understand it. But the moral validation of any religious system is never the domain of state lawmakers. Indeed, fearful attempts to protect the “American ideal” by eroding the constitutional rights of a growing Islamic community could hardly be more un-American. The real problem highlighted by the recent increase of overtly anti-Islamic legislation seems to be our own increasing determination to alienate those we fear, by use of any and every tool at our disposal.In the decade following the 9/11 attacks, heightened tensions and religious animosity are hardly surprising. After all, our nation is expending unimaginable resources around the world to fight a shadowy enemy that the average American roughly equates to Islam itself. However, by pursuing the type of preemptive and discriminatory legislation proposed in at least 20 states over the past two years, we are now bringing the war on Islam home. And this time, it seems we're starting it.
Such legislation does not depict the all-or-nothing ideological fight that some would have us believe. Rather, it is the beginning of an ugly battle of attrition against religiously insular communities that some domestic lawmakers are more determined to stigmatize than to protect.
One needn’t look beyond the Constitution of the United States to find significant problems with this so-called anti-Sharia legislation. The First Amendment, otherwise known as the Establishment Clause, clearly prohibits the creation of any law “respecting an establishment of religion, or prohibiting the free exercise thereof.”
To be clear, these laws are not unconstitutional because they prevent the application of Islamic law in US Courts. In this regard, the legislation is entirely superfluous, as foreign law cannot override state and federal law: a fact that this new legislation does nothing to improve upon. No, these proposed laws are unconstitutional because they unnecessarily target one specific religion and, if allowed, could open the door to a litany of faith-based persecution at the legislatively cuffed hands of the judiciary.
Giving specific consideration to Oklahoma’s embattled anti-Sharia legislation, the language of its constitutional amendment (which passed resoundingly among voters before being struck down by a federal appellate court) stated that, “[t]he courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.” Taken to its logical extreme, the language of Oklahoma’s embattled constitutional amendment could bar the final wishes of a deceased Muslim citizen from asset distribution pursuant to Islamic tradition, while proudly upholding the final wishes of his Catholic neighbor.
These instances of questionable legislation are allegedly prompted by cases of first impression: that is, matters before the court for which it is blind for lack of jurisdictional precedent. In these cases, it has long been established that such a court can, and indeed should, consider non-binding precedent from the decisions of courts sitting beyond that court’s jurisdiction. Moreover, the vagaries of the amendment could possibly be read to restrict the courts from considering legitimately ratified treaty law or universally accepted customary international norms, as it makes no attempt to exempt international law that has been otherwise embraced domestically.
On a practical level, the language of such legislation also poses significant, and likely unintended, burdens on contractual law. In contractual issues, savvy parties quite frequently select the choice of law that will govern their interactions. A court hearing any matter subsequently arising out of such interactions is obligated to consider that foreign law in any finding it reaches. By virtue of this legislation, a court hearing a contract dispute between parties whose contract arose in a foreign nation, and who clearly chose that nation’s law to govern the agreement, could be awkwardly prohibited from considering the very law required by the matter before them.
Clearly, none of these collateral consequences could be intended by an educated and enlightened legislature, which leads one to a rather strong inference that such proposed laws are drawn not to protect the sanctity of domestic law but rather to protect the ideological preferences of their drafters.
It is equally clear that the average American citizen is not losing sleep over the prospect of a Muslim-American couple amicably distributing their assets in accordance with Islamic tradition. Should a divorcing couple agree to such a distribution, the legal system will not intervene against the will of the parties, provided no rights are violated in the process. The true fear is that, in allowing religious code to factor into legal consideration, that code will somehow infect and pervert the application of domestic law upon us all.
Herein lies quite possibly the most unfortunate misunderstanding, symptomatic of today’s knee-jerk society. This is not about 'implementing' Sharia law in the United States, and certainly not replacing the domestic common law system. While we all enjoy the First Amendment right to peaceably observe our own religious traditions, such observance will not, and cannot, justify the violation of domestic law. Should any religious practice run afoul of state or federal law, or violate the civil rights of another in any way, that practice simply cannot be upheld in a US court of law. Any alarmist argument that a US court's consideration of Sharia law will legitimize the ideologically sanctioned violation of established civil rights is ignorant and dangerous.
Ultimately, it is worth noting that the surge in anti-Sharia legislation across the country comes not as a result of actual attempts to circumvent domestic law with Islamic principle, but rather as a preemptive warning shot across the bow and a chilling deterrent against the unknown. Before appellate court intervention, the Oklahoma amendment passed with 70% favorability. After it was blocked, the people raged at the court’s disregard for overwhelming majority rule. But is that not why our constitution exists in the first place? In a democratic system, is there anything more dangerous than an unchecked majority? While it is easy to govern to the whim of popular sentiment, we must be careful in how far we are willing to go. On any given day, in one way or another, we are all in the minority somehow.
