Sharia Law: Constitutional Menace or a Religious Freedom?

Originally published at From Law to Grace

When you hear the words, “Sharia Law,” what immediately comes to mind?  If you said an Islamic legal code that is incompatible with the laws of our nation and states, you would probably be in “good” company, at least in Oklahoma.  Whether or not you would be 100% correct is debatable.

I must admit that when I hear “Sharia Law,” I do not have a positive dispostion toward this Islamic code.  I suspect this is the case with many people, including many Southern Baptists.  Our reticence in allowing Sharia Law to be used AT ALL in the United States may stem from its misuse in foreign lands, countries which simply lack the freedoms that we enjoy here in America.  Our sensibilities — rightly so — are offended when we hear stories of what most Americans would consider cruel and unusual punishment.

To give you a general overview of Sharia Law, it can be divided into two main sections:

  1. The acts of worship, or al-ibadat, these include:
    1. Ritual Purification
    2. Prayers
    3. Fasts
    4. Charities
    5. Pilgrimage to Mecca
  2. Human interaction, or al-mu’amalat, which includes:
    1. Financial transactions
    2. Endowments
    3. Laws of inheritance
    4. Marriage, divorce, and child care
    5. Foods and drinks (including ritual slaughtering and hunting)
    6. Penal punishments
    7. Warfare and peace
    8. Judicial matters (including witnesses and forms of evidence)

I will not spend much time on the first section — Acts of Worship.  I would hope that most people, including Southern Baptists, would recognize and accept that Muslims have a First Amendment right to worship however they see fit.  Even when we disagree with the tenets of Islam (or any other religion), we should at least be willing to recognize that Muslims have the same religious freedoms that Southern Baptists do in this country.  We may not have to like what others believe or where they build mosques, but the moment we begin to limit others’ religious liberties (barring some clear violation of the law) is the moment when we walk away from not only our Baptist roots but our conservative values.  And, it becomes the moment when we open ourselves up for our own religious liberties to be violated.

But, when we so dislike a religious minority that we begin passing laws which single this minority out for special approbation, then we are dangerously close to violating principles that we should hold dear.  Oklahoma’s “Save Our State” amendment does just that.  Placed on the ballot by the state legislature, 70% of Oklahoma voters approved the amendment on November 2, 2010.

What does Oklahoma need saving from?  Apparently Sharia Law.  What does the actual text of State Question 755, popularly known as the “Save Our State” amendment say:

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

From a legal standpoint, there are multiple problems with the way the amendment was written, not least of which it singles out Islamic Sharia Law as the only religious code that cannot be used in the Oklahoma judicial system.  That explains at least one reason why a Federal Judge enjoined the law from going into effect.  In beginning her November 29, 2011 opinion, Chief District Court Judge Vicki Miles-LaGrange quoted from a U.S. Supreme Court case:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)

While no religious beliefs or tenets of faith — be they Muslim, Jewish, or Christian — should replace or otherwise conflict with the laws of the states and nation, why should Islamic law — and Islamic law only — be singled out by the Oklahoma legislature for complete and utter rejection within the legal system?  If your answer to that is “Because it’s Islam and Muslims who are affected, not Christians,” then we maybe heading down a slippery slope — however well-intentioned — to a place with unintended consequences.

Are there parts of Sharia Law which are incompatible with the Constitutional framework of the United States and the 50 states?  Yes.  When Sharia conflicts with the laws of our nation or state, should we continue to use the laws of our nation and state to protect the rights and safety of our citizens?  Absolutely.  The laws of the state and nation should always trump Sharia Law (or any other religious laws that groups might live by in their private lives).

But, are we now saying that NO aspect of Sharia Law is compatible with the legal system that we have in place in this country?  Are we willing to say that religious tenets of faith — in this case Sharia Law — simply cannot be used anywhere, anytime, anyplace, even if the specific religious principle does not conflict with the laws of the land?  Before you answer those questions, do you also want to take that same approach with Christian religious principles integrated into contracts and what has come to be known as “Christian mediation?”  Southwestern Seminary and Tarrant Baptist Association might have different answers to that question, but we must be consistent with how we view “religious law” as it relates to our legal jurisprudence.  Apparently Dr. Richard Land, the President of the SBC’s Ethics and Religious Liberty Commission, also believes the voters of Oklahoma got it right when they exercised their “people power” in democratically rejecting Sharia Law.

