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The Application Of Sharia Law In The United States
In 2008 a Moroccan man and his 17-year old wife immigrated to America. Not long after she filed a restraining order against him, claiming her husband was raping her. The husband did not deny their sexual relations were non-consensual, but said that in his religion, the wife was supposed to submit and do all that he desired of her. The New Jersey judge found that given his understanding of Islam, he did not intend to commit a crime, and was therefore innocent. The restraining order was denied.
Cases like this set off alarm bells that shari’a law is coming to America, and in fact is already here. Called “creeping Shari’a,” this case is given as just one further example of our nation forsaking its heritage in an effort to be politically correct and yield to the pressures of local Muslims to live by their own laws, and not our own.
But according to Eugene Volokh, a conservative law scholar at UCLA, it is quite the opposite. Where US judges have made reference to Shari’a law, they do so within parameters long established in American legal precedent. He notes, importantly, that the judge in the New Jersey case made a legal error, overturned by a higher court which granted the restraining order.
In the effort to understand this controversial and inflammatory subject, his explanation proved very helpful. Here is a list of what is and what is not allowed in the American judicial system:
Allowed:
- Distribution of inheritance according to religious motivation;
Not Allowed
- Asking the court to divide inheritance according to Shari’a law
U.S. law allows freedom of contract and disposition of property. One may divide one’s property in a will according to whim, or ask a religious scholar to divide it according to Shari’a law. But the court does not accept competency to interpret religious laws, and would reject a request asking it to do so.
Allowed:
- Application of foreign law to determine marriage or overseas injury;
Not Allowed:
- Specifics of foreign law against U.S. code or procedural discrimination of testimony;
U.S. law will accept that two foreign individuals are married if they were legally married according to the law of their country of emigration. If in foreign nations marriage is determined according to Shari’a, then US courts must take this into consideration for the determination of marriage in a domestic dispute. Foreign acceptance of polygamy, however, has no application in US courts. Similarly, if an American is injured abroad and sues a company with representation in America, tort laws are determined by the nation in which the injury occurred. But should foreign tort laws limit the value of female testimony, as for example in some understandings of Shari’a, this has no carry-over consideration in the American lawsuit.
Allowed:
- Exemption from work rules for religious reasons;
Not Allowed:
- Unless it imposes ‘undue hardship’ on an employer or is against government interest;
U.S. law permits reasonable accommodation for religious belief, evaluated on a case-by-case basis. So wearing a hijab at work or taking time from the work day to pray may or may not be granted, based on the nature of the employment in question. A famous ruling allowing Muslim taxi drivers to decline a customer carrying alcohol may or may not have been judged correctly, but what is important is that it was based on existing American precedent, not in understanding what is right in Islamic Shari’a.
Allowed:
- Granting accommodation to students or clients that impose only modest cost on the granting institution;
Not Allowed:
- Evaluation of these requests on the basis of which religious group asks for them;
U.S law allows public and private institutions to better serve citizens and customers by appealing to their religious sentiments, as long as this does not damage the public interest as a whole. Banks have offered sharia-compliant loans, for example, and schools with high density Muslim populations have granted a full day off on holidays rather than just excusing Muslim students. Examples of this sort apply equally to efforts to legislate Islamic morality in heavily populated Muslim areas.
Not:
- Unless it violates the Free Speech Code or Equal Protection Clause
U.S. law permits citizens to lobby government to pass laws reflective of morality. In local areas therefore, Muslims are as free as others to pass legislation barring alcohol, for example. Should any locality, however, seek to encode restrictions on “blasphemy” or limit the rights of women, it will stand in clear violation of existing U.S. law and be struck down by the courts.
There are many cases offered by those who warn of creeping shari’a, and each must be evaluated on its own merits. There may be examples – many or few – in which the above descriptions have been violated. The above is offered to all who have been affected by the clamor that “the Muslims are coming.” Indeed, they are already here and have been since before the American Revolution and are coming as citizens within a nation of laws. They are undoubtedly changing the demographic and culture of our country, as every set of immigrants has done before. That they are Muslims, outside of the general Christian heritage of most previous groups, does add a different application of the American guarantee of freedom of religion. It may also result in these newer Americans who, either unaware or rejecting of our liberty, seek to illegally restrict individuals in their own communities.
But throughout the nation’s history the constitution and bill of rights has worked remarkably well. It should be trusted to continue, no matter the unfamiliarity of those who believe also in Shari’a. The United States will honor them within reason, and curb any excess that violates our order. On many issues worthy debate must take place. But we must not let fear or demagoguery permit generalization or discrimination. Let the law decide.
The Application Of Sharia Law In The United States
311 – 009
https://discerning-Islam.org
Last Update: 03/2021
