Islamic Sharia and Jewish Halakha Arbitration Courts

by Sheila Musaji

We have been slowly working to put online all of the articles from the print issues of The American Muslim published between 1989 and 1995.  Recently, one such article Native American Courts: Precedent for an Islamic arbitral system by Issa Smith which was originally published in our 1993 print edition went online.

This was quickly noticed by Robert Spencer of Jihad Watch, and his posting about the article provoked a number of Islamophobic postings on his site.

Last years dispute over establishing Sharia arbitration courts for family law in Canada prompted so much controversy, that it ultimately led to the banning of all faith based arbitration in Canada.  This years hysteria over a speech by the Archbishop of Canterbury was so heated that it comes as no surprise that there is such strong feeling about what seems like a non-issue.

The Archbishop of Canterbury’s speech was certainly not treason,  craven, bonkers, a reason to “sack” him,  or as Christopher Hitchens has said, a reason to say “To Hell With the Archbishop of Canterbury”.  The Archbishop certainly wasn’t saying as John Gibson suggested on Fox News:  “What the archbishop was proposing — in effect — was the unfairness of Sharia law toward women be institutionalized for Muslim women under British law.”  And, the Archbishop is not as Robert Spencer called him, the “Archdhimmi” of Canterbury.

As an American Muslim I would be opposed to any suggestion that Sharia replace our American legal system for American Muslims or any other Americans, and I would be the first to fight any such possibility.

However, the inclusion of Sharia arbitration or alternative dispute resolution that might be utilized by Muslims who so choose after signing a binding arbitration agreement (signed by both parties in a dispute), or that might file an amicus brief with the court is not an alarming new idea.  In fact, it is an existing option for religious communities.  Any decision rendered by a tribunal or a panel of mediators is subject to appeal to the courts and must be consistent with American law and our Constitution. 

This is how the law already exists.  The various anti-Sharia bills are based on the idea that they would prohibit certain provisions of foreign laws including Sharia law from being considered by a court if they do not afford the same liberties, rights and privileges guaranteed by the US Constitution.  That is already the case.  The existing laws of the U.S. and the Constitution of the U.S. are already the final arbiter. 

Unless Mr. Spencer and others who find this option so distasteful are also opposed to Halakha courts, then it would seem that this shows a streak of Islamophobia.

HALAKHA

“Halakha (Hebrew, also transliterated as Halakhah, Halacha, Halakhot and Halachah) is the collective corpus of Jewish religious law, including biblical law (the 613 mitzvot) and later talmudic and rabbinic law as well as customs and traditions. Like the religious laws in many other cultures, Judaism classically draws no distinction in its laws between religious and non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life.  Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakhah only by their voluntary consent.” 

There are a number of halakha courts in America representing different interpretations of Jewish law — Agudath Israel of America, Beth Din of America, etc.

The Harvard Jewish Law Students Association held a conference on Law, Judaism, and the State which discussed such issues as: —Is there a Jewish theory of the state? —What is the relationship between the state’s authority and Jewish law? —Is there a difference when the state is non-Jewish? —What are the principles of Jewish criminal law and how did they function? —How do the values reflected in Jewish criminal law compare with those in American law? —What do we learn from a comparison between the two systems? Can we evaluate American criminal law through “Jewish” eyes?  Jewish family law in the U.S. is a subject about which books have been written.  The Pursuit of Justice and Jewish Law:  Halakhic Perspectives on the Legal Profession (Second Edition) - “Major topics examined from the perspective of Jewish law include: litigating in secular courts; the problems posed by professional confidentiality; the issues involved in aiding a client in a violation of either Jewish or American law; the ethics of cross examination and the obligations of a lawyer to pursue truth; the problems raised by working as a prosecutor or a defense attorney; practicing bankruptcy law; and the permissibility or obligation of informing on others for violating American law. The book also includes a full discussion of issues posed by family law (including an appendix addressing the 1992 New York Get Law); as well as a complete unit addressing the problems of business law, from usurious transactions to the ethics of negotiation and arbitration.”

These halakha courts are already functioning within the legal system of the U.S.  Jewish divorce cases are sometimes handled by the Beth Din of America, the Jewish Religious Court who can issue a Get or Jewish permission for divorce.  “Under American law the procedures and rulings of Jewish law courts are treated just as any other produced by a legal arbitration hearing.”  The Beth Din of America issues statements on ethical issues such as stem cell research.  There is a site where Halachic forms can be downloaded (e.g. Living will, financial forms, pre-nuptial agreements).

There are sometimes differences between religious and constitutional law as for example the difference in American law and halakha law on the subject of self incrimination.  In such cases the American legal system would ignore the rulings of the religious courts. 

For a Jewish court’s arbitration to be binding in the U.S. the parties involved must sign a binding arbitration agreement.

According to wikipedia   “The AIA takes sides on many political, religious, and social issues, primarily guided by its Moetzet Gedolei Hatorah. It uses these stances to advise its members, to lobby politicians, and to file amicus briefs.” 

U.S. courts sometimes recognize the arbitration of Jewish religious courts and sometimes do not.

SIMILARITIES BETWEEN SHARIA AND HALAKHA

Marshal Breger, a Jewish professor of law at Catholic University, published Why Jews Can’t Criticize Sharia Law in which he says

... Despite this kinship, there are those in the Jewish community who would condemn Islam and sharia, arguing that, unlike Judaism, Islam is not worthy of the protections of American law.

