At Christianity Today, Emory University’s John Witte mounts a defense of anti-Sharia legislation:
A constitutional battle over Muslim family law has begun. In November 2010, Oklahoma voters approved a state constitutional amendment banning the use of Muslim Shari’ah and other international laws in its state courts. This was a direct rejoinder to other Western nations allowing Muslim citizens to enforce Muslim marriage contracts in state courts and to resolve family law issues before Shari’ah tribunals without state interference. Oklahoma’s citizens wanted none of it, and they voted to ban the use of Shari’ah altogether. Twelve other states are discussing comparable measures. [ . . . ]
The three most prominent arguments for the use of Shari’ah family norms and procedures in America (and the rest of the West) are based on religious freedom, political liberalism, and nondiscrimination. Though each argument seems plausible on the surface, they are all, to my mind, fundamentally flawed.
Witte argues that we shouldn’t make special accommodations to Sharia that go outside current constitutional and legal freedoms. Fair enough. But how is this an argument for passing legislation that actually restricts freedoms to make religious contracts currently enjoyed by all Americans? If a marriage contract doesn’t run afoul of our laws or our Constitution, what does it matter whether or not it references Sharia? Should it be ruled out? If so, what about an otherwise identical contract that doesn’t reference Sharia? Witte’s argument is, at its best, an argument for inaction—not for the measures passed by states like Oklahoma and Kansas.
Witte makes a further curious argument, saying that we should be less accommodating of Muslim religious liberty claims than those of Jews and Christians because they’re relative newcomers to the Western scene:
The current accommodations made to the alternative legal systems of Christians, Jews, first peoples, and others in the West were not born overnight. They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides.
Witte offers a useful reminder that every political settlement arises from a specific historical situation and not just from the implementation of abstract principles. This is true and important.
Yet one of the features of our historical inheritance is that we see a value in applying basic standards of equality and fairness that do not make reference to otherwise arbitrary measures—like, say, how much a group was or was not persecuted in the past. By Witte’s standards, we ought to be especially skeptical of religious freedom claims made by American Protestants, the long-time guardians of America’s de facto establishment. Or perhaps we should be most skeptical of claims made by Catholics, on account of their centuries of religious dominance? Hazing is not a democratic principle, and if it were, Muslims would be well on their way to passing.
Witte’s basic error, like those of other advocates, is to mistake for a debate about the nature of Sharia what is really a debate about the nature of American law. Our constitutional system is not broken and in need of fixing. The appearance of Muslims in America has not suddenly made it possible for citizens to enter into contracts that are otherwise unallowable. The question is: Will we extend the same protections—no more, no less—to American Muslims that we extend to others? If we seek to protect American constitutionalism and guard against illiberal excesses, our answer ought to be a resounding yes. And our response to anti-Sharia measures should be an equally loud “no.”