Consider the case of a newlywed couple from Morocco that appeared in court in 2008 (Kim, 2014). This particular case involved the wife seeking a restraining order against her husband who apparently was raping her constantly. While her case was legitimate and called for, the judge refused to issue this restraining order because there was no wrongful intent as per the necessity for sexual violence acts. Any wrongful intent is necessary under the precepts of Islam, which permits husbands to have coerced sex with their wives. Therefore, as a result, decisions dispensed by the judicial system according to Islamic law violate fundamental rights of litigants, and have led to the support of a prohibition against them in U.S. state courts. This prohibition goes to the extent of not applying, considering, or even interpreting the Islamic law within American judicial systems. In the implementation of a prevention scheme, some states have proposed the implementation of laws and initiatives that bar judges from the use of foreign judgment that outwardly violate the constitutional rights of the federation.
When Oklahoma passed an amendment to the constitution barring the consideration of sharia laws, this issue went national and a discussion throughout the country ensued. The fundamental statement of the law stated, “The courts shall not consider international or sharia law.” While this transpired, a federal court blocked this amendment because the banning of sharia law from all legal proceedings undermines religious liberty enshrined under the first amendment (f1.4). Notwithstanding the court’s decision, within a number of states, legislations are amassing regarding the sharia ban due to an increasing number of notorious cases where judges apply sharia law or enforce them in their judicial proceedings, commensurately, resulting in a gross violation of rights. Regarding the constitutionality of anti-sharia law, a clear divide exists within the legal community. Some of its proponents say that an enforced legislation against the use of sharia in the courts of America preserves fundamental rights of American values enshrined in liberty and freedom. Moreover, according to these proponents, an anti-enactment would resultantly protect the constitutional rights of Muslims residing within American sovereign soil. While this is the case, the U.S. is taking pertinent steps to prevent the consideration and implementation of sharia law.
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Methodology
Since the start of 2010, bills amounting to more than 201 penning against the implementation of anti-sharia laws have seen an unprecedented introduction and some implementations within 43 states. Last year alone saw the enactment of anti-sharia laws within 14 states: Texas and Arkansas being the latest entrants. As such, the use of legal means and legislations remain the most versatile methodology for the vetoing of sharia laws from their implementation within American judicial systems. Largely the work of groups non-inclined to the Muslim agenda, institutions such as the American Freedom Law Center and ACT for America, are spearheading this repeal and non-acceptance of Muslims and their precepts within American judicial systems. In doing this, these groups use various strategies that involve the simultaneous sensitization and implementation of agendas through cross-country rallies.
The initiator of the anti-sharia law movement, who serves and the co-founder of the American Freedom Law Center (AFLC) and the General Counsel of the Center for Security Policy, is David Yerushalmi ("Anti-Sharia law bills in the United States", 2018). Through the initiation of pertinent objectives, the AFLC has pushed its agenda and initiative dubbed the American Laws for American Courts (ALAC), principally authored in 2010 by Yerushalmi (Elliott, 2011). While the ball is currently rolling for the implementation of an anti-sharia stance, most fundamentalist groups adhere to the fact that within the judicial courts, the influence of Islam is rising ("Anti-Sharia law bills in the United States,” 2018). As Guy Rodgers puts it, “Before the train gets too far down the tracks, it is time to put up the block,” a stark analogy of the influence of Islam within the judicial system. The implementation of anti-sharia legislation across the country amalgamates the model espoused in the American Laws for American Courts legislation published on the website that deals with the American Public Policy, the APPA. In their efforts, the language introduced constitutes a clause within the law, which prohibits the implementation of foreign law in courts, which would ultimately result in the emergence of a conflict of interest with constitutional or statewide rights.
Across the country in the United States of America last year, thousands marched against the introduction of sharia law within its constitutional precepts (DeKok & James, 2017). These protesters denounced the legitimacy of sharia law in its perceived moral code citing that such decrees within the land pose a threat to American liberty and freedom (DeKok & James, 2017). While these condemnations transpired and still transpire, critics often result in defining them as anti-Muslim inclinations, thereby, painting a negative picture in spite of the retrogressive decrees it has regarding women and children; the most significant elements of the society.