Are we no longer willing to accommodate people’s religious preferences and beliefs within our jurisprudence, even when these preferences and beliefs do not conflict with our laws?  It seems that we want our own religious beliefs accommodated, but with Islam, we are simply unwilling to grant them what the Constitution already does.  Maybe we arrive at these views because we (in the sense of Christians) have been in the majority for so long.  We do not see the need to accommodate others’ religious beliefs and practices because, with rare exceptions, we don’t need anyone to accommodate ours.

At least not yet.  There may come a day when Southern Baptist Christians are singled out for special approbation by the government.  That day maybe here sooner than we think.  If we fail to stand up for the rights of religious minorities today — even those folks who we strenuously disagree with — can we really expect anyone to stand up for our rights when we come under attack?

Comments

  1. Doug Hibbard says

    Valid points. I would think that an appropriate application of the US Constitution would be enough to keep the portions of Sharia that we would deem wrong, like taxing non-Muslims for their existence, out of enforcement.

    I am in favor of the “international law” portion of the amendment. But that’s another discussion for another day.

  2. says

    What a brilliant idea to write an article like this, Howell.

    Thanks. Thought-provoking. When I get back from Boston today, I will have more time to digest it.

    • says

      Dave,

      I just don’t know where I get my inspiration for some of my posts :-) Hope you have a safe trip and look forward to your interaction with what I wrote. And, thanks for the hint! God bless,

      Howell

  3. Christiane says

    I wonder when the movement to ban Sharia will include a similar movement to ban Halakhah.

    I don’t think it’s a question of it happening, as once ‘something like this’ begins, it usually runs its course to the very end, unless there is a powerful intervention.
    For me, it’s a question of ‘when’ the movement to ban Halakhah will commence.

    • Christiane says

      It’s also important to look at the effect on how Canon Law is treated in the states. I can foresee the elimination of currently accepted arbitration not only within Halakhah organizations but also Canon Law courts, with regard to marriage laws.

      The treatment of ‘Sharia’ MUST also be extended to Halakhah and to Canon Law (with regard to marital arbitration courts),
      if certain states are to be IMPARTIAL in their judgment.
      Otherwise, you will simply have a case of blatant ‘Islamophobia’ on your hands, instead of a principled effort to separate the United States legal system completely from honoring religious organizations that arbitrate marriage issues according to their specific marriage religious marriage laws.

  4. says

    When I think of Sharia law in the US, I largely think of particular communities with a high Muslim population. The questions raised there seem to be not whether Muslims can choose to live as Muslims (something our 1st amendment guarantees) but whether local communities can enforce Sharia law by majority vote. The US government has a long history of wishy-washiness on this issue. It has allowed certain groups (some Amish communities and Orthodox Jewish communities) a sort of “Constitutional exemption” for making religious laws at a local level. Other groups, such as the required anti-polygamy laws for Utah achieving statehood, were not granted such.

    I still wrestle with how this works. After all, I say “religious laws” but to some extent all laws are “religious” and where do we draw that line. We are not a purely democratic society; we are a constitutional democratic republic. Majority vote must be submitted to the principles of free speech, freedom of conscience in religious belief, etc. found in the Constitution and the Bill of Rights. How does one grant freedom of religion to a group whose religion requires complete societal control? I don’t have answers to these questions either, just thinking out loud.

    In regards to Oklahoma, since I do not perceive Sharia Law as a major issue there, this law seems to be more about staking ground for upcoming debates than current issues for them.

  5. says

    I posted a couple of weeks ago an overview of the Sharia law debate in Baptist life.  Here it is.

    I am definitely in agreement that we can't pass laws that target a specific religion or specific religions.  This Save Our State Amendment is blatantly unconstitutional.  I doubt the authors expected it to survive the scrutiny of any court.

