The law in several states now requires pro-life pharmacists to dispense the morning-after pill, Christian adoption agencies to place children with same-sex couples, and religious entities to pay for their employees’ contraceptives. The list of such violations of religious freedom keeps growing, along with the insistence that religious beliefs be kept private. The recent spate of “anti-Sharia” initiatives is just the most politically popular example of such threats.
Though popular with secularists and religious conservatives, anti-Sharia legislation does not defend against theocracy but calls into question our society’s fundamental commitments to meaningful religious liberty and meaningful access to the courts. These commitments have been relied on by generations of Protestants, Catholics, Mormons, and Jews, and to try to remove them for Muslims both is unjust to Muslims and sets a dangerous precedent for other religious groups.
Yet some religious Americans have come to fear that “creeping Sharia” threatens our legal system and our freedoms. Proposals to legislate against Sharia’s use in the courts have been offered in dozens of states. This attack on the ancient system of Islamic law, a broad and diverse legal code that, like Halakhic law, governs everything from how to contract a marriage to how to prepare a meal, imperils the religious liberty of all Americans.
Proponents of this legislation tend to focus on manifestations of Sharia overseas: the stoning of adulterers, cutting off of the hands of thieves, and the denial of basic freedoms for women in some Islamic countries. In America, the targets of concern are much more elusive. One commonly cited case, for example, was brought by a Moroccan woman in New Jersey who sought a restraining order against her husband for repeatedly assaulting and raping her. The state court judge denied the request, finding that the husband lacked the required intent because he believed that his wife’s compliance with his demand for sex was mandated by Islamic law. The decision was overturned on appeal.
Sharia means “the way to the watering place.” It has come to refer to the correct way of practicing religion—in particular, the rules that govern the lives of Muslims. Frank Griffel, professor of Islamic studies at Yale, points out that Sharia goes beyond what most Americans would consider “legal discourse, for it extends to matters concerning proprieties of clothing, conduct between spouses, filial piety, behavior at funerals, and other questions that Westerners would treat not as legal, but as moral issues or mere etiquette.” Put simply, “all normative discussions within Islam” center on Sharia.
There are many schools of interpretation among Islamic legal scholars, and some interpretations stand in tension with the rights that we have come to take for granted in liberal democracies, including the rights of women, homosexual persons, religious minorities, and religious converts. Fears about the most extreme applications of Sharia need not prompt a categorical ban on Sharia. The political community need not accept whatever interpretation of religious law emerges from a given community. Secular legal norms can serve as boundaries without closing off access to norms that are imported from outside the legal system. This distinction is largely lost on anti-Sharia advocates.
Despite—or perhaps because of—these advocates’ propensity to avoid any such nuance in their political rhetoric, the anti-Sharia campaign has gained substantial mainstream support. Seventy percent of Oklahomans voted in November 2010 to amend the state constitution to forbid courts from considering “international law or Sharia law” in their decisions. The amendment’s popularity did not ensure its constitutionality, of course. A resident of Oklahoma sued, arguing that the amendment would preclude courts from probating his will, which contained references to Sharia. The federal district court issued a preliminary injunction against the amendment’s enforcement, a decision upheld by the Tenth Circuit Court of Appeals earlier this year.
The amendment was doomed by its singling out of Muslim citizens. It banned legal reference to Sharia but not to comparable systems like canon law or Jewish law. The Tenth Circuit observed that “if a law discriminates among religions,” it can pass constitutional muster only if it is closely fitted to a compelling state interest. The lack of such an interest was underscored by the defendants’ admission “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.”
Despite the demise of the Oklahoma law, the anti-Sharia banner was picked up by Republican presidential candidates. Newt Gingrich declared while campaigning in South Carolina that he would only endorse a Muslim presidential candidate if he or she would “commit in public to give up Sharia.” Gingrich has described Sharia as “a mortal threat to the survival of freedom in the United States and in the world as we know it.” Rick Santorum and Michele Bachmann signed a pledge to reject “Sharia Islam and all other anti-woman, anti–human rights forms of totalitarian control,” and Bachmann explained that “Sharia law . . . certainly does not have a place in a United States courtroom, nor should it be followed by United States judges.” Even Mitt Romney felt obliged to insist that “we’re not going to have [Sharia] law applied in U.S. courts.”
Learning a lesson from the Oklahoma debacle, anti-Sharia advocates have become stealthier. A new bill in Michigan, for example, tries to avoid the constitutional pitfalls with a broadly worded provision that a court or administrative agency “shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or the United States.” “Foreign law” is defined as “any law, legal code, or system of a jurisdiction” outside the United States. The bill has more than forty cosponsors, but its primary proponent, Representative Dave Agema, makes clear that the bill aims at Muslim litigants who “do not want to be under our law.”