Findings
The events of September 11 2001 shook most Americans to the core, making them decidedly uncomfortable with the sharia law concept. Thus, the fear of sharia law application has resulted in the United States predominantly implementing pertinent steps and efforts to ban them within the court system. Increasingly, Americans hold the belief that the attacks on the Parisian magazine, Charlie Hebdo, have potentially catalytic effects. Due to the events that transpired in Canada and the United Kingdom, it is presently more than likely that within America, new targets will be less-formal methodologies attuned to the alternative resolution of disputes, whereby, the interpretation and implementation of sharia law finds an outlet. Often, alternative dispute resolution finds its popularity in the use of arbitration as a cheaper and faster version of resolution than the decrees accorded by the court. In addition, aside from its interpretation of being efficient than in-court decisions, the use of arbitration strategies accords the belligerents a means of formulating their own rules and decisions regarding the implementation of a unanimous settlement. Therefore, given the striking dissimilarity of religious precepts in the provision of laws that settle disputes, compared to secular laws, major concerns within America center on the rights of vulnerable groups especially women and children, and the possibility that they may be disadvantaged.
In Ontario, Canada, a backlash arose regarding the creation of an institution attuned to the provision of sharia law, the Islamic Institute of Civil Justice. This organization had the focus and professed the intention of setting up a tribunal that would arbitrate cases through the implementation of sharia law (Farrow, 2011). In declaring this, the epicenter of an uproar originated from rights advocacy groups that mostly entailed women and children, leading to the establishment of the Family Statute Law Amendment Act (Bakht, 2007). The act, enforced within Canadian precepts and laws resulted in the creation of a substantial ban only allowing matters that pertained to the family to receive arbitration in concordance to the law of Ontario. Among western countries, the United Kingdom gives increasingly permissive precepts to the use of arbitration through the implementation of sharia law.
However, in light of this, the UK’s arbitration act of 1996 continually prohibits all kinds of arbitration except those within matters alluding to civil law (Sisson, 2015). Therefore, while arbitration is certainly a reality in the UK, they keep a tighter leash on it than the Canadians. Within the UK, a rising suspicion of the precepts of sharia law has resulted in the careful analysis of the 1996 act and the recommendation of a more direct ban through the “Equality” Bill that would amalgamate pertinent family considerations in matters that deal with arbitration. As such, through careful examination of the modes and debates dealing with sharia law, as espoused in the resolution of alternative disputes both in the UK and Canada, one clearly understands the options available and open to the United States for an initiation of attacks on sharia law. This is because; the fears that are leading the U.S. to ban sharia law are considerably similar to those concerns that surround the reforms of sharia within Canada and the UK (Sisson, 2015).
To bring a close-knit understanding of the need for anti-sharia laws within American soil, and the need for the implementation of germane legal strategies, it is of an utmost significance to comprehend its potential threats, and consider possible solutions. As such, the United States can borrow a leaf through strategies implemented both in Canada and in the UK in order to preserve and minimize the application of sharia law within communities preferring the resolution of disputes alternatively.
Sharia Law
The understanding of sharia law is pertinent for the dissemination of its resistance in America, and the progress of steps needed to refute its implementation within the judiciary. By definition, and in its broadest sense, sharia law fuses certain precepts such as dictates of the divine nature, clerical analogies, and customary laws to produce resultantly, both criminal and civil laws, codes that dictate personal conduct, and religious mandates. Therefore, because of its broad scope, some individuals assert that “sharia law” brings about a misnomer, given that the nature of sharia is primarily a shadow of aspirations within a society that becomes binding when adopted in the law (Grunert, 2013). Through such adoptions, a significant basis portends of the national law in countries such as Saudi Arabia, Yemen, Kuwait, the United Arab Emirates, and Bahrain. From four perceived sources, the interpretation of sharia law becomes validates. These sources include two principle ones, from the Quran and the Sunna. The rest are a strict adherence to practices such as the Ijma and the Qiyas. Moreover, a somewhat contentious source, the Ijtihad represents sharia laws, though it is not referred to frequently nor used under its precepts regularly.
In the interpretation of the three sources of sharia law, the Quran – the central book of reference for the Islamic faith – is a central pillar. While the book itself does not contain divine legal precepts and decrees such as the Ten Commandments of the Bible, Muslims use it as the central source of earthly Islamic law due to the legal suggestions found within its otherwise, religious, moral, and devotional content. Factually, close to 350 words within the 6,235 verses of the Quran contain leading legal precepts. Sections such as the ayat al ahkam accord the fundamental basis of Islamic legal instruction in life dockets such as marriage, inheritance, divorce, criminal law, and transactions (Kamali, 2008). The second most significant source of sharia, the Sunna, collected and recorded the tales of the life and actions of Muhammad. Within the Muslim world, great eminence is habituated to the Sunna since the Quran itself states that Muslims are not only to obey God, and Muhammad, but also that the exemplary life of Muhammad exhibits a pattern of conduct worthy of emulation. While it may not be ascertained, the sayings, teachings, and acts of Muhammad were preserved within reports entitled the hadith, and were compiled to create the Sunna during early Islamic years by religious scholars.