    Richard Land has proven himself over the last couple of years to be inconsistent on church-state questions – specifically those pertaining to the free exercise rights of Muslims.  He went from making a legal argument against the Ground Zero Mosque (practically the only person to do so) to joining up with the Abe Foxman and Anti-Defamation League to provide Muslims with legal assistance in building, expanding and relocating mosques and Islamic centers.  Now he's seemingly in support of an amendment specifically targeting the same group of people that he was trying to help with mosque-building just several months back!

  6. says

    Brother Howell,

    I am not an expert in law and do not claim to be. However, doesn’t “to establish them as legal principles to be applied by the courts.” establish there can no longer be recognized a voluntary submission to a religious mediation?

    Blessings,
    Tim

  7. says

    Let me add:

    With regard to the Orthodox Jews and Amish, those individuals are submitting to religious laws voluntarily.

    No proclamation for a religious leader is binding of course. The Amish are free to leave that community. Same for Orthodox Jews. Same for fundamentalist Christians and fundamentalist Mormons who live in a communal setting and subject themselves to church discipline.

    I wouldn’t characterize decisions that accommodate religious belief and practice to be “constitutional exemptions.” Those decisions are consistent – according to conservatives and liberals alike – with the First Amendment.

    Of course, the state can pass legislation that has the effect of limiting the free exercise of religion (as in case of Mormons) as long as there is an overriding compelling governmental interest and that this government interest is pursue in a manner least restrictive to religion.

    So, parents cannot refuse to provide medical care to their children out of religious reasons. Parents can’t refuse to provide their kids with an education for religious reasons. You can’t smoke pot and call it eucharist. Etc.

  8. John Wylie says

    It’s pretty simple, why Sharia Law was singled out in the OK bill is because it is the thing that poses the most threat to our nation. Amish law has never posed a threat and the Amish have never intended to force the United States into adhering to Amish Law, this is not the case with Sharia. The Muslims not only want to govern themselves according to it, but they intend to force it on us as well. Actually you’ll notice that Sharia and International Law were both prohibited from use in the courts. I was proud of OK when they passed the Law and I was one of those who voted for it.

    John Wylie
    Springer, OK

    • Christiane says

      Hi JOHN WYLIE,

      Ummm . . . it wasn’t quite clear in the new law that ‘Sharia’ was the only law to be affected. It is possible that Oklahoma judges aren’t going to know when and how they can look at sources of an American law that were international law in origin. I think this has not been well throught-through, and we may see it leading to more questions and dilemmas for the state court.

      Perhaps more clarity is needed ?
      What do you think?

    • says

      Why not just outlaw Islam? Wouldn’t that suit your purpose and the purpose of others who voted for the law in OK?

      The amendment was not a serious one. Any person who has studied law or practices law knows or at least should know you can’t craft legislation that specifically targets a religion. No court will uphold this law as constitutional.

      • K Gray says

        I think the law will eventually fall or be modified.

        The OK law has been challenged by a man who wants Oklahoma courts to — upon his death — enforce his will directing that his funeral be in accordance with Sharia law and his wife contribute to charity in accordance with Sharia law. Normally U.S. courts won’t interpret and apply religious law anyway, and generally courts won’t decide issues that aren’t “ripe” yet (he’s not dead yet!) or allow standing to plaintiffs on the sole basis of being offended, yet this reference to Sharia may be glaring enough to confer standing. Even if this lawsuit is dismissed, another will follow.

        The law appears to have other problems, primarily ambiguity. What do they mean by not applying international law, for example? But that issue isn’t hot-button.

        As to motivation: This Ok. initiative apparently gained steam from a New Jersey court using Sharia beliefs to deny a restraining order to a Muslim woman who claimed repeated marital rape (she divorced him). The judge considered an imam’s testimony on Sharia marital law and the husband’s belief that he had absolute sexual rights over the woman. The judge said due to the husband’s religious belief there was likely no rape, and so denied the restraining order. But NJ has a marital rape law.The appeals court overturned the ruling.

        Meanwhile the first ruling — widely publicized — created an impression that U.S. courts may apply Sharia in ways that justify violence contrary to existing law. That is a legitimate concern which I hope state and federal jurisprudence will clearly address, rather than legislators.