Before Christian and Jewish believers support such measures, they should consider the way these laws not only misunderstand the faith of their Muslim fellow citizens but threaten their own religious liberty. Muslim Americans who seek to use Sharia are not asking the American legal system to adopt Islamic rules of conduct, penal or otherwise. Muslims have introduced Sharia in court not in an attempt to establish a freestanding source of law binding on litigants but rather in recognition of the norms to which the litigants have already agreed to be bound.
American courts do this every day—it’s called contract law. Even the literature being pumped out by anti-Sharia organizations shows that their target is not the threat posed by the imposition of Sharia on American society but rather the threat posed by the introduction of Sharia according to the same criteria of admissibility applied by courts to other religious codes.
In particular, the disputes implicating Sharia tend to crop up over the terms of the contract that constitutes the litigants’ marriage. (In Islam, the contract does not precede a marriage; the contract is the marriage.) The disputed terms often pertain to the distribution of property upon marriage and in the event of divorce or the husband’s death. Courts do not rubber-stamp all marital contracts, of course. But whether or not a contract formed in accordance with Sharia is enforceable should turn on whether it goes beyond the contractual conditions that would be tolerable in any other marital contract, not on the fact that it emerged from a particular religious system.
More broadly, the religious terms of an agreement do not preclude its enforcement by courts. If the rules of a Baptist church provide that a pastor can be removed only by a vote of the entire membership, a court will uphold a pastor’s challenge if the elders dismissed him without the required vote. That the church’s rule expresses the Baptist commitment to the priesthood of all believers does not preclude a court from enforcing it.
To ban Sharia or any other form of religious law puts religious citizens at a tremendous disadvantage. The rules of secular groups like the PTA, ACLU, and Humane Society all have real authority because the legal system stands behind them when disputes arise. In the same way, American law rightly stands behind the rules adopted by religious bodies unless those rules conflict with important public policies.
Courts are not going to enforce a Mayan rule about child sacrifice, but in the vast majority of cases, courts enforce religious rules. When bankruptcy courts apply canon law in determining property rights for a diocese or when courts enforce arbitration agreements based on biblical principles pursuant to widely invoked rules of “Christian conciliation,” the rule of law is not jeopardized. Anti-Sharia legislation proposes an unconstitutional double standard. Canon law and biblical principles are not dirty words in the American court system, and Sharia should not be either.
In all likelihood, this second generation of anti-Sharia initiatives will not change judicial practice, because it bans only the enforcement of foreign law that would result in the violation of a constitutional right. American courts are generally not in the business of issuing rulings that violate the litigants’ constitutional rights. If a foreign court order is entered without a party’s having the chance to contest it, or if the foreign procedures lack fundamental fairness in some other way, American courts will not enforce the order. If a contract is based on foreign law but the contract is entered through coercion or duress, our courts will not enforce its terms. The source of the substantive terms of the court order or contract—whether that source is Canadian law, canon law, Sharia, or the Bible—does not determine the enforceability.
Even though the First Amendment has now forced anti-Sharia advocates to frame their proposed laws so broadly as to be meaningless, these initiatives should be vigorously contested by the defenders of religious liberty. When state legislators across the country line up behind such bills, the aim is not primarily legal reform—it is political grandstanding aimed at reassuring nervous constituents that Sharia law will be kept out of our courts. This serves only to fan the flames of religious intolerance while nurturing public acceptance of the notion that the religious commitments of our citizens have no place in our courts. Law has a pedagogical function—as cases such as Roe v. Wade have painfully taught us—and anti-Sharia legislation harms the social fabric by its very premise: the presumption that the deepest core values and convictions of religious Americans threaten the legal order by virtue of their source, without reference to their substance.
Rather than wait to see whether the next iteration of the anti-Sharia movement passes constitutional muster or changes judicial practice, the better course is for Christians to stop the movement in its tracks by reaffirming that American courts are open to religious believers—and the norms to which they bind themselves—on equal terms. Freedom of conscience is not just freedom to believe but freedom to apply that belief to conduct, to act in accord with one’s conscience. Liberty to live consistently with one’s beliefs may bring one into conflict with others, especially in a society increasingly convinced that religion is corrosive to the common good.
But that is one of the prices of protecting religious freedom, and one that can be adjudicated through our law and the democratic process. We must remind our fellow citizens that the only alternative to a robust, action-oriented liberty of conscience is a “privatized, personalized conscience” that, in the words of Charles Taylor, “amounts to meaninglessness.”
When the state encroaches on the venues in which people live out their core beliefs—including the legal venues in which those core beliefs are given real-world efficacy—the cause of conscience suffers. An ascendant secularist vision of the public marketplace already excludes traditional Christians, or at least requires, as the price of admission, that they defy their own commitments. It would be a sad irony for Christians to be complicit in the effort to do the same to American Muslims.
Robert K. Vischer is Professor of Law at the University of St. Thomas Law School in Minneapolis.