Sharia Law: Coming to a Courthouse near you?

My study of Muslim marriage and divorce among North America shows that American Muslims are unanimous in their opinion that the courts have no role to play in the enforcement of their private sharia obligations, which they regard as a matter for their private conscience.

Ahmadiyya Times | News Watch | US Desk
Source/Credit: British Council | Blog
By Julie Macfarlane | January 20, 2012

Public fears and ignorance about sharia law have led to a series of state referenda in the U.S. that would ban state courts from considering or using Islamic law, if passed. One of the first states to pass such an amendment after a public referendum was Oklahoma, where a 70 percent majority passed a ballot proposal to “forbid courts from looking at international law or sharia law when deciding cases” in November 2010.

The Oklahoma chapter of the Council on American-Islamic Relations immediately brought a legal challenge, arguing that the amendment discriminated against Muslims by singling out the tenets of their faith. A federal court judge then issued an injunction to stall the judgment from going into effect, and now a federal appeals court has upheld her decision. The judgment of the Court of Appeals 10th Circuit Court was unanimous, concluding that such an amendment would amount to discriminatory treatment of a particular religious tradition.


The appeals court addressed two problems with the amendment: the fact that it singles out Islam and not the law of any other religion, and the failure of the appellants to show any actual (rather than speculative and imagined) harm. The appellants could not provide a single example of an Oklahoma court applying sharia law.
Do not expect any successful reopening of the legal issues here any time soon. Efforts to draft amendments in other states that avoid one of the problems with the Oklahoma amendment – by referring more generally to international law and not singling out sharia – are also unlikely to be successful because they ban the courts from not only applying but even considering sharia, or any other international law. In fact, courts consider (but do not apply) other laws all the time: for example, when a contract has been originally been drawn up in another country or when freely contracting parties have agreed to apply any set of principles they choose to their future disputes.

It is common sense that courts must be able to consider the context (for example a commercial agreement in which the parties agree to be bound by the law of another jurisdiction, or a domestic contract in which spouses agree to marry or divorce on certain terms) in order to understand the original expectations and intentions of the parties, and reach a just decision based on American law. Any amendment prohibiting state courts from considering other laws would undermine this fundamental operating principle of American jurisprudence.

More important to understand is the complete lack of substance behind the so-called “moral panic” generated by the proponents of the nationwide campaign to “ban sharia law.”  In Oklahoma, the amendment was dubbed the “Save Our State” amendment and its proponents claimed repeatedly to the news media that there was a real and present danger of Oklahoma courts applying sharia.

Even the anti-sharia movement itself cannot substantiate any such claim. Take, for example, the Center for Security Policy, a major proponent of the claim that federal courts are applying sharia law. A closer look at their analysis of 20 federal cases actually found that in 19 of the cases, American civil courts placed extraordinarily high thresholds on orders made in Muslim jurisdictions, or contracts or agreements involving Muslim parties that referred to Islamic law. Just one case in this group generates real concern – the refusal of a New Jersey criminal court in 2010 to issue a restraining order against a Muslim man on the grounds that he believed that he had the right to non-consensual sex with his wife (an interpretation of Islamic law that most Muslim scholars would challenge today). What the analysis does not mention is that this order was reversed almost immediately on appeal and a restraining order issued.

So what’s the real story here? It’s not that the courts are applying sharia – but that American Muslims who use the courts find little or no acknowledgement there of the importance and vitality of their Islamic customs and principles. My study of Muslim marriage and divorce among North America shows that American Muslims are unanimous in their opinion that the courts have no role to play in the enforcement of their private sharia obligations, which they regard as a matter for their private conscience. In U.S. courts, a marriage or divorce agreement that makes any reference to Islam will be disregarded. This means that women cannot enforce agreements to pay them a mahr, or marriage dowry. As a practical matter, this creates considerable personal hardship for some women and is far more deserving of our attention than baseless assertions over the “coming of sharia law” to our courthouses.


Read original post here: Sharia Law: Coming to a Courthouse near you?