David Yerushalmi, author of a model law banning sharia, argues that sharia differs from halacha because of its different “threat matrix.” Sharia, he tells us, requires faithful Muslims to impose Islamic law on the world “violently,” and its adherents should be charged with sedition against the United States. Rabbi Jon Hausman, a self-styled “warrior rabbi” from Massachusetts, tells us that in Judaism, unlike Islam, the law of the state is the law (in Aramaic, dina d’malchuta dina) so you don’t have to worry about such religious “imperialism.”

These commentators’ understanding of both sharia and halacha is markedly defective.

1. As Hausman surely knows, the reach of dina d’malchuta dina is debated among rabbinic commentators. Some limit the application of the Jewish legal system to property issues, others extend it to apply to all secular law that does not violate Jewish law. In any case, Hausman’s suggestion that halacha is a personal legal system—not relevant to civic life and politics—neglects both Jewish history and halacha itself. In Baghdad during the Middle Ages and in Poland during the time of the Council of the Four Lands, from the 16th to the 18th centuries, for instance, Jewish communities had their own courts, and Jewish law was enforced by secular authorities. And even today, thousands of Jews in both the United States and Israel look to rabbinic courts and halacha to resolve all manner of civil disputes.

While clearly some Muslims do view sharia as a hegemonic political force, the vast majority of Muslims, especially those living in the West, view sharia no differently from the way Jews view the halachic system: as an overarching guide to ordering one’s life. Muslim jurists have always drawn on sharia to mandate that fellow Muslims obey the laws of the land in matters that sharia does not prohibit. In numerous instances (see Koran 5:11), Muslims are told to “honor their contracts” and so to honor the “social contract” represented by the law of the land. The Fiqh Council of North America, the leading interpreter of Islamic law in the United States, ruled as recently as September 2011 that “there is no inherent conflict between the normative values of Islam and the U.S. Constitution and the Bill of Rights.”

2. Daniel Pipes recounts in a 2009 article an incident in England when the Indian Muslim owner of an old age home near Manchester proposed to switch to serving only halal food in the facility. After residents complained, the owner retracted the policy. To Pipes, the owner’s desire to remove pork from the menu, even though apparently not implemented, is proof that Islam wishes to impose itself on all around it. But is this drive for “imperium” the only explanation?

Indeed, Jewish law would have great sympathy for the position taken by the Indian entrepreneur. Though there are gray areas, Jewish law generally holds that one cannot benefit (or profit) from the sale of mixed milk and meat products. The legal compendium the Shulhan Aruch forbids Jews from selling non-kosher products on a regular basis (Yoreh De’ah 117.1). And anyone who has read Daphne Barak-Erez’s 2007 monograph Outlawed Pigs: Law, Religion, and Culture in Israel will appreciate the difficulties of commerce in pork products (or “white meat” as it is politely called) in Israel.

3. Critics of Islam make much of the Shiite legal doctrine of taqquia and the related concept of kitman, which allow one to dissemble or evade by misdirection in order to save a life or community from imminent destruction (see Koran 16:106). For these critics, the takeaway is that Muslims lie when it is in their interest, so we cannot trust their promises or make treaties with them.

But numerous Koranic references tell the believer to “mix not the truth with falsehood nor conceal the truth when you know what it is” (2:42). And further, “Conceal not [the truth]; for whomever conceals it is burdened with sin” (2:283).

Again, we must look to Jewish law analogues. Even the Chofetz Chaim, the rabbinic scholar most associated with truth-telling, allows “white lies” when they will produce social and interpersonal peace. (No threat of imminent destruction is required.) Maimonides allows one to lie about one’s religion to save one’s own life. And does anyone remember the Marranos?

My point is not to analyze the nuances of halacha, let alone sharia, but rather to underscore the inconsistency of attacking Islam for activities that Jewish law and practice would also permit, or even require.

These broadside attacks on sharia are reminiscent of Jewish polemical literature after the rise of Islam in the seventh and eighth centuries designed to show Judaism as superior. Later scholars such as the Meiri, though, moved on from polemics to classify Islam as a monotheistic religion close to Judaism. While there are certainly fundamentalist interpretations of Islam that we rightfully find dangerous and deplorable, it is time that Jews in America go beyond “gotcha” polemics and stop treating sharia and Islam as illegitimate expressions of man’s search for the divine.

The Jewish Forward reports that an

October 30 seminar “Ancient Texting” brought together 15 rabbis expert in Halacha, or traditional Jewish law, and 15 imams steeped in Shariah, traditional Muslim law, for a recent daylong seminar at Manhattan’s historic Temple Emanu-El, a Reform congregation. Much of the day’s discussion, which also included notable Conservative and Reform participants, was theoretical and textual in nature. But conversations often also revolved around practical issues concerning both communities and on areas of conflict between them, such as differing positions regarding Israel, and problematic texts in the tradition of each faith.

The public part of the daylong seminar used the biblical Abraham’s willingness to sacrifice his son, Isaac — or his half-brother Ishmael, as recounted in the Quran’s narrative — as a frame to discuss religious extremism. Muslim panelists spoke of the resurgence of a concept known as ijtihad, or self-adjudication of religious law, in the Muslim community as playing a role in this resurgence.  ...  The seminar included sessions on the two law codes, on combating anti-Semitism and Islamophobia, and a public panel on the interpretation of foundational religious texts.