        Great Britain has tried a system of arbitration courts which apply Sharia law. Not sure how that is working or if our country would go for it….

        • says

          He shouldn’t need special standing for his will to be executed per Sharia, just as any Christian, Jewish, or other religious laws aren’t necessary for wills. A properly executed will under secular laws is binding on the estate of the deceased unless the will is deemed invalid for proper legal reasons.

          As long as the author of a will is sane and follows his/her state’s legal requirements, the will can distribute per Star Trek law for all the courts care. The motivation of the individual only counts if there is a contest on the will, so his wanting it done per Sharia would be no different than me writing into mine that a tenth of the proceeds go to my church.

  9. Louis says

    The impulse to protect U.S. law and traditions is a good one.

    Americans are right to be concerned when the courts cite foreign law or current trends in foreign law (not treaties or history) to determine what U.S. Constitutional law should be.

    And Americans are right to be concerned if foreign customs (where Islamic or not) would be used to shape or overturn customs and laws in this country.

    For example, religious law cannot be used to punish a 16 year old who engages in sexual activity. Civil law does not punish such things, and I don’t see the U.S. condoning the creation of ghettos where that sort of thing would go on. All 16 year olds in the U.S. are protected by U.S. law.

    Religious law should not be allowed to set the compensation for a breach of contract if the compensation is to hand over one’s daughter to the non-breaching party.

    Or if someone loses an arm in a car wreck, we would not permit religious law to set the punishment at the removal of the arm of the other driver.

    Or the death penalty for an adulterer.

    Or child labor or ignoring wage and hour laws such that a person would be forced to work 20 hours a day.

    But I have not studied the efforts closely related to the Oklahoma law, so I cannot comment on it.

    Our firm has been involved in a case where the parties to a contract had a “choice of law” clause in the contract, and they chose the place where a building, that was the subject of the contract, had been constructed as the having the law that would control the case if there was a dispute.

    Well, the building burned down. The building was in Saudi Arabia. So, Islamic law applied. Both sides had experts in Saudi law relating to negligence and what caused the fire. And the court had to decide what Saudi law was. And that was the law that applied.

    But this choice of law clause was subject to U.S. Constitutional guarantees.

    There is a lot of monkey business that goes on in court rooms in the name of the Constitution. People are right to be concerned. But we have to be wise and accurate in our reactions.

  10. says

    Nothing is ever as easy as many people seem to think. The truth is that Sharia Law has in it some elements that are truly detrimental to our way of life and especially our freedoms. Note how Algeria has apparenty asked a Protestant leader to close down all churches in that nation. Note also how Egyptian Christians are now being murdered by the radical Moslems. Note further the persecution of believers in Iraq as well as in Pakistan, Afghanstan, Indonesia, and elsewheres. There are those Moslems who wish to institute their laws here which alow a man to beat his wife (note the recent case in New Jersey where a judge accepted the contention from Sharia law. It was overturned on appeal, but the judges in our courts in about fifty cases had done more to advance the case of Sharia law. Already in Great Britain, in areas where Moslems are dominant, Christians may not evangelize, a clear restriction on religious liberty in a nation which was noted for its religious liberty. Already, there have been effort sin flint Michigan to stop street preachers from seeking to proclaim their message. While I believe in religious liberty and my ancestors and predecessors fought for it, I do not think it is wise to give freedom to those whose very intent will be to stifle debate, who will insist that Christians look on their Savior, the Son of God, as a mere prophet, who will want to carry out the decrees of their faith by executing those who convert to the Christian Faith (which Islam looks on as Apostasy). Roger Williams, if memory serves correctly, mentioned freedom of religion for Catholics, Jews, and Moslems, and the first synagogue in the New World was built in Rhode Island (and it still stands at the last account I had). Catholics are well established in that state and so are Moslems. But it will be strange to see the original advocates of freedom of religion, liberty of conscience, the people who enacted such a right by law began to lose their freedom. And in which one of the Moslem countries do Christians dare to preach their faith with freedom, especially to evangelize others?