Veiled Threat: Should we worry about Sharia law?

Someone recently asked me to sign a petition asking Congress to pass H.R. 973, which would “prevent the misuse of foreign law in Federal courts, and for other purposes.”

I refused, because I felt certain that this was another ill-informed and unnecessary attempt to make sure we’re not all living under Sharia (Islamic) law in a year. I decided to research the matter fully, however, because ask me about Sharia law surprisingly frequently, and it’s important to me to have well-reasoned answers beyond: “That’s ridiculous. Not gonna happen.”

The bill was introduced on March 9, 2011, by Rep. Sandy Adams of Florida. It seems as if it has pretty much died in committee, but several groups are petitioning in an attempt to revive it.

What you do want?

The bill seeks to amend Title 28 of the U.S. Code, which governs the organization and procedure of the federal courts. The bill would add this extra chapter to Title 28, Part VI (“Particular Proceedings”):

In any court created by or under article III of the Constitution of the United States [federal courts, in other words], no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law, except to the extent the Constitution or an Act of Congress requires the consideration of that foreign law.

At first glance, this seems redundant. The federal courts already use U.S. law except where the Constitution or an Act of Congress dictates otherwise. Why wouldn’t they? It seems comical to imagine any judge in the United States telling the parties: “Let’s mix things up today and use the laws of Swaziland to decide your case!”

To be fair, though, this isn’t entirely ridiculous. There are some instances where a federal court may need to interpret or even apply the law of another nation. For example, one type of case that lies within the jurisdiction of the federal courts is a case in which the opposing parties are “citizens of a State, and citizens and subjects of a foreign state” 28 U.S.C. § 1332 (a)(1) (2006 & Supp. 2010). If a citizen of Libya, say, sued a U.S. citizen in federal court for breach of contract, and the contract was formed in Libya under Libyan law, the U.S. federal court may find itself deciding the case based on Libyan law and not U.S. law.

In contract law, the contract is supposed to reflect the will of the parties. If the parties agree in the contract that Libyan law would govern the terms (as parties often do), then this bill would force the court to use U.S. law—in clear violation of the contract. This absurd result gets even more troubling when you consider foreign marriages or foreign adoptions. If two U.S. citizens have a beach wedding in Mexico, would a U.S. federal court still be able to decide whether the marriage is valid under Mexican law?

                                  

Why do you want it?

I doubt the supporters of H.R. 973 and similar measures, such as Oklahoma’s Save our State law, are deeply concerned with these finer points of international conflict of laws analysis. If a giant U.S. oil company deals with a giant Saudi oil company, and the two companies sign a contract under the laws of Saudi Arabia because both parties prefer it that way, who cares? They’ve done it for years, and we haven’t really noticed.

Instead, the concern seems to center on the story of Dearborn, Michigan.

During the 2010 election, unsuccessful Nevada-based U.S. Senate candidate Sharron Angle said this in a campaign speech:

We're talking about a militant terrorist situation, which I believe it isn't a widespread thing, but it is enough that we need to address, and we have been addressing it…. Dearborn, Michigan, and Frankford, Texas, are on American soil, and under constitutional law. Not Sharia law. And I don't know how that happened in the United States…. It seems to me there is something fundamentally wrong with allowing a foreign system of law to even take hold in any municipality or government situation in our United States.

http://www.huffingtonpost.com/2010/10/08/sharron-angle-muslim-law-_n_755346.html, retrieved 3/20/13.

Dearborn Mayor Jack O’Reilly was quick to confirm that the city was still operating peacefully and unremarkably under U.S. and Michigan law. He said that he believed the rumor started when a Christian who was passing out Bible tracts at an Arab cultural festival in the city complained of harassment. Before you dismiss Angle as a lone wingnut, however, note that Newt Gingrich, Michele Bachmann, and Herman Cain issued similar warnings in their campaign speeches. These politicians are addressing a key concern of their voters. According to a 2011 survey, 30 percent of Americans believe that Muslims wish to impose Sharia law in the United States. See http://publicreligion.org/site/wp-content/uploads/2011/09/PRRI-Brookings-What-it-Means-to-be-American-Report.pdf, retrieved 3/20/13.

Unfortunately, a single bad decision by a New Jersey state court judge has served as evidence that Sharia law is applied widely and must be stopped. In S.D. v. M.J.R., the judge failed to grant a wife a restraining order against her husband, who had sexually assaulted her, because the husband did not have the necessary criminal intent. In other words, the husband did not commit abuse, because in his mind, he was exercising his right as a husband, and what he was doing was not abuse. The husband’s lawyer called an imam to testify that the husband’s religious beliefs allowed him to beat his wife and have sex with her when he wished. 2010 N.J. Super. Lexis 143. While this outcome was overturned by the appellate court—and was denounced by Muslim legal scholars—the damage was done. While the lower court’s verdict was shameful and incorrect, I don’t think it’s accurate to say that this was an application of Sharia law.

It is conceivable; however, that Sharia law itself can be applied in divorce cases for those married according to Islamic law in the United States. A New Jersey judge ordered a husband to pay his wife $10,000 as a dowry when they divorced, because their Islam-based marriage contract called for this traditional payment. The judge allowed the contract to stand after analyzing whether it was contrary to public policy. Odatalla v. Odatalla, 810 A. 2d 93 (2002)

How can I protect myself?

These rather isolated cases don’t concern me. It seems clear that if you do not want to be governed by Islamic law, the solution is simple: Do not become a Muslim. Do not visit a country that is ruled by Islamic law. Do not enter into a contract (marriage or otherwise) in which you agree that any disputes will be adjudicated based on Islamic law. Other than that, as a U.S. citizen living in the U.S., you won’t wake up to find yourself governed by Sharia. No public laws or Constitutional amendments are necessary.