[Editor’s note: the following article was originally published at National Review Online.]
As Americans learn more about Islam, the aspect they find most objectionable is not its theology (such as whether Allah is God or not) nor its symbolism (such as an Islamic cultural center in lower Manhattan) but its law code, called the Sharia. Rightly, they say no to a code that privileges Muslims over non-Muslims, men over women, and contains many elements inimical to modern life.
Newt Gingrich, former speaker of the U.S. House of Representatives, gave the danger of Sharia unprecedented public attention in July when he blasted its “principles and punishments totally abhorrent to the Western world” and called for a federal law that “says no court anywhere in the United States under any circumstance is allowed to consider Sharia as a replacement for American law.”
Despite some stirrings in this direction, no such federal law exists. But legislatures in two states,Tennessee and Louisiana, recently passed laws effectively blocking applications of Sharia that violate existing laws and public policy. And, in a referendum on Nov. 2, the voters in Oklahoma likewise voted 70 to 30 percent to amend their state constitution.
Although applauded by moderate Muslims such as Zuhdi Jasser, passage of the “Save Our State Amendment” alarmed Islamists. The Council on American-Islamic Relations, accurately accused of aiming “to overthrow constitutional government in the United States,” nevertheless convinced a federal district judge to impose a temporary restraining order on the state election board from certifying the amendment.
A full court hearing could helpfully stimulate further public debate over applying the Sharia. In this spirit, let’s look more closely at the just-passed Oklahoma amendment, State Question 755. It limits Oklahoma courts to relying exclusively “on federal and state law when deciding cases.” Conversely, it rejects “international law” in general and it specifically “forbids courts from considering or using Sharia Law,” where it defines the latter as Islamic law “based on two principal sources, the Koran and the teaching of Mohammed.”
Popular criticism of the amendment vacillates between two contradictory responses, claiming it’s either discriminatory or superfluous.
Discriminatory? While the wording is indeed problematic (international law cannot possibly be banned; and the Sharia should not be singled out by name), State Question 755 correctly insists that judges base their judgments solely on U.S. law. Contrary to rumor, the amendment does not ban Sharia outside the court system: Muslims may wash, pray, eat, drink, play, swim, woo, marry, reproduce, bequeath, etc., according to the tenets of their religion. Thus does the amendment not harm American Muslims.
Superfluous? No research informs us how often American judges rely on the Sharia to reach judgments but a provisional inquiry turns up 17 instances in 11 states. Perhaps most notorious is the New Jersey ruling that concerned a married Muslim couple from Morocco. The wife related that the husband repeatedly forced her to have sex on the grounds that, quoting him, “this is according to our religion. You are my wife, I c[an] do anything to you.” In brief, the Muslim husband claimed Sharia sanction for raping his wife.
The trial judge agreed with him: “The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.” Based on that, the judge ruled in June 2009 that no sexual assault had been proven.
An appellate court reversed this ruling in July 2010, on the grounds that the husband’s “conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.” In Newt Gingrich’s more astringent analysis, the trial judge was “unwilling to impose American law on somebody who’s clearly abusing somebody.”
Then there looms the alarming example of Great Britain, where two of the country’s ranking figures, the archbishop of Canterbury and the lord chief justice, have endorsed a role for Sharia alongside British common law, and where a network of Sharia courts already operates.
Neither discriminatory nor superfluous, laws that banish the Sharia are essential to preserving the Constitutional order from what Barack Obama has called the “hateful ideologies of radical Islam.” The American Public Policy Alliance has crafted model legislation that Oklahoma’s and 47 other state legislatures should pass.