JURIST Guest Columnist Elizabeth Mohamad, New York University School of Law Class of 2016, offers insight surrounding the challenges surrounding recent "anti-foreign law" legislation and the resulting impact on the Muslim-American community...
haria law, the multifaceted entity that is known as Islamic jurisprudence, is living and ever-changing. It is often mischaracterized as a single authoritative and static body of law, however it is anything but. Sharia law, like other aspects of Islam, is often modified by the cultural filter of the Islamic sect to which it is attached. The result of this is an array of ideological discrepancies where different schools of Islamic thought agree with some Sharia postulations while denying others. Each exists in an intangible medium, as there is no written or codified Sharia text that can be referenced. Despite these varying versions and ideologies, Sharia law has the common aim of providing religious guidance relating to matters of civil and criminal law, as well as personal moral conduct.
As a result of the misinformed view that Sharia is a single, static and menacing authority, the overall American understanding of Sharia is informed by exposure to the most extreme form of these laws. This misinformation, coupled with preconceived judgments of the religion based on developments of Islamic terrorism, produces the kind of legislation that has most recently emerged in North Carolina, aiming to ban [PDF] the use of religious law for court decisions within the forum. As a country that grants its citizens freedom of religion as a constitutional right, the North Carolina legislation presents a number of interesting issues that are honeycombed upon one another to create a cluster of far-reaching consequences. This legislation neither explicitly infringes upon one's right to worship, nor does it single out Sharia law. However, surrounding circumstances of recent sensationalized concerns that Sharia law is attempting to dominate US court systems have substantiated the notion that the underlying purpose of this legislation is anti-Muslim. This development has left the Muslim-American community stunned, as it perceives the advent of this ban to be humiliating and unconstitutional.
The First Amendment's assertion that a group may exercise the freedom to practice their religion ultimately becomes insufficient and offended once the very medium that guarantees them that religious freedom puts forth legislation to isolate a religious group. The banning of Sharia law is thus incompatible with American constitutional ideals. Muslim-Americans should be allowed to invoke their religious laws, in terms of private religious arbitration, which govern the most intimate realm of their lives, so long as notions of constitutional compatibility still stand. In light of this, North Carolina's recent anti-Sharia legislation contradicts this long upheld notion of religious freedom by eliminating a body of law applicable to a large group of Americans who are entitled to their constitutional rights through their status as American citizens, and their religious rights through Islamic jurisprudence.
The First Amendment's establishment clause specifically states that the government is prohibited from creating any laws with regard to the establishment of religion. This applies not only to the government giving preferential treatment to one religion over another, but also to the prevention of the preference of religion over non-religion and vice versa. Barring religious law from the legal equation exemplifies the latter case of preference for non-religion over religion and is charged with partiality rather than neutrality.
Instead of pursuing this exclusionary approach, an understanding of this law might actually be beneficial in terms of better understanding the foundations of disputes involving American Muslims. Sharia law governs the very types of personal lifestyle developments that often lead parties to court, including divorces, custody battles and even breaches of contract. In each case, understanding Sharia law can grant the legal profession the ability to better understand the motivations and expectations of disputing parties. In the cases previously mentioned, acknowledgment of Sharia law can illuminate that in an Islamic divorce, the couple traditionally splits their assets asymmetrically with the wife often keeping the majority; in custody battles, it is traditionally upheld that the child support payments are enforced upon the father regardless of with which party the children live; in contract formations and breaches, it is traditionally upheld that interest rates are not applied to transactions and that remedies for breaches are restricted to only direct damages. To give an example that further implicates the resounding impact of this ban, consider a case where a Muslim-American who is not offered Halal food in an institution in which he or she attends or resides, whether it is a medical institution, a school, or even a prison. The banning of Sharia law effectively precludes any recourse for the Muslim-American to receive Halal meals at the institution, as the Sharia law requiring that Muslims maintain a Halal diet would not be considered in our courts. In light of these examples, the banning of Sharia law not only compromises the quality of representation for Muslim-American, but manifests its unconstitutionality as it can prevent Muslim-American from obtaining relief related to their First Amendment rights.
It is also notable to mention that in American courts, US laws maintain supremacy when considered against foreign law. In light of this, why would North Carolina, as well as many other states, choose to legislatively ban foreign bodies of law, when American laws will ultimately always have a hand to trump cards? This notion serves as confirmation that this legislation serves as a reactionary measure against Sharia law. There has not been one American court case that has based its holding on Islamic jurisprudence. Accordingly, the proposal of this ban as a counter to the likelihood of Sharia law infiltrating US courts is unfounded, as Sharia law has yet to even make its appearance in US courts.
Furthermore, a great number of young Muslims that already stigmatized as they are frequently typified as dangerous and foreign, this ban of Sharia law continues to send the message that Islam is incompatible with American principles, which further contributes to the ongoing and misguided notion that Muslims themselves are incapable of valid societal integration. This isolation can produce intense feelings of oppression and this oppression can, in turn, often become radicalizing. Such oppression hones the very ideals that contribute to extremist principles and can also lead Muslims, who would have been otherwise secular, down a more destructive or possibly even extremist path in response to feeling marginalized and isolated. In this sense, this legislation can produce the very results for which it aimed to respond and combat.
In light of the abundance of injurious consequences as described above, the anti-Sharia legislation that has been developing in the US is unconstitutional for a number of pressing reasons. If similar legislation continues to be adopted across the states, it would not be strained to conclude that the US has deemed it acceptable to compromise the First Amendment rights of an entire religious group as a reactionary measure against unwarranted fears.
Elizabeth Mohamad received her B.A. in English Literature from The City College of New York.
Suggested citation: Elizabeth Mohamad, Anti-Sharia Legislation and the Status of the American Muslim, JURIST - Dateline, Oct. 29, 2013, http://jurist.org/dateline/2013/10/elizabeth-mohamad-sharia-law.php.
This article was prepared for publication by Michael Micsky, a senior editor for JURIST's student commentary service. Please direct any questions or comments to him at email@example.com