The third sharia source, the Ijma refers to a consensus reached among a people. The consensus, which alludes to an agreement among a people, may take place through religious scholars or ones known as the “ulama.” As such, under some derivations, necessary consensus for the Ijma has to occur among the Muslim community generating an acceptance among them. Within the implementation of such consensus, whether scholarly or public in nature, the Ijma accords authentic sources for the determination of acts attuned towards morality and specifically addressed within the Quran. While a consensus is reached, the infallibility of the community’s decision becomes final. An authority for the Ijma and its use in the implementation of the sharia law, bases its authenticity on the belief that the Muslim community can never unanimously agree upon errors.
As the fourth pillar, the interpretations of Qiyas fill in the gaps left in the event of disagreements within the community. As with the third pillar of sharia law, Qiyas are an interpretation of the morality of actions, not addressed directly within the Quran. However, instead of being based on mass consensus, the Qiyas rely on divergent forms of clerical analogies, which involve the comparison of acts at loggerheads with the stipulations of the Quran. Therefore, their interpretation involves the comparison of contentious actions that defy similar happenings described within holy texts.
In light of these pillars, which are agreed upon generally by most Muslims, divergent Islamic schools offer their own interpretations to the contents of sharia laws. The two major Islamic branches, the Sunni and Shia, who split after the death of Muhammad and over a disagreement on who should be the most favorable leader, further exacerbates the rift between Muslims. On the Sunni side, their adherents follow and do their best to emulate the life of Muhammad, carefully mimicking his actions and modeling their lives along the tales of his character. On the other hand, those following the Shia doctrines focus on authorities and structures, believing that their faith’s leader be chosen from the descendants of Muhammad. As such, the religion of the Shia recognizes the installations of legal authority, while those of Sunni Islam do not. Moreover, rather than focus on the actions of Muhammad, those of the Sunni sect consider religious authorities – also known as muftis – in the determination of proper courses of action.
Arbitration Processes within America and Their Effect on the Implementation of Sharia Law
In the United States, decisions allowing individuals to solve disputes via the implementation of arbitration are noted as the fundamental basis of principles that deal with contracts. The leeway of making agreements in arbitration comes from an independence to contract and is enshrined by the Fourteenth Amendment (Sonoja, 2012). Thereby, under American common law, the protection of such agreements is upheld. Within the courts, respect for arbitrary systems occurs as long as the agreements are not tainted by vices such as duress, fraud, unconscionability, or incompetence. This means that according to law, the entrenchment and enforceability of such arguments results in their justification even though the overall outcome is contrary to the expected outcome of a U.S. court. While this is the case, the judgment also has to be concomitant to the contraventions of state statutes, or the constitution.
In the American judicial system also, the recognition of arbitrations is evident and is given immense weight. Under the common law of contracts, through the Federal Arbitration Act (FAA) and corresponding statutes and state laws, based upon the Revised, Uniform Arbitration (RUAA), the decree of arbitration is clearly pronounced, thereby, binding judges and lawmakers to the precepts of such directives. Therefore, such laws are continually making it hard for the implementation of anti-sharia laws: a case in point being the Moses H. Cone Memorial Hospital v. Mercury Construction Corporation , whereby, the Supreme Court espoused a long-standing policy depicting the liberalization of arbitrations (Sisson, 2015).
Sharia Law Bans Within the United States of America
Commensurately, in understanding the bans on sharia law and its progress, a brief background is inevitable. The Muslims of the U.S. make up less than one percent of the entire population. The Pew Research Center noted in their statistical estimation, which Muslims living in America make up an approximate number of 2.75 million. Every year, approximate amounts of 80,000 to 90,000 Muslims migrate to the U.S. (Sisson, 2015). Presently, of those currently living within the country, 80 percent are citizens while 70 percent are those born in another country (Sisson, 2015). Pew Research Center further states that those Muslim-Americans who consider religion their cornerstone of life are of the same number as Christians with a similar view, within the country. Considered to have more tolerance compared to Protestant-Americans, Catholic-Americans, and Jewish-Americans, Muslim-Americans within America generally demonstrate more tolerance and acceptance towards other members.