Context and interpretation were among the important issues discussed.

CANON LAW

And, if you are a Catholic, then Canon Law (Catholic religious law) applies, if for example you wish to have your marriage annulled in order to remarry.  Canon Law doesn’t overide civil law but exists side by side.  The Religious Tolerance site notes “Divorces are not permitted within the Roman Catholic Church, because valid marriages are considered to be indissoluble. Church canon law 1055 states that any marriage that takes place is legally presumed to be a valid sacrament, and is thus permanent. However, if sufficient convincing evidence can be shown which indicates that it was not a valid marriage, then a Declaration of Nullity may be given. This is, in effect, saying that the marriage never existed; it was not an ecclesial reality. Only after an annulment is granted may the couple be free to marry other people. This requirement is not restricted just to Catholics. A Protestant may marry another Protestant, and later divorce. If one of them wants to marry a Catholic, they must first receive an annulment from the Church for their first marriage.”

There is a Canon Law Society of America, and a School of Canon Law at the Catholic University of America.  You can find a Code of Canon Law (that applies to American Catholics) prepared under the auspices of the Canon Law Society of America Canon Law Society of America here.

The Canon Law Information Page has a great deal of information and notes “Canon Law, the oldest continuously functioning legal system in the western world, is the internal legal system of the Catholic Church. It affects virtually every aspect of the faith life of some one billion Catholic Christians throughout the world. But, as Pope John Paul II explained when he signed the 1983 Code into law, canon law “is in no way intended as a substitute for faith, grace, charisms, and especially charity in the life of the Church and of the faithful. On the contrary, its purpose is rather to create such an order in the ecclesial society that, while assigning the primacy love, grace, and charisms, it at the same time renders their organic development easier in the life of both the ecclesial society and the individual persons who belong to it.” 

All in all, it would seem that faith based arbitration is an existing part of our legal system, and that considering sharia as somehow less acceptable than halakha (or than Canon Law) has no basis in anything other than prejudice and stereotyping.

ANTI-SHARIA LEGISLATION ACROSS THE COUNTRY

Oklahoma voters approved a ban on Sharia Law, the Constitutionality of which is being considered by the courts.  Rev. Martin Marty has written an important article on Oklahoma’s Sharia Law Ban 

Many States are considering anti-Sharia legislation.  Although Oklahoma’s law is the first to come under court scrutiny, legislators in at least seven states, including Arizona, Florida, Louisiana, Oklahoma, South Carolina, Tennessee and Utah, have proposed similar laws, the National Conference of State Legislatures says. Tennessee and Louisiana have enacted versions of the law banning use of foreign law under certain circumstances.    Newt Gingrich, former speaker of the U.S. House, is pushing for a federal law that “clearly and unequivocally states that we’re not going to tolerate any imported law.”  (South Carolina, Indiana, Texas, Wyoming, and other states have individuals pushing to bring this issue to a vote.  Wyoming judges wouldn’t be allowed to consider Islamic law or international law when making rulings, under a proposed state constitutional amendment introduced in Jan 2011.)  Wyoming has fewer than 300 Muslims living within its borders which makes their concern with this non-issue laughable. 

Anti-Sharia becoming a political talking point  Jumping on the Islamophobic bandwagon just ahead of Rep. Peter King’s planned Congressional hearings on American Muslim Radicalization Rep. Louie Gohmert (R-TX)

joined the growing chorus of Republicans clamoring for hearings to look into the threat of “creeping Sharia law.” Appearing on Frank Gaffney’s radio show (Gaffney is of course the chief architect of the “creeping Sharia” threat), Gohmert told the host he hoped they would “have some hearings” and that he would “be pushing for them”.  ...  This is not idle banter. As chairman of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, Gohmert has the power to hold such hearings. Rep. Allen West (R-FL), who serves on the House Armed Services Committee, has also said that the 112th Congress should prioritize the threat of “infiltration of the Sharia practice” in the United States. Between King, Gohmert, and West, three separate House committees could decide to spend valuable congressional time combating a phantom threat. Unfortunately, this Muslim scapegoating will do nothing to make America a more free, secure, or just society.”

Rep. Allen West (R-FL), a newly-elected member who has loudly scapegoated Muslims and campaigned on a promise to oppose religious diversity, appeared on Frank Gaffney’s radio program last week. West said that, although he has not spoken with all of the new members, he hoped that Congress would focus on the “infiltration of the Sharia practice into all of our operating systems in our country as well as across Western civilization.” He explained that targeting Sharia should be part of America’s “national security strategy” and that a response to Sharia would somehow include “tailor[ing]” American “security systems, our political systems, economic systems, our cultural and educational systems, so that we can thwart this”.

State Rep. Leo Berman (author of his state’s birther bill) has introduced legislation to ban Sharia law from being used in Texas courts.  Rep. Rex Duncan (R-OK), Rep. Newt Gingrich (R-GA), State Rep. Gerald Gay (R-WY), Sen. Jeff Sessions (R-AL), State Rep. Wendy Nanney (R-SC),  Sen. Mike Fair  (R-SC) are among those supporting anti-Sharia legislation. 

