundamentally contradicts the basis of the American legal system. You can’t have an immutable, eternal set of fixed religious laws (i.e. Sharia) incorporated as a subset of a malleable legal system (such as U.S. law).
(Now, if three-fourths of U.S. states voted to amend the federal Constitution to jettison all existing law and replace it with Sharia, then yes, we could have Sharia in America. But that doesn’t seem likely. And until such an amendment is passed, then Sharia is in fundamental disagreement with the existing Constitution.)
Sharia’s advocates think that by citing Sharia’s “perfection,” divinity and immutability, they are making a good argument for why it should be adopted; but it is for that very reason that it is completely unacceptable in the United States, a land whose government is “of the people, by the people, for the people.” Note that last word: people. Not God, not Allah. Us.
3. Many aspects of Sharia are flagrantly unconstitutional.
Any number of specific Sharia laws directly contradict or violate basic principles of the U.S. Constitution:
- Under Sharia’s rules of evidence, “Testimony from women is given only half the weight of men.” This violates the Fourteenth Amendment’s Equal Protection Clause, guaranteeing for all persons complete equality under the law.
- The punishment for theft under Sharia is “amputation of hands or feet, depending on the number of times it is committed.” This is a gross violation of the Eighth Amendment, which bans “cruel and unusual punishments” under U.S. law.
- In Sharia courts, “testimony from non-Muslims may be excluded altogether (if against a Muslim).” Furthermore, “Muslim women may only enter into marriage with Muslim men.” Such Sharia laws, as well as many others which elevate Muslims over non-Muslims, are in direct violation of the First Amendment, the Fourteenth Amendment, and possibly Article VI of the Constitution.
- Sharia’s penalty for apostasy (rejecting Islam) is death, according to the vast majority of Islamic scholars and judges. Since apostasy could not, under the First Amendment, even be considered a crime under U.S. law, much less a capital crime, enforcing the death penalty for a “crime of conscience” violates the very spirit of the Constitution, not to mention the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments.
The list could go on and on. Sharia has very specific rules and extremely harsh punishments against extra-marital sex, for ignoring various religious rituals, drinking alcohol, engaging in freedom of speech, and so on; all of these rules and punishments violate various aspects of the United States Constitution. Several other components of Sharia also clearly discriminate against non-Muslims in favor of Muslims, which also is unconstitutional.
Because it is not allowed under Islamic law to pick and choose certain parts of Sharia while ignoring or dismissing other parts which you may find inconvenient, and since some aspects of Sharia are self-evidently unconstitutional, then Sharia must be thrown out in toto as a viable legal system in the United States — exactly as the citizens of Oklahoma voted. What’s the problem here?
4. Sharia is fundamentally religious law, and should be inapplicable to U.S. criminal or civil law.
At its core, Sharia is religious law — the guidelines under which Muslims must live in order to follow Islam. As such, it is not comparable to nor could it be a replacement for the completely secular criminal and civil code of the United States.
I have no beef with religions having internal laws governing the recommended behavior of adherents, or stipulating the rules for excommunication, and so forth. But Sharia goes way beyond that. First of all, the punishments meted out for religious misdeeds under Sharia often overlap with American criminal law. For example, as noted above, the punishment for apostasy is usually the death penalty — a little more serious than just excommunication. And on the flip side, under Sharia there is no punishment for certain actions (such as wife-beating) which under US law are serious crimes. But religious law cannot trump criminal law in the United States — you don’t get carte blanche to do illegal actions (such as killing someone or beating your wife) simply because your religion tells you it’s OK. Once we open that Pandora’s Box, there’s no turning back.
