The Sharia Myth Sweeps America: How And When Is It Used In U.S. Courts?

16 June 2011

By Amy Sullivan

If you are not vitally concerned about the possibility of radical Muslims infiltrating the U.S. government and establishing a Taliban-style theocracy, then you are not a candidate for the GOP presidential nomination. In addition to talking about tax policy and Afghanistan, Republican candidates have also felt the need to speak out against the menace of “sharia.”

Former Pennsylvania senator Rick Santorum refers to sharia as “an existential threat” to the United States. Pizza magnate Herman Cain declared in March that he would not appoint a Muslim to a Cabinet position or judgeship because “there is this attempt to gradually ease sharia law and the Muslim faith into our government. It does not belong in our government.”

The generally measured campaign of former Minnesota governor Tim Pawlenty leapt into panic mode over reports that during his governorship, a Minnesota agency had created a sharia-compliant mortgage program to help Muslim homebuyers. “As soon as Gov. Pawlenty became aware of the issue,” spokesman Alex Conant assured reporters, “he personally ordered it shut down.”

Former House speaker Newt Gingrich has been perhaps the most focused on the sharia threat. “We should have a federal law that says under no circumstances in any jurisdiction in the United States will sharia be used,” Gingrich announced at last fall’s Values Voters Summit. He also called for the removal of Supreme Court justices (a lifetime appointment) if they disagreed.

Gingrich’s call for a federal law banning sharia has gone unheeded so far. But at the local level, nearly two dozen states have introduced or passed laws in the past two years to ban the use of sharia in court cases.

Despite all of the activity to monitor and restrict sharia, however, there remains a great deal of confusion about what it actually is. It’s worth taking a look at some facts to understand why an Islamic code has become such a watchword in the 2012 presidential campaign.

What is Sharia?

More than a specific set of laws, sharia is a process through which Muslim scholars and jurists determine God’s will and moral guidance as they apply to every aspect of a Muslim’s life. They study the Quran, as well as the conduct and sayings of the Prophet Mohammed, and sometimes try to arrive at consensus about Islamic law. But different jurists can arrive at very different interpretations of sharia, and it has changed over the centuries.

Importantly, unlike the U.S. Constitution or the Ten Commandments, there is no one document that outlines universally agreed upon sharia.

Then how do Muslim countries use Sharia for their systems of justice?

There are indeed some violent and extreme interpretations of sharia. That is what the Taliban used to rule Afghanistan. In other countries, sharia may be primarily used to govern contracts and other agreements. And in a country like Turkey, which is majority Muslim, the national legal system is secular, although individual Muslims may follow sharia in their personal religious observances such as prayer and fasting. In general, to say that a person follows sharia is to say that she is a practicing Muslim.

How and when is it used in U.S. courts?

Sharia is sometimes consulted in civil cases with Muslim litigants who may request a Muslim arbitrator. These may involve issues of marriage contracts or commercial agreements, or probating an Islamic will. They are no different than the practice of judges allowing orthodox Jews to resolve some matters in Jewish courts, also known as beth din.

U.S. courts also regularly interpret foreign law in commercial disputes between two litigants from different countries, or custody agreements brokered in another country. In those cases, Islamic law is treated like any other foreign law or Catholic canon law.

What about punishments like stoning or beheading?

U.S. judges may decide to consider foreign law or religious codes like sharia, but that doesn’t mean those laws override the Constitution. We have a criminal justice system that no outside law can supersede. Additionally, judges consider foreign laws only if they choose to — they can always refuse to recognize a foreign law.

So if sharia is consulted only in certain cases and only at the discretion of the court, why has it become such a high priority for states and GOP candidates? One answer is that sharia opponents believe they need to act not to prevent the way Islamic law is currently used in the U.S. but to prevent a coming takeover by Muslim extremists. The sponsor of an Oklahoma measure banning sharia approved by voters last fall described it as “a pre-emptive strike.” Others, like the conservative Center for Security Policy, assert that all Muslims are bound to work to establish an Islamic state in the U.S.

But if that was true — and the very allegation labels every Muslim in America a national security threat — the creeping Islamic theocracy movement is creeping very slowly. Muslims first moved to the Detroit suburb of Dearborn, for example, nearly a century ago to work in Henry Ford‘s factories. For most of the past 100 years, Dearborn has been home to the largest community of Arabs in the U.S. And yet after five or six generations, Dearborn’s Muslims have not sought to see the city run in accordance with sharia. Bars and the occasional strip clubs dot the town’s avenues, and a pork sausage factory is located next to the city’s first mosque.

Maybe Dearborn’s Muslims are just running a very drawn-out head fake on the country. It’s hard to avoid the more likely conclusion, however, that politicians who cry “Sharia!” are engaging in one of the oldest and least-proud political traditions — xenophobic demagoguery. One of the easiest ways to spot its use is when politicians carelessly throw around a word simply because it scares some voters.

Take Gerald Allen, the Alabama state senator who was moved by the danger posed by sharia to sponsor a bill banning it — but who, when asked for a definition, could not say what sharia was. “I don’t have my file in front of me,” he told reporters. “I wish I could answer you better.” In Tennessee, lawmakers sought to make following sharia a felony punishable by up to 15 years in prison — until they learned that their effort would essentially make it illegal to be Muslim in their state.

During last year’s Senate race in Nevada, GOP candidate Sharon Angle blithely asserted that Dearborn, as well as a small town in Texas, currently operate under sharia law. And Minnesota congresswoman Michele Bachmann used the occasion of Osama bin Laden’s death to tie the terrorist mastermind to the word: “It is my hope that this is the beginning of the end of Sharia-compliant terrorism.”

The anti-communist Red Scare of the 1950s made broad use of guilt by innuendo and warnings about shadowy conspiracies. If GOP candidates insist they are not doing the same thing to ordinary Muslims, they can prove it by explaining what they believe sharia is and whether they’re prepared to ban the consideration of all religious codes from civil arbitration. Anything less is simply fear mongering.

Amy Sullivan is a contributing writer at Time and author of The Party Faithful: How and Why Democrats Are Closing the God Gap.