In 2008 a Moroccan man and his 17-year old wife immigrated to America. Not long after she filed a restraining order against him, claiming her husband was raping her. The husband did not deny their sexual relations were non-consensual, but said that in his religion, the wife was supposed to submit and do all that he desired of her. The New Jersey judge found that given his understanding of Islam, he did not intend to commit a crime, and was therefore innocent. The restraining order was denied.
Cases like this set off alarm bells that shariah law is coming to America, and in fact is already here. Called “creeping shariah,” this case is given as just one further example of the United States nation forsaking its heritage in an effort to be politically correct and yield to the pressures of local Muslims to live by their own laws, and not our own.
But according to Eugene Volokh, a conservative law scholar at UCLA, it is quite the opposite. Where US judges have made reference to shariah law, they do so within parameters long established in American legal precedent. He notes, importantly, that the judge in the New Jersey case made a legal error, overturned by a higher court which granted the restraining order.
In the effort to understand this controversial and inflammatory subject, his explanation proved very helpful. Here is a list of what is and is not allowed in the American judicial system:
Allowed: Distribution of inheritance according to religious motivation
Not: Asking the court to divide inheritance according to shariah law
US law allows freedom of contract and disposition of property. One may divide one’s property in a will according to whim, or ask a religious scholar to divide it according to shariah law. But the court does not accept competency to interpret religious laws, and would reject a request asking it to do so.
Allowed: Application of foreign law to determine marriage or overseas injury
Not: Specifics of foreign law against US code or procedural discrimination of testimony
US law will accept that two foreign individuals are married if they were legally married according to the law of their country of emigration. If in foreign nations marriage is determined according to shariah, then US courts must take this into consideration for the determination of marriage in a domestic dispute. Foreign acceptance of polygamy, however, has no application in US courts.
Similarly, if an American is injured abroad and sues a company with representation in America, tort laws are determined by the nation in which the injury occurred. But should foreign tort laws limit the value of female testimony, as for example in some understandings of shariah, this has no carry-over consideration in the American lawsuit.
Allowed: Exemption from work rules for religious reasons
Not: Unless it imposes ‘undue hardship’ on an employer or is against government interest
US law permits reasonable accommodation for religious belief, evaluated on a case-by-case basis. So wearing a hijab at work or taking time from the work day to pray may or may not be granted, based on the nature of the employment in question. A famous ruling allowing Muslim taxi drivers to decline a customer carrying alcohol may or may not have been judged correctly, but what is important is that it was based on existing American precedent, not in understanding what is right in Islamic shariah.
Allowed: Granting accommodation to students or clients that impose only modest costs on the granting institution
Not: Evaluation of these requests on the basis of which religious group asks for them
US law allows public and private institutions to better serve citizens and customers by appealing to their religious sentiments, as long as this does not damage the public interest as a whole. Banks have offered sharia-compliant loans, for example, and schools with high density Muslim populations have granted a full day off on holidays rather than just excusing Muslim students. Examples of this sort apply equally to all religious petitions, and must not be judged on the basis of which religion benefits.
Allowed: Efforts to legislate Islamic morality in heavily populated Muslim areas
Not: Unless it violates the Free Speech Code or Equal Protection Clause
US law permits citizens to lobby government to pass laws reflective of morality. In local areas therefore, Muslims are as free as others to pass legislation barring alcohol, for example. Should any locality, however, seek to encode restrictions on “blasphemy” or limit the rights of women, it will stand in clear violation of existing US law and be struck down by the courts.
In addition to Volokh’s analysis, New York attorney Sadakat Kadri wrote in Heaven on Earth: A Journey through Shari’a Law from the Deserts of Ancient Arabia to the Streets of the Modern Muslim World, that US federal arbitration law has been on the books since 1925.
Arbitration law has legitimized religious tribunals for Christian conciliators and the Jewish Beth Din, giving them force of law to issue legally binding decisions. To deny similar right to Muslims, within the context above, would require reforming that law to impact all religious communities.
There are many cases offered by those who warn of creeping sharia, and each must be evaluated on its own merits. There may be examples–many or few–in which the above descriptions have been violated. The above is offered to all who have been affected by the clamor that “the Muslims are coming.”
Indeed, they are already here and are coming as citizens within a nation of laws. They are undoubtedly changing the demographic and culture of our country, as every set of immigrants has done before. That they are Muslims, outside of the general Christian heritage of most previous groups, does add a different application of the American guarantee of freedom of religion. It may also result in these newer Americans who, either unaware or rejecting of American liberty, seek to illegally restrict individuals in their own communities.
But throughout the nation’s history the constitution and bill of rights has worked remarkably well. It should be trusted to continue, no matter the unfamiliarity of those who believe also in shariah. The United States will honor them within reason, and curb any excess that violates our order. On many issues worthy debate must take place. But we must not let fear or demagoguery permit generalization or discrimination.
Let the law decide.
This article was first published at the Zwemer Center.