We learned recently in a very vivid example that we cannot trust religious law to replace or undermine U.S. law. When the Catholic Church discovered in decades past that some of its priests had committed statutory rape and child molestation against underage children in the Church, in many cases the internal “punishment” meted out was simply a slap on the wrist, often nothing more than a transfer to a different parish. Under U.S. law, these priests had committed a serious crime; but the Catholic Church decided in most instances to not notify the secular authorities and instead to adjudicate the cases internally, and doled out “sentences” which were in direct violation of U.S. and state criminal codes. Most Americans found this outrageous and unacceptable when they found out about it; but if we were to allow Sharia to obtain in the U.S., then the exact same clash between religious law and secular law is certain to happen all over again. And the clash will almost certainly be much more severe, since the Catholic Church hid the crimes surreptitiously, and did so in violation of its own stated principles; but under Sharia the differences between Islamic and secular moral codes are clearly and openly spelled out, so the clashes between U.S. law and Sharia law will be innumerable and unapologetic.
Of course, as many have pointed out, Sharia is not merely religious law. Under Islam, there is no distinction between religious government and civil government. They are one and the same — or are at least supposed to be one and the same, which is why modern Islamic fundamentalists find the secular governments of Middle Eastern countries so intolerable. So how do we regard Sharia — as a replacement for U.S. civil and criminal law, or simply as internal religious guidelines for Muslims?
Either way, Sharia is unacceptable to be considered part of official U.S. law. If we regard Sharia as a secular legal system, then see point 3 above — it’s unconstitutional. Alternately, if we regard Sharia as purely internal religious law, then once again it is unconstitutional if followed to the exclusion of U.S. law, as shown here in point 4. So once again, it seems that the voters of Oklahoma got it right.
To address one final question which may arise: What if two people voluntarily enter into a contract based on non-US law, or voluntarily agree to have their civil dispute adjudicated by a Sharia court? That would be fine — if we can be assured that the agreement is voluntary. But the discriminatory and oppressive nature of Sharia means that one or more of the parties in any dispute may have been compelled by threats or social pressure to consent to Sharia jurisdiction under duress.
Say, in one example, that several U.S. Muslim businessmen agree to pool funds for an investment portfolio, on the mutual agreement that the investment be Sharia-compliant — i.e. not used to profit from any industry (like alcohol or gambling) which violated Islamic law. And then the manager in charge of the fund invests in various casino and liquor companies. Ooops. Would the other investors then have the right to withdraw from the fund with no penalties? Yes. In this type of case, “Sharia” could indeed play a role in a U.S. lawsuit, if it were to end up in court, because the Sharia-aspect of the agreement was purely internal, did not violate any U.S. laws, and was entered into voluntarily.
But consider our second example. In the CNN article linked above, the CAIR spokesman responsible for getting the Oklahoma law quashed gave this quote:
“What this amendment is going to do is officially disfavor and condemn the Muslim community as being a threat to Oklahoma,” Muneer Awad, executive director of CAIR’s Oklahoma chapter and the lead plaintiff in the suit, said earlier this month. In addition, he said, the amendment would invalidate private documents, such as wills, that are written in compliance with Muslim law.
This is an absurd, obviously untrue claim. In your will, you can leave your assets to anyone, for any reason. You can cite Muslim law, or your personal conscience, or a dream you once had, or baseless paranoia, or no reason whatsoever to leave all your assets to your children, or your cat, or the Flat Earth Society, or even leave instructions to have it all buried with you in your casket. If the will is determined to be a valid will, no ban on Sharia will be able to challenge it.
If, however, you die intestate (without a will), then the ban on Sharia could indeed come into play — as well it should. Sharia openly discriminates against females in inheritance law: “The rules of inheritance under Sharia law are intricate, and a female’s portion is generally half the amount a male would receive under the same circumstances.” So envision an example in which a wealthy Muslim man dies intestate, and the family ends up in an Oklahoma court in a dispute over his inheritance. Now imagine that the new Oklahoma law is not in effect, and lawyers petition the state court to have the case instead heard in a Sharia court. The judge may likely consent, provided all the disputants agree to the venue change. Now imagine that there are three overbearing sons who want Dad’s money, and one cowering daughter who has been threatened by them. When asked by the judge if she consents to Sharia justice in this case, will she have the bravado to stand up in court and say “No!”? Not likely. She’ll meekly assent, as have countless Muslim women for centuries. And she’ll wind up in Sharia court, where the Muslim jurist will naturally and correctly rule against her, not out of personal animosity, but because bias against women is built into Islamic law.
