MINITER: American ban on applying sharia is far-sighted, not bigoted
Suddenly the 7th century laws of Islam, collectively known as sharia, have moved to the center of American politics. Several GOP presidential contenders came out against sharia in a recent CNN candidate debate.
Last year, 70 percent of Oklahomans voted for a referendum to bar their courts from relying on foreign law, including sharia. Seven other states are mulling similar measures.
Drawn from the Koran, sharia treats men and women, as well as believers and nonbelievers, unequally. Under sharia, women have fewer rights, while homosexuals, children and nonbelievers have virtually no rights.
Some versions of sharia even bar non-Muslims from testifying against Muslims. Sharia says people who convert away from Islam must be killed, adulterers stoned to death and thieves’ hands cut off.
Of course, the Council of American Islamic Relations (CAIR) immediately filed suit to overturn the Oklahoma law, saying it is “anti-Muslim” and violates Muslims’ religious freedoms.
These are desperate arguments in favor of a dangerous cause. Before debunking these poisonous claims, let’s remember some important principles that the critics have forgotten.
Equality before the law relies on the idea that every person in the United States is governed by the same law to the same degree. Allowing sharia to apply to cases involving Muslims might seem like sensitivity, but it is nothing more than subjecting one set of Americans to one law and another group to another law.
It also creates a conflict when Muslims and non-Muslims meet in court. What body of law should be used to judge the case? Currently, the case is clear: the laws passed by the duly elected representatives of American citizens. But sharia creates a second body of law for Muslims. In practice, sharia would govern non-Muslims, when a mixed-religion couple fights over child custody or the right to divorce. Or consider a recent Minneapolis case in which a Somali-born taxi driver refused to carry a passenger who bought wine because alcohol is banned by Islamic law. Or another taxi driver who refused to allow a blind woman’s guide dog because Islam considers dogs to be “unclean.” Or a non-Muslim Florida woman fired by a Muslim charity when she ordered a pizza with pepperoni. Pork is forbidden by Islam. Or another Florida woman who wanted to be veiled for her driver’s license photo? Sharia simply adds another dimension to these already-fraught disputes.
Remember, too, that democratic legitimacy relies on the idea that the governed have a say in shaping the law that they must live under through their elected representatives. American voters cannot change the content of sharia, which is regarded by some Muslims as holy writ and unchangeable by humans. Should a woman be denied her rights as an American because she is Muslim?
Nor should foreign law govern Americans, except where agreed by treaty in maritime and related cases.
When judges make decisions by citing precedents in other countries (such as sharia), they undermine democratic legitimacy. Americans had no chance to influence the outcome or participate in the debate over laws written in Zimbabwe, Canada or any other nation. And yes, the U.S. Supreme Court has cited precedents in those and other countries. It is only a matter of time before they cite sharia.
Foreign precedents are usually used by judges who want to make new law, not enforce existing statutes — a prospect a growing number of voters see as an abuse. Using foreign cases or laws allows judges to cherry-pick the precedents that please them and ignore the ones that do not support their aims. U.S. Supreme Court Justice Antonin Scalia ridicules this practice as “looking out into the crowd and picking out your friends.” It makes law unpredictable, impossible to obey and, for those reasons arbitrary and tyrannical.
As for the Oklahoma referendum being the work of “bigots” who are “anti-Muslim,” as the Council for American Islamic Relations spokesman charmingly put it recently, nothing could be further from the truth. Banning sharia simply reinforces legal practice that has stood for centuries — binding precedents can only emerge from American courts and American lawmakers.
To see the full foolishness of CAIR’s claim, consider: Is it anti-Semetic that civil courts do require divorcing Jews to get a Get (permission to divorce)? Is it anti-Catholic if civil courts do not enforce the Vatican views on abortion or birth control against Roman Catholic women?
Aside from Iran and Saudi Arabia, few Muslim countries have sharia. How can it be anti-Muslim to live as a majority of the world’s Muslims do — without sharia?
Which sharia should apply? There are four major Sunni Islam codes of sharia and two major Shiite sharia codes. If we allow only one, some Muslims will be upset. If we allow all six, what happens when they conflict?
While the U.S. Constitution forbids Congress from banning religions or limiting worship, it also makes clear that secular, not religious, law governs. Allowing sharia amounts to establishing one religion over another. There needs to be a separation between mosque and state. Nothing in a sharia ban would stop Muslims from praying five times daily, fasting during Ramadan, going to Mecca, or otherwise following their faith.
Some Democrats are tempted to shore up their slipping support by wooing Muslims, as center-left European parties do. Fine. But let’s not lose the supremacy of secular law and the nation of equality in the race to win elections.
Richard Miniter is the author of Mastermind: “The Many Faces of the 9-11 Architect, Khalid Shaikh Mohammed.” Miniter’s website is www.richardminiter.com.
