It's Already Illegal

Monday, February 28, 2011

I ran into an interesting article over at Salon that discusses the current enthusiasm among conservatives for making it illegal to follow sharia.

[A]n anti-sharia movement is growing in the United States. Last year Oklahoma voters approved a measure that bars courts from considering sharia. Similar measures have now been introduced or passed in at least 13 other states. Indeed, anti-Muslim political operatives have been warning of "creeping sharia" and "Islamist lawfare" for years, though the anti-sharia efforts have gained new prominence in recent months. [links removed]
I vehemently disagree with many aspects of Justin Elliott's article, but three things in particular stand out, namely: (1) he pooh-poohs the threat to our rights posed by Islamist lawfare; (2) he sweeps aside legitimate concerns about Moslem enclaves ignoring our laws; and (3) he smears anyone concerned with such a threat as "anti-Muslim." (While I am morally opposed to religion, I do recognize the right of anyone to practice any religion he pleases, so long as he violates nobody else's rights in the process of doing so. I also recognize that individual followers of any religion can see the merits of "live and let live" regarding such matters.) These flaws, combined with its thoroughness in other respects do the cause of liberty a disservice.

That said, here are two things that do come up in the article that I think are interesting and helpful to keep in mind for anyone concerned with the threat of Islamist lawfare. First, there are times when sharia is a legitimate consideration, as interviewee Abed Awad points out:
In the past 12 years as an attorney, I have handled many cases with an Islamic law component. U.S. courts are required to regularly interpret and apply foreign law -- including Islamic law -- to everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, probating an Islamic will and the damages element in a commercial dispute. Sharia is relevant in a U.S. court either as a foreign law or as a source of information to understand the expectations of the parties in a dispute.
If considering sharia in this delimited way still ends up resulting in a violation of individual rights, perhaps that can be remedied. (I'm hardly a legal expert, nor am I a legal philosopher, so my speculation ends on that matter for now.) From the next point, though, it would appear that even this much may not be a problem.

Awad indirectly brings up a far more important point:
As long as a provision in Jewish law, canon law or sharia does not offend our constitutional protections and public policy, courts will consider it. Otherwise, courts would not consider it. In other words, foreign law or religious law in American courts is considered within American constitutional strictures.
The elephant in the room here is that our laws are intended to protect individual rights, or (if our courts were in the habit of living up to that intention as a matter of principle): Sharia, in the sense that many people are concerned about it, is already illegal. Furthermore, as the article says, it is actually illegal to forbid following it (to the extent that doing so does not violate the law of the land).

I cannot help but note a similarity between this push from the right to an age-old fixation of the left: the drive to regulate every aspect of our lives. As a commenter to that post put it (and frequently comes up):
But what about fraud, one may ask. That is not solved by regulation. Fraud would always be illegal and is best handled through law enforcement. Regulation does nothing to stop it. Observe the Bernie Madoff fiasco. He complied with all regulations, and still committed a massive fraud. [emphasis added]
The real question here isn't, "Should our laws protect us from religious meddling or fraud?" They should. Rather, it's this: "Why are we being asked to support laws that are unnecessary at best -- in the name of doing something the law already does?"

-- CAV

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