In addition to the danger of halal food, foot-washing facilities in public restrooms are seen as threatening “our” way of life by creeping-Sharia.

Mike Huckabee was upset to hear that a church had allowed Muslims to worship in the church.  He said “As much as I respect the autonomy of each local church, you just wonder, what are they thinking?  If the purpose of a church is to push forward the gospel of Jesus Christ, and then you have a muslim group that says that Jesus Christ and all the people that follow him are a bunch of infidels who should be essentially obliterated, I have a hard time understanding that.”

State Sen. Bill Ketron, R-Murfreesboro, and state Rep. Judd Matheny, R-Tullahoma, introduced the same bill in the Senate and House of Tennessee. It calls Shariah law a danger to homeland security and gives the attorney general authority to investigate complaints and decide who’s practicing it.  Actual bill at http://www.tennessean.com/assets/pdf/DN170847222.PDF proposes to make following Sharia illegal in Tennessee.  This section is particularly concerning and could be interpreted in many ways 39-13-904.    As used in this part, unless the context otherwise requires: (1) “Sharia” means the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god of Allah or the prophet Mohammed and which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence. Any rule, precept, instruction, or edict arising directly from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi’i, Hanbali, Ja’afariya, or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any further evidentiary showing;

Jeremy Henzell-Thomas (a linguist) commented to me on the “god of Allah” statement:  I see that this Tennessee bill refers to the Muslim God as the ‘god of Allah’ as if He were an alien or pagan deity. This is as absurdly obtuse as saying that the French worship Dieu, the Italians worship Dio, and the Germans worship Gott. And why do the Jews and Christians worship the pantheon of Yahweh, Elohim, Adonai, El-Shaddai, Jehovah, Lord, Ancient of Days, and Father (Abba)?  Are they all different from God?  And why do the misguided Chinese Christians worship Shangdi (King Above), Zhu (Lord), Tian Zhu (Lord in Heaven) or Shen (the name given to God by Protestant missionaries in China)? The strange God of the Korean Christians is called cheon-ju (cognate of Chinese Tian Zhu). And what are we to make of the Japanese for describing God as Tenri-O-no-Mikoto, or Tsukihi, or Oya? As for the Hindus, they worship Brahman, Bhagavan, Ishvara, Paramatma, Parameshvar and Para Brahman, all names for the One God or Supreme Cosmic Spirit. God protect us from the terminally ignorant.

Georgia state rep. Mike Jacobs told reporters that he couldn’t think of any instances of Sharia being forced on the good people of his state—but just to be sure, he introduced the “American Laws for Georgia Courts Act” earlier this week to block foreign or religious laws from being cited in state courts. A total of 16 states have passed or introduced anti-Sharia legislation since last February.

Wyoming State Rep. Gerald Gay (R-Casper), sponsor of a resolution in the Wyoming legislature which would, if passed, amend the state’s constitution to “forbid courts from using international law or sharia law when deciding cases.”  Gay said “Americans need to pull their heads out of the sand and realize the threat, because “pretty soon you have the camel’s nose under the tent.”

Former Colorado congressman Tom Tancredo argued that Muslim immigrants won’t assimilate because their goal is to implement Islamic law: “What do you do with people coming for the purpose of advancing sharia law, which is not compatible in any way with the constitution of the United States?  How do you deal with that? That’s another very scary thing because demographically the numbers are on their side.”

My state of Missouri has now entered the anti-Sharia circus.  Rep. Paul Curtman has introduced an anti-Sharia bill.  Dr. S.I. Strong, a law professor from the University of Missouri, called the bill a “dangerous exercise” that could potentially open the Missouri court system to complex litigation. She told TPM the bill has a number of inconsistencies and would be difficult to implement.    “The document takes the view that it is only trying to protect the fundamental liberties, rights, and privileges granted under United States constitution. But there’s huge disagreements about what those fundamental rights are and we’re in constant litigation about them,” she said.    Requiring that Missouri courts only consider foreign laws that grant individuals those same rights would force courts to undertake expensive and time-intensive analysis of foreign law, she said.    Strong said the bill could also have implications in marriages, divorces and child custody cases.

Sen. Bill Ketron of Tennessee has introduced a rewrite of the anti-Sharia bill Ketron’s original bill was criticized as banning Muslim practices. The new version, he says, backs away from that position.    “And it removes the word ‘Sharia,’ to where there’s no implication of restricting the way one worships. So it’s directed… the intent, as it has always been, the intent is to go after those extremists and terrorist who want to do harm to the people of Tennessee.”    Ketron’s new bill hasn’t yet been adopted by any Senate committee. It allows the governor and the state attorney general to name an organization or person as being of material support to terrorists. That’s potentially based on information that might not be made public.

This is an improvement, but still a total waste of taxpayers money.  Obviously, law enforcement already has the authority to bring charges against an individual against whom they have evidence of criminal activity. 

Abraham Foxman of the ADL has just released an important statement on this anti-Sharia craze.  It says:

The threat of the infiltration of Sharia, or Islamic law, into the American court system is one of the more pernicious conspiracy theories to gain traction in our country in recent years. The notion that Islam is insidiously making inroads in the United States through the application of religious law is seeping into the mainstream, with even some presidential candidates voicing fears about the supposed threat of Sharia to our way of life and as many as 13 states considering or having already passed bills that would prohibit the application of Sharia law.

