It all began in 2003 in the most unlikeliest of places: Ontario. When a Muslim group sought to offer Islamic arbitration and mediation services to the community, nobody imagined that it would trigger a wave of anti-Muslim hysteria. After initially defending the right of Muslims to do what others had been doing unhindered, the Ontario government caved to opponents and ordered a review. Despite the review's qualified support of religious arbitration, the ensuing "moral panic" garnered worldwide attention, and forced the sitting Liberal government to ban religiously based family law arbitration in the province in 2006. In a first on a controversial issue, both opposition parties concurred due to the public outcry over the potential abuses that may arise.
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of "Sharī'ah" law. They hope to join the eight states that have ostensibly banned it to date.
In August 2012, just one month after the State of Kansas passed Senate Bill 79 banning the use of foreign law, a state court found its hands tied when Elham Soleimani sought the enforcement of the mahr (payment from groom to bride, a portion of which may be contingent on divorce) provision in her Islamic marriage contract. Elham's claim failed, thanks to the law which State Senator Susan Wagle introduced as "a vote to protect women." Elham would beg to disagree.
Essentially the court took the position that enforcing the Islamic contract would violate the foreign-law ban and the "separation of Church and State [doctrine] under the Establishment Clause of the First Amendment" of the U.S. Constitution.
These debates exemplify the contemporary concerns regarding religiosity in the public sphere and the place of Islam in Western nation states. Sadly, the mobs influenced by Islamophobia and hysteria appear to be directing the state response in too many jurisdictions.
Anti-Sharī'ah advocates have cited a number of cases to back their tenuous claim that Sharī'ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis in virtually all North American jurisdictions.
The movement to ban foreign and/or religious law, according to the New York Times, is the brainchild of an Islamophobic lawyer, David Yerushalmi, who has been described by the Anti-Defamation League as having a record of "anti-Muslim, anti-immigrant and anti-black bigotry." As the Times documents, after the Oklahoma "Save our State" measure was struck down as unconstitutional for singling out Islam, Yerushalmi turned his mind to draft a model statute known as "American Laws for American Courts" for the American Public Policy Alliance. With the help of its Islamophobic allies, the Alliance has managed to have more than 71 pieces of legislation adopt the language to date. The model law is silent on Islam, but as pointed out by Daniel Mach and Jamil Dakwar of the ACLU, their intent "is unmistakable." They wrote:
"... these efforts are rooted in the baseless idea that U.S. Muslims wish to impose Islamic law on Americans. Proponents of these misguided measures ... clearly seek to ride the recent wave of anti-Muslim bias in this country."
There is no creeping Sharī'ah overtaking Western legal systems (certainly not North American), but plenty of plain bigotry in the form of Islamophobia. The evidence suggests that courts treat claims by Muslims using religious law the same way they deal with claims brought by those of other faiths and those of no faith--sometimes they are accepted and sometimes they are rejected.
The nuanced, case-by-case approach that has evolved in Western courts, applying constitutional norms, the principles of comity, contract law, and public policy, provides sufficient checks to ensure that courts do not become impermissibly entangled with religion and do not allow for Islamic law, or any religious or foreign law for that matter, to become the law of the land.
We certainly don't need the mob to tell our courts how to uphold our constitutions. Perhaps our politicians need to be reminded that constitutions and independent judiciaries are our best defenses against the oppression of both minorities as well as the majority.
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