New laws to prevent courts from considering Islamic laws in their decisions have been proposed in half of the states. Last November in Oklahoma, a ballot measure to that effect passed with a 70% margin. The Council on American-Islamic Relations (CAIR) immediately challenged the new law, arguing that it violates the Establishment Clause of the Constitution, which forbids the government to favor one religion over another. U.S District Court Judge Vicki Miles-LaGrange ruled in their favor, blocking implementation. Although the measure did not mention Sharia, the ballot campaign left no doubt that Islamic law was its target. Supporters warned voters that Muslims were perpetrating a stealth program to undermine America by supplanting our law with Sharia. The case has moved to a panel of judges from the 10th Circuit Court of Appeals.
Lawyers for the Oklahoma Attorney General filed documents with the court defending the referendum’s constitutionality, arguing that “(t)he measure bans, equally, all laws from other nations or cultures, including, but not limited to international law and Sharia law.”
Opponents of the referendum responded that it has the principle effect of stigmatizing Islam and denying Muslims equal protection under the law. They allege that “(t)he measure constrains the ability of Muslims in Oklahoma to execute valid wills, assert religious liberty claims under the Oklahoma Religious Freedom Act, and enjoy equal access to the state judicial system.”
Atheist groups oppose, on the principle of separation of church and state, implementation of Sharia law in the nations of the Arab Spring that overthrew secular governments. In those cases, there is a real danger that a Muslim theocracy would be set up. But the supporters of anti-Sharia laws in the US are not secularists, but the Christian activists whom we oppose on every Establishment Clause case.
There are surely no judges who, upon finding that a US law contradicts Sharia, would decide that they had to set aside the law of the nation or their state. Yet there are numerous web sites, such as creepingsharia. wordpress.com, sheikyermami.com, jihadwatch.org, and shariahinamericancourts.com, that claim that Sharia is already taking over the country.
I looked over cases that these organizations cite as proving that Islam is making inroads in US Courts, and found them distinctly unconvincing. Sharia has become an issue in court cases involving marriage and divorce, contract enforcement and the enforcement of rulings by foreign courts. In cases of marital disputes, courts have shown a particular disposition to set aside the judgments of foreign courts that are inconsistent with the public policy of the trial state. For example, a court in Maryland set aside a custody award from Pakistan to the father in a divorce because the foreign court had not taken into account the best interest of the children.
Probably the best evidence of “creeping Sharia” was the initial ruling in a New Jersey divorce case. The wife asked the trial court to grant a restraining order against her husband, to forbid him to harass and assault her, or to force her to engage in nonconsensual sex. The trial court refused to issue a final restraining order against the husband because he believed it was his religious right to have non-consensual sex with his wife, which precluded the possibility of criminal intent, as required by state law. The New Jersey appellate court reversed the ruling, and declared that the trial court erroneously allowed the husband’s religious beliefs to excuse him from New Jersey’s criminal code. It ruled that “knowingly” forcing sex acts upon his wife was all that New Jersey required to justify a restraining order. “Creeping Sharia” was overturned upon appeal.
If allowed to stand, these anti-Sharia laws would seem to prohibit courts from enforcing private contracts that include Islamic provisions, such as arbitration by a Muslim scholar. I think they will be overturned, although there may be differences between the laws adopted by different states.