Louisiana and Tennessee were among the first to approve such measures. The bills were based on model legislation issued by the American Public Policy Alliance, an unabashedly anti-Muslim advocacy group that defends the legislation as seeking to “protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Sharia Law.”

When the legislation was introduced in the Tennessee state Senate in early 2010, the bill defined Sharia as a “legal political military doctrine and system adhered to, or minimally advocated by, tens of millions of not hundreds of millions of its followers around the world.” In defense of the bill, state Sen. Bill Ketron said it “deals solely with a single part of Sharia that is strictly political in nature,” and “in no way inserts itself into the religious laws of Islam.”

The language was nearly identical to that of similar bills considered in other states, some of which were thinly disguised in terms of protecting against “the application of foreign law.”

All of this anti-Sharia activity has come despite the complete absence of evidence of the unconstitutional application of foreign or religious law in our judicial system. It has also come with a great deal of political handwringing—and myth making—about the threat of Sharia overtaking this country. This has led, in turn, to a false perception among a growing number of Americans that Sharia is a very real threat to our way of life and constitutional freedoms.

In fact, these legislative efforts are the proverbial solution in search of a problem. The separation of church and state embodied in U.S. and state constitutions prohibits our courts from applying or considering religious law in any way that would constitute government advancement of or entanglement with religious law.

But the anti-Sharia bills are more than a matter of unnecessary public policy. These measures are, at their core, predicated on prejudice and ignorance. They constitute a form of camouflaged bigotry that enables their proponents to advance an idea that finds fault with the Muslim faith and paints all Muslim Americans as foreigners and anti-American crusaders.

It is true that Sharia is being used elsewhere around the world in dangerous ways. While Sharia law can address many daily public and private concerns, it is nonetheless subject to radical interpretation by individuals or groups who subscribe to a more puritanical form of Islamic jurisprudence. Some individuals try to interpret Sharia law for their own radical agendas. It raises more serious concerns when it comes to implementing Sharia law in its entirety, as can be seen with the examples of Iran, Saudi Arabia and the Taliban. But that certainly doesn’t apply to America, where concerns about a “creeping Sharia law” are the stuff of pure paranoia.

If the hysteria over Sharia law continues to percolate through our political and social discourse, there is bound to be unintended consequences.

As we approach the 10th anniversary of the 9/11 attacks, in an uncertain economy with millions of Americans still out of work, we also face the prospect of a political season in which more political candidates may be tempted to invoke this mythological threat in an effort to pander to bigotry and fear, and to score political points.

We stand at a crossroads in American society. We have the option of heading down a path toward a greater tolerance of anti-Muslim xenophobia and fear of the “stranger in our midst,” or we can rededicate ourselves to the ideal of an America that is open and welcoming to immigrants as well as minority groups who have been here for decades. Let us hope that the better nature of America will enable us to proceed down the second path and reject those who seek to divide us for political gain, or those who wish to stereotype and scapegoat an entire people because of their religious faith.

We should never diminish the very real threat of terrorism motivated by Islamist fundamentalism coming again to our shores. But as responsible, free-thinking Americans we must be careful to distinguish between the true threats to our freedoms, and identifying their sources, and those who loudly declaim against phantom threats that don’t really exist.

And, now Michigan joins the the anti-Sharia craze.  Rep. Dave Agema, R-Grandville, is pushing an anti-Sharia bill for Michigan.  When he was challenged about this by other politicians in his state he said “If anybody has a problem with this that means they don’t agree with U.S. laws,” he said. “If they don’t want it passed then they have an ulterior agenda. It shows the people accusing me of that (bigotry) are guilty of it themselves.”

Scott Shane reports on Newt Gingrich’s continuing obsession with Sharia law.  Newt Gingrich had become the most prominent American politician to embrace an alarming premise: that Shariah, or Islamic law, poses a threat to the United States as grave as or graver than terrorism.

And, even the comedienne Victoria Jackson is now preaching against “creeping Sharia” taking over the country.

Today,  1/10/2012, the Denver based Federal 10th Circuit Court Of Appeals struck down Oklahoma’s ban on Sharia law, declaring that it violated the United States Constitution.

The the 10th Circuit unanimously affirmed the lower court’s permanent injunction. In a 37-page decision, the three-judge panel agreed that Oklahoma’s Sharia ban violated the First Amendment’s Establishment Clause and was therefore unconstitutional. On page 32, the 10th Circuit identified the heart of the matter, that Oklahoma’s move had no basis in reality but simply singled out Muslims for discrimination.

Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68.

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973).

This decision was in response to a lawsuit filed in 2010 by Muneer Awad, the head of CAIR’s Oklahoma office (CAIR-OK), the lower court blocked implementation of the “Save Our State Amendment” based on arguments that it would unconstitutionally disfavor an entire faith and deny Oklahoma’s Muslims access to the judicial system on the same terms as every other citizen. The state appealed that ruling.  Last year, CAIR and the American Civil Liberties Union (ACLU) filed a brief urging the circuit court to uphold the lower court’s ruling blocking implementation of the amendment. 