So, to use the CAIR plaintiff’s argument against him: Inheritance cases are exactly the kind of injustices that Oklahoma is trying to prevent by banning Sharia.
5. Subjectively, Sharia is a discriminatory and cruel legal system.
Finally, we get to the argument that most pundits and bloggers make: Sharia should be rejected because it’s just plain awful. While this may resonate with people personally and emotionally, it’s rather weak as a legal argument.
Sharia’s defenders complain that their opponents endlessly focus on the negative aspect of Sharia, and ignore the other parts which are reasonable, mild and non-controversial. I call this “The Trains Run on Time” fallacy. According to the old joke, when Italians during Mussolini’s rule were asked what it’s like to live in a fascist police state, they’d respond, “It’s not so bad: at least the trains run on time!” In other words, one could always find some good aspect to an unpleasant situation. So naturally Sharia’s defenders in the West will focus on the positive and try to sweep the negative under the rug. But such PR tactics in no way alter the fundamental fact that Sharia contains a significant number of laws and rules and punishments that are unacceptable and repellant to the average American.
CAIR and its allies are constantly talking out both sides of their mouths. On one hand, they say that Sharia’s never been used in Oklahoma and there’s no risk of it ever being used, so there’s nothing to worry about and we should toss out this new law as unnecessary; and simultaneously, if you flick the remote control over to the next channel, you’ll see a different CAIR spokesperson arguing for how reasonable and humanitarian Sharia is, and really we shouldn’t fear its introduction, because we’ll all benefit. Hmmmm. Double-talk is a dead giveaway for ill-intent.
CAIR’s main argument against State Question 755 is that it “singles out” Muslims for discrimination. Though this argument is so absurd it barely merits rebuttal, I should briefly address it since it seems to be CAIR’s primary legal claim. First of all, SQ 755 doesn’t ban Sharia in Oklahoma; it merely bans judges from considering Sharia when making decisions. And since we’ve seen above that this recommendation is already in accord with Constitutional principles, then there’s no basis on which to challenge the law. CAIR is sure to reply: Yes, but why us? Why single out Sharia and Muslims? To which I reply: Do you really want to go there? The answer is obvious: No other religion currently seeks to supplant the United States Constitution with is own religious commandments. Why not pass a law banning Buddhist laws from the Oklahoma courts? Because there aren’t a billion Buddhists worldwide calling for the involuntary global implementation of Buddhist law. Sharia is perceived as a threat precisely because it is more than just religious law — it is an overarching form of theocratic government antithetical to the United States of America — and because it is has an extremely large number of adherents and advocates.
This article goes into greater depth about possible legal objections to the new measure, quoting left-leaning Harvard law professor Noah Feldman as saying, “It’s a violation of the free exercise of Muslims in Oklahoma and it’s a violation of the separation between church and state.” But this is a false claim: nothing about SQ 755 prevents Muslims from following Sharia themselves in their own personal or religious lives (provided by so doing they don’t break U.S. law); it merely prevents the courts from incorporating Sharia law into its decision-making. Here’s the text of State Question 755, which “makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.” Tell me: In what way does this interfere with Muslims freely exercising their religion in Oklahoma? It doesn’t — unless the free exercise of your religion involves violating or undermining the U.S. Constitution. In which case, yeah, the courts should discriminate against your religious practice.
America only frowns on baseless discrimination; but official discrimination against any individuals, groups or religious ideology seeking to undermine or destroy the United States itself is not just acceptable, it is mandatory.
While this fifth and final argument is not as legally or logically weighty, it can be much more emotionally compelling because it allows one to present anecdotes about Sharia in contemporary real-world contexts. What does U.S. District Judge Vicki Miles-LaGrange have to say about the following martyrs to Sharia?
