From Zombie at PJM:
I shouldn’t have to write this essay. But a judge in Oklahoma forced me into it.
Last month, 70% of the voters in Oklahoma approved State Question 755, which bans Sharia law (and international law) from being used in the state’s legal system. Almost immediately afterward, CAIR (the Council on American-Islamic Relations) sued to have the vote overturned, based on the bizarre claim that the measure is “unconstitutional.” U.S. District Judge Vicki Miles-LaGrange then sided with CAIR and issued an injunction preventing the measure from taking effect until all lawsuits against it are resolved. Since the suits will likely take years to play out, the new measure (and the will of the voters) will be stymied for the foreseeable future.
Those who oppose Sharia in the United States often argue their point by highlighting how misogynistic, backward, cruel and discriminatory Islamic law can be under most interpretations. And while all that may be true, it is the wrong argument to make. I get so frustrated watching pundits, politicians and bloggers making the weakest argument in what should be a slam-dunk debate that I’ve decided to write this brief outline of what I think should be the prioritized hierarchy of arguments against the use of Sharia in the United States.
In order, these are the arguments that Sharia’s opponents should be using, not just in Oklahoma but anywhere else in the country where the same issue crops up:
1. U.S. law is the “supreme law of the land,” no exceptions.
The specifics of what’s in Sharia law are irrelevant. It doesn’t matter whether Sharia is the most wonderful, mild and reasonable set of humanitarian recommendations ever devised, or if it’s an oppressive medieval framework for a nightmarish theocracy — or something in between. All of that is off-topic. Why? Because in the United States of America, only U.S. law governs. Period. You can’t violate a U.S. law and then offer up as a legal excuse, “Well, in Mongolia what I did is perfectly legal!” You’d be convicted, while the jury laughed.
To get specific, Article VI of the Constitution, better known as the Supremacy Clause, states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
“Supreme law of the land” nails it down pretty well. I don’t see anything in there about exceptions made for religious law — do you?
Even the lead plaintiff in the case concedes this point; quoted in the top link above, Muneer Awad, executive director of the Oklahoma chapter of CAIR, said “the measure is unnecessary ‘because even first-year law students know’ that another type of law cannot supersede the U.S. Constitution.”
And…? What’s his point here? It may be true that State Question 755 merely reaffirms already-established legal principles, but just because a measure is “unnecessary” doesn’t mean that it’s unconstitutional. In fact, as many legal experts know, there is plenty of duplication and overlap in the Constitution itself, and much more in state law. Hate-crime laws are a clear recent example of “unnecessary” duplicative legislation: It’s already illegal to assault someone, but the courts have allowed additional laws against assault motivated by malice, even though they’re theoretically “unnecessary.” The same allowance for “unnecessary” reaffirmation of Constitutional ideals applies to the new Oklahoma law as well.
2. Sharia, as “divine revelation,” is inherently undemocratic.
One of the fundamental principles of United States law is that it is subject to the will of the governed, and can be updated and revised over time. This can be done at the federal level by Constitutional amendments in which the people of each state (through their elected representatives) vote on whether or not to alter the nationwide legal framework; or by electing (or booting out) representatives who enact laws according to the will of the voters; or by electing presidents and governors who appoint judges of this or that political slant; or by similar mechanisms at state or local levels. This process is so self-evident that it hardly needs to be described.
But Sharia operates in a completely different way. The Qur’an (from which Sharia is ultimately derived) is deemed by Islam to be “revealed,” in that it was supposedly handed down from on high by Allah himself, and as such is perfect, unchangeable, uninterpretable, and thus beyond the reach of man’s attempt to alter it. In other words, Sharia is undemocratic. In practice, various Islamic experts and jurists — imams, ayatollahs, mullahs, and so forth — do indeed “interpret” the medieval Arabic of the Qur’an and apply it to modern settings, since only scholars can even read the Qur’an in the original. (Even direct translations of the Qur’an are regarded by true believers as corruptions; only the original is the true “word of God.”) But these jurists themselves are not elected. So neither the text nor the implementation of the text are subject to the will of the populace.
Needless to say, any such legal system fundamentally contradicts the basis of the American legal system. You can’t have an immutable, eternal set of fixed religious laws (i.e. Sharia) incorporated as a subset of a malleable legal system (such as U.S. law).
(Now, if three-fourths of U.S. states voted to amend the federal Constitution to jettison all existing law and replace it with Sharia, then yes, we could have Sharia in America. But that doesn’t seem likely. And until such an amendment is passed, then Sharia is in fundamental disagreement with the existing Constitution.)
Sharia’s advocates think that by citing Sharia’s “perfection,” divinity and immutability, they are making a good argument for why it should be adopted; but it is for that very reason that it is completely unacceptable in the United States, a land whose government is “of the people, by the people, for the people.” Note that last word: people. Not God, not Allah. Us.
3. Many aspects of Sharia are flagrantly unconstitutional.
Any number of specific Sharia laws directly contradict or violate basic principles of the U.S. Constitution:
– Under Sharia’s rules of evidence, “Testimony from women is given only half the weight of men.” This violates the Fourteenth Amendment’s Equal Protection Clause, guaranteeing for all persons complete equality under the law.
– The punishment for theft under Sharia is “amputation of hands or feet, depending on the number of times it is committed.” This is a gross violation of the Eighth Amendment, which bans “cruel and unusual punishments” under U.S. law.
– In Sharia courts, “testimony from non-Muslims may be excluded altogether (if against a Muslim).”
Furthermore, “Muslim women may only enter into marriage with Muslim men.” Such Sharia laws, as well as many others which elevate Muslims over non-Muslims, are in direct violation of the First Amendment, the Fourteenth Amendment, and possibly Article VI of the Constitution.
– Sharia’s penalty for apostasy (rejecting Islam) is death, according to the vast majority of Islamic scholars and judges. Since apostasy could not, under the First Amendment, even be considered a crime under U.S. law, much less a capital crime, enforcing the death penalty for a “crime of conscience” violates the very spirit of the Constitution, not to mention the First, Fifth, Sixth, Eighth, Ninth, and Fourteenth amendments.