A number of organizations signed on to a friend-of-the-court brief, drafted by the American Jewish Committee, arguing that the amendment is unconstitutional because it singles out Muslims for derogatory treatment. Americans United, The Anti-Defamation League, the Baptist Joint Committee for Religious Liberty, the Center for Islamic Pluralism, the Interfaith Alliance and the Union for Reform Judaism joined AU on the brief.

A number of organizations have already released statements after the 10th Circuit Court decision.  Read the CAIR press release here, the ACLU press release here, the Americans United for the Separation of Church & State press release here,  and the American Jewish Committee AJC statement here and here for example.

On 5/25/2012 Kansas Gov. Sam Brownback has signed a law aimed at keeping the state’s courts or government agencies from basing decisions on Islamic or other foreign legal codes, and a national Muslim group’s spokesman said Friday that a court challenge is likely.

SHARIA AND THE CONSTITUTION

The Fiqh Council of North America (FCNA) issued an important statement in September of 2011 Resolution:// On Being Faithful Muslims and Loyal Americans.

A Resolution On Being Faithful Muslims and Loyal Americans

Like other faith communities in the US and elsewhere, we see no inherent conflict between the normative values of Islam and the US Constitution and Bill of Rights.

Contrary to erroneous perceptions and Islamophobic propaganda of political extremists from various backgrounds, the true and authentic teachings of Islam promote the sanctity of human life, dignity of all humans, and respect of human, civil and political rights. Islamic teachings uphold religious freedom and adherence to the same universal moral values which are accepted by the majority of people of all backgrounds and upon which the US Constitution was established and according to which the Bill of Rights was enunciated.

The Qur’an speaks explicitly about the imperative of just and peaceful co-existence, and the rights of legitimate self-defense against aggression and oppression that pose threats to freedom and security, provided that, a strict code of behavior is adhered to, including the protection of innocent non-combatants.

The foregoing values and teachings can be amply documented from the two primary sources of Islamic jurisprudence - the Qur’an and authentic Hadith. These values are rooted, not in political correctness or pretense, but on the universally accepted supreme objectives of Islamic Shari’ah, which is to protect religious liberty, life, reason, family and property of all. The Shari’ah, contrary to misrepresentations, is a comprehensive and broad guidance for all aspects of a Muslim’s life - spiritual, moral, social and legal. Secular legal systems in Western democracies generally share the same supreme objectives, and are generally compatible with Islamic Shari’ah.

Likewise, the core modern democratic systems are compatible with the Islamic principles of Shura - mutual consultation and co-determination of all social affairs at all levels and in all spheres, family, community, society, state and globally.

As a body of Islamic scholars, we the members of FCNA believe that it is false and misleading to suggest that there is a contradiction between being faithful Muslims committed to God (Allah) and being loyal American citizens. Islamic teachings require respect of the laws of the land where Muslims live as minorities, including the Constitution and the Bill of Rights, so long as there is no conflict with Muslims’ obligation for obedience to God. We do not see any such conflict with the US Constitution and Bill of Rights. The primacy of obedience to God is a commonly held position of many practicing Jews and Christians as well.

We believe further that as citizens of a free and democratic society, we have the same obligations and rights of all US citizens. We believe that right of dissent can only be exercised in a peaceful and lawful manner to advance the short and long term interests of our country.

The Fiqh Council of North America calls on all Muslim Americans and American citizens at large to engage in objective, peaceful and respectful dialogue at all levels and spheres of common social concerns. We call upon all Muslim Americans to be involved in solving pressing social problems, such as the challenge of poverty, discrimination, violence, health care and environmental protection. It is fully compatible with Islam for Muslims to integrate positively in the society of which they are equal citizens, without losing their identity as Muslims (just as Jews and Christians do not lose their religious identity in doing the same).

We believe that emphasis on dialogue and positive collaborative action is a far better approach than following the paths of those who thrive on hate mongering and fear propaganda. Anti-Islam, anti-Semitism and other similar forms of religious and/or political-based discrimination are all forms of racism unfit for civilized people and are betrayal of the true American as well as Islamic values.

May the pursuit of peace, justice, love, compassion, human equality and fellowship prevail in the pluralistic mosaic that is the hallmark of our nation.

I published an article American Muslims must defend the Constitution of the United States which discusses further issues regarding the issue of being both American and Muslim.  Here is a section of that article

America is a secular and democratic nation with a clearly marked wall between church and state (thank God!).  One of the reasons America has been a beacon to the world is the freedom that all Americans have to practice any (or no) religion.  As an American Muslim I don’t believe that America can be defined as anything but a secular democracy (secular meaning neutral towards religion, not devoid of religion or hostile to religion) in which all religions are free to worship.

I don’t want to see Shariah, or Biblical law, or any other religious law replace the Constitution, and I don’t want to see any kind of a theocracy in place based on any religion.  I agree with Rabbi Arthur Waskow that “When those who claim their path alone bespeaks God’s Will control the State to enforce their will as God’s, it is God Who suffers.”