In regards to religious association, 65 percent of Muslim-Americans are adherents to the following of Sunni Islam, while 11 percent follow the decrees of the Shia sect. Sunni Islam adheres to Prophet Muhammad as their only leader, while Sunni Muslims endeavor to follow the customs and eccentricities of Muhammad. The sect of Shia Islam conversely focuses on an early descendant of Muhammad’s as its leader. The remaining 24 percent of Muslims living in the United States either follow Sufism or have no specific branch affiliations (Pew Research Center, 2007). As a stark alteration of both Sunni and Shia Islam, Sufism is divergent in that it focuses on mysticism and the strife for closeness to God.
Movements geared towards fear and discrimination of the Muslim population exacerbates the ban of sharia laws in American soil, as mentioned earlier. Moreover, since the incident of September 11 the Stop Islamization of America institution has focused its efforts on the spread of an intent geared toward the formulation of conspiracies against Muslim-Americans (Ali, 2011). While such organization are outright right-winged and highly radical, the U.S. government is allowing the permeation of their sentiments to the American public, increasingly augmenting the move towards a society geared on a totalitarian ideology focused on the ban of sharia law. As such, collectively, groups attuned to the resistance of the presence of Muslim interpretation of judicial laws have augmented significantly. Moreover, such groups have succeeded in the promotion of their message within 23 states.
The strategies such groups within America use include a host of communication techniques. Such techniques entail the use of books, reports, blogs, websites, and even the proliferation of speeches and rallies called to address the issue of sharia law. Moreover, to effect their ban strategy efficiently, these organizations employ the tactics of divide and conquer. They use small and localized anti-sharia grassroots campaigns spread throughout the country. Further as an important strategy, they employ the use of right-affiliated religious groups that are well known, to propagate the message of anti-sharia laws within the judiciary further.
Results
The implementation of a legal strategy in the reduction of sharia law implementation within the judiciary is taking effect gradually. As mentioned above, since 2010 from the introduction of such a stance by David Yerushalmi various legislations have been and are continuing enactment in the affected states. Moreover, such movements and other upcoming ones continue to affect and influence politicians, thus making them implement legislations that favor anti-sharia activists. Newt Gingrich, a former United States House of Representatives speaker, and a former candidate affiliated to the Republican Party in the presidential nominations, once had a description for sharia law as being a mortal threat to the freedoms and liberties enshrined within the constitution, and as such, a resultant threat to the world as we interpret and know it. Moreover, during a debate in the 2012 presidential race, Mitt Romney clearly and conversantly stated, “We are not going to have Sharia law applied in U.S. courts. That is never going to happen” (Sisson, 2015). This statement is a clear indication of the outright resistance to the implementation of sharia law.
Through such seemingly outright intransigence of the sharia law, the worldview of Islam pits the West against the East significantly, and causes the masses to have a perception that the West is in dire need of protection. While this has transpired within the last few years, as mentioned above, close to two dozen states have considered and are on the verge of enacting bills that ban sharia law from their courtrooms. Thorough persistent and consistent legal proceedings, campaigns, and other sensitization strategies, the results for the ban of sharia law are evident as more and more states are embracing the ides, terming it welcoming for the society. Most proponents of this move, as mentioned above cite family: predominantly, women and children, as the most affected. Besides, marital rape evidences continue to pile up and involve numerous cases throughout the U.S., a testament of the fight against the implementation of sharia law in America
Discussion
The motivation behind sharia law can be deduced to infer that American courts are using the precepts of sharia law in the wrong way, commensurately, resulting in threats to freedom and the rights of individuals. As such, while anti-sharia laws have been presented in various states, it is still unclear the remaining states that have considered this law. A good example here is Sarah M. Fallon, who compares the cases that have considered sharia law and those that have considered Jewish customary law. To put it in perspective, these cases mainly relate to customary proceedings, divorce, and commercial litigations (Sisson, 2015). As mentioned in the first paragraph, proponents of the ban on sharia law refer to the case of S.D v. M.J.R ., whereby, a woman alleged that her husband raped her repeatedly (Sisson, 2015). In this, the court ruled the husband innocent citing sharia statutes that give husbands leniency because wives are supposed to achieve their womanly duties within a marriage. From this perspective, the rise of anti-sharia laws has risen immensely (Stimson, 2010).
Since 2010, when the first manifesto against sharia laws was introduced, a continual trajectory of disgust and anger against its precepts has continually precipitated into the hearts and minds of the American people. In 2017, the increase of protests against an indoctrination of sharia laws rose significantly. More and more, people are siding with proponents with few actually showing tolerances. As time goes by, since more than 80 percent of the states are aware of such anti-sharia legislations, with close to half of them having already enacted such laws, the inevitable is bound to happen: a strong ban on anti-sharia laws.
References
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