Sharia in America? Oh NO!

In the recent elections which saw a conservative backlash against all things moderate and liberal (remember most of the Democratic seats lost in Congress will be so-called Blue Dogs, many of them Pro-life Democrats, who like Bart Stupak saw Health Care Reform as being essential but were called baby-killers even though they were strongly anti-abortioin -- but that's another debate).   One of the measures that passed in this election cycle was a restrictive piece in Oklahoma that would forbid Oklahoma courts from considering international law or Sharia in their findings.  70% of the voting populace supported the measure, and its likely to crop up other places.  A judge has stayed its implementation pending appeals (I believe) on the basis that it likely conflicts with the Constitution.

Listening to some analysis recently it was pointed out that this measure is first of all discriminatory because courts take into consideration all the time Jewish and Christian and other religious laws and teachings in settling estates and other legal matters.  The same would be true of estate plans for Muslims, who use their own religious teachings to guide implementation of their wills and estates.  This would preclude that possibility.  There is, of course, another problem with the law since it would essentially abrogate treaties and other agreements that are based in international law.  Businesses in Oklahoma may see a chilling effect as companies decide that this isn't a good climate to do business.

So, why this new law?  Well there seems to be this fear that Muslims will take over the country if they are given any place in society.  Give them an inch and they'll take a mile.  That's why there is an effort to unseat Keith Ellison, the first Muslim to serve in Congress.  It would seem that many Americans want to make the country a Muslim free zone.  But how does this square with our own Constitution, which guarantees Americans the freedom to practice their religion as they please.  Of course, US Law always trumps religious law, if those teachings/practices conflict with the law.  Thus, we can't follow the teachings of Deuteronomy and stone our kids if they back talk or eat too much (Deut. 21:18-21).  We've figured this out, and can do the same with Sharia, which in any case isn't an established set of laws, but a variety of laws, rules, and regulations that vary from culture to culture.  The reality is that only a few rather radical Muslims would even think about imposing such a requirement on the whole populace.  

So, what's the problem?    Is this not another example of a growing anti-Muslim sentiment in America?  Is this fear any different from lingering fears that have suggested that Jews are trying to control the nation by controlling the banks and other levers of society?  By singling out a particular religion, this law has abrogated the first amendment rights of Muslims in Oklahoma to have their own practices taken into consideration when in the legal system.  We wouldn't think of doing this with Christians or Jews, but it apparently is okay for us to treat Muslims in this way.  Or, is it? 


Rial Hamann said…
People in this country need to realize that our "laws" are a compromise of many legal systems and codes. It may very well be that some elements of Sharia law might be well worthy of being transformed and adopted.

John - I invite your comment.
John said…

Here is the heart of the new law, Oklahoma's State Ballot Question 755:

The [Oklahoma courts], 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. . . .

My personal response, from a technical perspective is that the new law is absolutely unConstitutional. The kinds of analysis which will shoot down the law include the fact that it does not have a secular purpose, that its primary effect advances and inhibits religion, and that it fosters an excessive government entanglement with religion. Further, the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group.

Other bases include the violation of the Full Faith and Credit provision which require a State to give full faith and credit to the law of other states (and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law,); the Due Process Clause, the Commerce Clause, the Impairment of Contracts Clause,... State Ballot Question 755 simply cannot stand scrutiny.

On a personal level, I see the passage of the new law as an expression of Christian counter-Sharia, stemming from a mindset of fear and panic, which has been stoked by fascist leaning media and politicians into a horrific and wholly un-American anti-Muslim frenzy.

The Nazi misadventure was theologically rooted in the notion of the divinely wrought Aryan Nation. The American fascist movement is theologically rooted in the notion of the divinely wrought American Exceptionalism. I think that one of the core tenets of fascism is the notion that the demand for strident nationalism trumps civil rights, especially the civil rights of minorities whose very existence has been identified as threatening to the welfare of the divinely inspired nation.

For the Nazi’s, the primary threat to the Aryan nation was identified as coming from the Jews and the Gypsies and the handicapped, and from non-Aryans in general, and from those who would seek to protect them. For the contemporary American fascists the current threat to our nation is perceived to be from Muslims and homosexuals and illegal aliens (and maybe still from blacks, Jews and Catholics, as in former years), and those who would seek to protect them.

Make no mistake about it, the Republican Party is being led by and has begun promulgating a fascist agenda. Having identified the threat from minorities within our boarders, their objective is to vilify them at every turn and see to the systematic dismantling of their civil and human rights, and that this targeting against internal minorities is being undertaken in the name of patriotism (the Patriot Act) and American Exceptionalism.

Rial Hamann said…

I understand as a premise what you said. What I was hoping you might comment on was:

"It may very well be that some elements of Sharia law might be well worthy of being transformed and adopted."
Robert Cornwall said…
I wanted to take this opportunity to point out that John has taken his comment top-side, so to speak -- and expanded it in a guest post. I'd encourage readers to turn to that piece for additional analysis.


Marvel Boy said…
I know I'm taking this conversation in a new direction--and I'll get to John's response shortly--but the "anti-international" part is also troubling. Of course the Supreme Court's Justice Kennedy--a conservative appointee--somewhat frequently refers to international legal precedents in his decisions. Jurists from the right have taken him to task for these references, and I wonder if their ire is more fuel for this legislative fire.
David said…
Are you talking about the probated woman's rights Rial? We were here longer for goodness sake! (...yes dear, we're just being silly).
John said…

You would need to point out what those are and we could discuss them individually. But I am unaware of any provisions which we might want to look at offhand.


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