There have been some who have suggested that because some Muslim majority countries do not allow the same freedoms to Christians and other minorities, therefore American Muslims should not be allowed the freedom to practice Islam, or that if they are “granted this privilege”, they should be grateful.  I am grateful to the founding fathers and generations of leaders who followed them for establishing and protecting a system that gives this right to all of us and who set up and maintained a wall between church and state so that no majority can ever be in a position to control or decide who does and doesn’t have the right to practice their religion.  I owe no gratitude to those who think that my freedom and rights as an American are something they can give or take away because this is “their country”.  My rights (and obligations) are granted to me by my citizenship.  This is “our country”, all of us.  Unless American Christians are to be held responsible for every country on earth with a Christian majority (for example Rwanda and Bosnia), then it is a little hypocritical to think that American Muslims have any control over what goes on in other countries.  Like any other American I may have an opinion about events in other countries and may even work to make that opinion known, but I have no control.  I am not responsible for what happens in other countries, and whether or not there are injustices in other countries why should that make it necessary for Americans to commit the same injustices in order to even the score.  I am an American citizen and a Muslim - and I have the right under the constitution to practice my religion (as does everyone else of every faith).  If some countries do not give the same rights to others, shame on them, but to think that this would justify removing my rights is nonsense.

The Constitution of the United States and the Bill of Rights (first ten amendments to the Constitution) are the foundation of this country.  They represent the ideal of America.  America is a multi-cultural, multi-racial, multi-religious, multi-ethnic nation.  That’s a fact.  Members of many religious groups, races, nationalities, etc. are equally Americans, and none of them are going anywhere.  We are all in this together, and as Americans are all protected by the Constitution and Bill of Rights of the United States.  That is fortunate, and something we must all work together to protect, as it is obvious that some among us just ‘don’t get it’.  It is obvious that our religious communities differ from each other, and that each of us feels called to observe their own faith.  It should be possible to do this while recognizing that we do hold many values in common, and that we can build on these in order to work together for the common good.  We can be good Christians, Muslims, Buddhists, Jews, etc. and also be fellow citizens of this great nation.

If some start talking about this being a “Christian nation”, or a nation of any specific majority group, that is a direct attack on the first amendment.  The separation of church and state is a critical protection for all of us, without that we would have the rule of whatever religion happened to be in the majority at any particular time in history and that would lead to a tyranny of the majority.  Right now there are about 300 million people in the U.S.  About 51% of Americans are Protestants (with Southern Baptists the single largest group),  24% are Catholics, and the rest other religions, or no religion at all. 

The point is that things don’t remain the same.  If we begin the this is a “Christian country” game, is this based on who is in the majority?  If so, does this mean that we are a Protestant nation?  What will happen if the slender 51% majority margin shifts?  Since the Southern Baptists are the majority among the Protestants, does this mean that we are a Southern Baptist nation?  What would this mean for the majority and for all the minorities.  Those people who ‘don’t get the Constitution’ also must ‘not get history’ because history shows that this would mean the end of America as the land of the free.

Truly, the best protection for everyone is to maintain America as a secular democracy under the Constitution.  Anything else will lead inevitably to persecution and tyranny.

Marshall Bregar, who is Jewish and a Professor of Law at Catholic University said We are passing through a season of singular national distemper where, for reasons best understood by social psychiatrists, the American people have entered into what can only be described as “open season” on Islam. Mosques everywhere, not just the “Ground Zero” mosque, are under attack; voters in Oklahoma have amended their state constitution to forbid state courts from considering sharia law in their decisions (not that they had any intention of mastering that sophisticated legal corpus); otherwise “liberal” communicators debate whether First Amendment protections extend to followers of the Prophet Mohammed; and Muslims everywhere worry (rightfully) whether they have a place in the American mosaic.

These people are so blinded by bigotry that they are not thinking through the unintended consequences of attempting to limit the Constitutional rights of one group of Americans.

The Center for American Progress has just published a report UNDERSTANDING SHARIAH LAW:  Conservatives’ Skewed Interpretation Needs Debunking, by Wajahat Ali and Matthew Duss which provides more useful information on this topic.

The Baptist Joint Committee for Religious Liberty (BJC) has signed on to an amicus brief that urges the 10th Circuit Court of Appeals to invalidate Oklahoma’s constitutional amendment passed in 2010, which barred courts in the state from using or citing Shariah law.

Soon after the passage of Oklahoma’s anti-Shariah measure known as the Save Our State Amendment a federal district court blocked its implementation.  In enjoining the ban from taking effect, Oklahoma City federal judge Vicki Miles-LaGrange ruled that there was a “substantial likelihood” that the ban violates the Establishment Clause of the First Amendment.

The BJC is arguing just that and doing so alongside the Anti-Defamation League, American Jewish Committee, Interfaith Alliance and other civil liberties organizations.

The BJC’s brief argues that the Oklahoma amendment violates the Establishment Clause for two separate and distinct reasons.  First, “the amendment’s purpose plainly is to disapprove of the Islamic tradition.”  Secondly, “the amendment’s dual specific references to Shari law - and to no other religious tradition - have the unambiguous effect of communicating official disapproval of Islam.”  **

The ADL also opposes this amendment.  “This amendment is patently unconstitutional,” said Mark L. Briskman, ADL North Texas/Oklahoma Regional Director.  “Its text and the circumstances surrounding the amendment’s legislative passage clearly demonstrate disfavor of Islam.  If the federal Establishment Clause stands for anything, it most certainly stands for the principle that government does not favor or disfavor particular faiths.”

IMPOSING SHARIA ON NON-MUSLIMS?

