The American Civil Liberties Union has issued a really brief report that debunks conspiracy theories regarding the supposed threat of Sharia law to the American Constitution. They do so by dealing with specific cases cited by the Sharia panic crew in order to justify their belief that Muslims are secretly trying to impose Taliban-style Islamic law on Americans. Conservatives have seized on a number of isolated cases and exaggerated anecdotes to make their case. I'll just excerpt from the report's basic explanations of how Islamic religious principles might come up in the courts, and why this doesn't represent some sort of sinister Islamist plot.
Cases involving arbitration agreements:
It is well established that, if a party contracts to arbitrate its claims but later refuses to do so in accordance with the terms of the arbitration provision, a court may determine whether the arbitration provision is valid and enforceable. A court may also confirm or enforce a binding arbitration award if one side refuses to comply with the decision, or vacate an arbitration award if it violates public policy. Accordingly, these decisions follow basic, neutral principles of law and no more advance Sharia than arbitration cases involving rabbinical arbitration tribunals or Christian arbitrators.
Obvious, but not if you've been told that any mention of the word "Islam" in federal court means we're a few years away from government by Supreme Islamic Council.
Cases involving prenuptial agreements:
Courts have similarly adjudicated claims brought by Muslims to enforce Islamic prenuptial agreements (“Mahr Agreements”) according to neutral principles of contract law. For example, in Odatalla v. Odatalla, the court applied contract law to find that “all of the essential elements of a contract are present.” The court thus upheld a Muslim husband’s promise, made as part of a prenuptial agreement, to pay $10,000 to his wife, explaining that enforcement of the Mahr Agreement was proper because it was “based upon ‘neutral principles of law' and not on religious policy or theories.”
The report goes on to point out that in a different case, a judge invalidated the contract because it was "signed under duress." So the notion that allowing Muslims access to the courts to enforce their prenuptial agreements gives husbands a blank check to abuse their wives isn't accurate.
Cases involving foreign law:
In looking at foreign law in these contexts, one of the primary factors a court considers is whether the particular order, judgment, or legal system would violate U.S. or state public policy. The cases cited by proponents of the anti-Sharia measures do the same, showing that there is no discernable trend of courts improperly enforcing Sharia law in violation of public policy. On the contrary, in nearly all of them, the courts rejected, on public policy grounds, deference to a foreign law judgment or legal system, again calling into question the curious claim that these cases illustrate a growing threat of Sharia.
Right -- there's a strange criteria here, where consideration of foreign law, even when it's necessary to adjudicate a particular legal dispute, proves that a Sharia takeover is imminent. That's the case even when the courts reject something as inconsistent with American law.
Religious Defenses:
Courts faced with criminal defendants' religious justifications based on Islam have likewise rejected them as violations of public policy. For example, anti-Muslim groups reached all the way back to 1976 to cite, as evidence of the “Sharia threat,” the case of People v. Benu. The case involved a Muslim man, who was charged with child endangerment for facilitating the marriage of his underage daughter. He claimed that he was innocent because the marriage was permissible under Islamic law. But the court rejected that defense and found the defendant guilty. Similarly, in S.D. v. M.J.R., a state court of appeals unequivocally reversed a misguided lower court decision denying a wife’s application for restraining order against her Muslim husband. The court condemned and rejected the lower court's reasoning that the husband's religious views pertaining to marriage and consensual sex caused him to lack the criminal intent necessary to sexually assault his wife. To hold otherwise would, of course, violate state public policy.
As the ACLU rather cleverly points out, the anti-abortion murderer of Nebraska doctor George Tiller attempted to assert his religious beliefs in defense of an act of terrorism. It didn't work, but there isn't much panic on the right about legislating such beliefs into law -- quite the opposite actually, Republican legislators supporting Sharia bans have attempted to pass language that might provide a legal defense for such acts in the future. You might think that when it comes to the erosion of the line between religious and secular government, the Sharia panic crowd is looking in the wrong place.
Anyway, the point is that constitutionally questionable bans on Sharia aren't necessary -- at least as far as the law is concerned. They may still be of political use to Republican politicians eager to signal to their base that they share a general hostility to Muslims.