A Palestinian atheist jailed for more than a month for sharing his anti-Islam views on the Internet has apologized for offending Muslims, and a Palestinian military spokesman said he expected “positive” developments in the case.
Rights groups have criticized his arrest as a demonstration of the limits on free speech under the Western-backed Palestinian Authority, which has trawled Internet sites like Facebook as part of a crackdown on dissent and unpopular views.
The 26-year-old blogger, Walid Husayin — who had called the Muslim God a “primitive Bedouin” and Islam a religion of “irrationality and ignorance” — apologized in a letter to his family and to all Palestinians and sought forgiveness for what he called his “stupidity.”
“I apologize for the offense I have caused against the monotheistic faiths, particularly Islam,” the letter read.
Palestinian military police arrested Husayin on Oct. 31 after he posted comments deemed offensive to Islam on his Facebook page and blog. Defaming Islam is a crime in the West Bank.
A friend said Husayin posted the apology on his blog on Nov. 29, most likely with the hope that it would lead to his release. He spoke on condition of anonymity because of the sensitivity of the issue.
He posted the apology from a Palestinian military lockup in the northern West Bank town of Qalqilya, his hometown.
Husayin’s writing appeared aimed at provoking Muslims. He made Facebook profiles claiming he was God, called the Prophet Muhammad a philanderer and penned spoof verses of the Muslim holy book, the Quran.
Days after his arrest, shocked residents called for him to be killed as a warning to others.
Amazingly, Husayin’s English-language atheist blog is still online, and for the curious has several rather amusing atheist proclamations. Especially worth reading is his essay on Why I Left Islam. It should be noted that there are literally millions of similarly aggressive atheist blogs in the U.S., and those American atheist bloggers suffer no legal ramifications whatsoever for their writings, as guaranteed by the Constitution. But under Sharia, American atheists (not to mention Jews, pagans, Christians, etc.) could be treated the same way as Walid Husayin. Judge Miles-LaGrange, are you listening?
Pakistani authorities have arrested a doctor on suspicion of violating the country’s contentious blasphemy law by throwing away a business card of a man who shared the name of Islam’s prophet, Muhammad, police said Sunday.
The blasphemy law has been widely criticized by human rights groups following the case of Asia Bibi, a Christian woman sentenced to death last month for insulting Islam. Critics say the law should be amended or repealed because it is often used to settle grudges, persecute minorities and fan religious extremism.
Naushad Valiyani, a Muslim doctor in the southern city of Hyderabad, was arrested Friday after a complaint was lodged with police alleging his actions had insulted the Prophet Muhammad, said regional police chief Mushtaq Shah.
The case began Friday when Muhammad Faizan, a pharmaceutical company representative, visited Valiyani’s clinic and handed out his business card. He said when the doctor threw the card away, Faizan went to police and filed a complaint that noted his name was the same as the prophet’s.
Shah said police were investigating whether Valiyani should be charged with blasphemy.
Kafka-esque enough for you?
Turbaned men in Pakistan gather around a woman with a black hood over her head, pick up large rocks and repeatedly throw them at her until she lies motionless, stretched along the ground, a video purports.
A Dubai-based television station which released the footage said the stoning was carried out in northwest Pakistan, apparently by Taliban militants, incensed because she was seen out with a man.
The footage is a stark reminder that despite a series of military offensives the army said had weakened insurgents, militants still control areas of the northwest and impose their harsh version of Islam at will.
Dubai’s Al Aan television, which focuses on women’s issues in the Arab world, said it got the tape from its sources and that it took place in Orakzai agency in northwest Pakistan. It said it had other footage of a man who was executed by shooting, possibly the one the woman was seen with.
It was not possible to verify its authenticity or when it was filmed.
Such videos aren’t unique. Last year Pakistanis were outraged after footage widely aired on television showed militants in the northwest Swat Valley publicly flogging a teenage girl accused of having an affair.
Is this the kind of legal system we want influencing our courts in the United States of America?