Robert Spencer has found another opportunity to promote his hatred of all things Islamic.  He is vocally opposed to the building of The Cordoba House, an Islamic Cultural Center and Mosque in NYC, and appeared on the Sean Hannity program to once again suggest that any Muslim, in this case Imam Feisal Abdul Rauf, who is not opposed to the entire concept of Sharia (Islamic law) is actually calling for “the subjugation of non-Muslims”.  Fox News own transcript of this Hannity program quotes Spencer as saying “SPENCER: Dala (sic) is Islamic proselytizing. And in the Islamic law, dala (sic) precedes jihad. You call the nonbelievers to Islam. And if they refuse to accept it, then you initiate the jihad against them. But the whole goal of both dala (sic) and jihad is to impose Islamic law or Sharia upon the nonbelievers as a political system, not as a religious one.”  Spencer shares his peculiar interpretations of Islam, the Qur’an, Dawa, Sharia, Fiqh, and all things Islamic with such “luminaries” as Osama bin Laden.  He totally rejects all Muslim attempts at reform, re-interpretation of specific texts and of particular interpretations of Sharia as either somehow not correct Islamically, or an attempt to deceive non-Muslims. 

In this discussion Hannity also shows that he is unaware of existing religious legal systems.  He said “I suppose that would mean allowing Muslims to have their own Sharia courts, Jewish people to have their own courts, Christians their own courts and so on and so on.”  Correct, that is already the legal situation.

Let’s hope that Spencer and Hannity are concerned about the Canon Law Society of America Seminar for the Media which will cover such topics as

“— Canon Law and the Sexual Abuse Crisis – An Overview. Presenter: Sister Sharon Euart, RSM, executive coordinator, Canon Law Society of America.
— Canonical Trial and Other Penal Processes, Including Administrative Procedures related to sexual abuse of a minor. Presenter: Rev. Lawrence DiNardo, Diocese of Pittsburgh.
— Canonical Penalties related to sexual abuse of a minor – What they include, how imposed, recourse of the accused. Presenter: Rev. John Beal, The Catholic University of America.
— Canon Law, Civil Law – Distinctions and Relationships (includes role, training of canon lawyers ), Presenter: Rev. Kevin McKenna, Diocese of Rochester.”

I have posted an article Center for Security Policy Sharia Report a Threat to American Ideals on the 177 page report just released by the Center for Security Policy titled Sharia: The Threat To America.  The Center for Security Policy was founded by Frank Gaffney who is also its’ director.  This article includes background information on all of those involved in producing this report.  Please read the entire article, and consider this passage:

This report attempts to make up (by its length, and by working in every possible conspiracy theory that has ever been suggested about Muslims into one document) for the fact that it is utter nonsense.  Daniel Luban points out about this report: “Suggesting that sharia is “the preeminent totalitarian threat of our time”, the report offers far-reaching – and to critics, draconian – proposals for how to combat it.  These include banning Muslims who “espouse or support” sharia “from holding positions of trust in federal, state, or local governments or the armed forces of the United States”. The report similarly recommends prosecuting those who espouse sharia for sedition, and banning immigration to the U.S. by those who adhere to sharia.  Few scholars of Islam would agree with the report’s conception of “sharia”. The word (typically translated as “the way”) is a broad term referring to Islamic religious precepts, and thus there are as many interpretations of sharia as there are interpretations of Islam.  Even moderate practitioners of Islam, like all religious believers, strive to adhere to their conception of what sharia requires. This does not, however, mean that they necessarily aim to impose sharia, much less a fundamentalist version of sharia, on others.”

When Gaffney’s report was released, it was praised by Republican members of Congress Trent Franks (AZ), Michele Bachmann (MN), and Pete Hoekstra (MI).  I also posted a follow up report Frank Gaffney’s obsession with Sharia

Intisar Rabb is a member of the law faculty at Boston College Law School where she teaches advanced constitutional law, criminal law, and comparative and Islamic law. She is also a research affiliate at the Harvard Law School Islamic Legal Studies Program and a 2010 Carnegie Scholar. She is particularly interested in questions at the intersection of criminal justice, legislative policy, and judicial process in American law and in the law of the Middle East and the wider Muslim world.  She has done an important interview with Sally Steenland here.

Amany Rajab Hacking, an attorney and assistant clinical professor at Saint Louis University School of Law writes

Muslims are not trying to impose Sharia law on United States courts.  The Constitution already prohibits U.S. courts from imposing religious law as civil law. The alleged fear that this law purportedly addresses is already banned in the Constitution which states, “Congress shall make no law respecting an establishment of religion.”

What the proponents fail to see is the protection the Constitution gives to religious groups. The government is already prohibited from singling out religious groups for discrimination or preferential treatment. This law singles out only one religious group — Muslims — and treats them as second-class citizens.

Today the legislature wants to ban Sharia law — what religious law may be next? Canon law? Jewish law?

Instead of wasting taxpayer time and money defending lawsuits challenging this discriminatory and unconstitutional bill, ought not our legislature be focusing on some of the real issues our state has to deal with: education, health care, curtailing the budget, just to name a few?

Eli Clifton notes about this CSP Report that the FBI says [url=http://thinkprogress.org/security/2012/02/24/432435/fbi-shariah-r