On Saturday, in St. Paul and cities across the country, protesters gathered to “march against sharia.” Brigitte Gabriel, founder of the sponsoring organization, ACT for America, explained that sharia is “already here in America” and that we are “seeing girls being killed simply for wanting to wear makeup.” Against allegations of Islamophobia, the organization claims on its website that the aim is simply to “ensure that every woman and child enjoy the protection afforded by the U.S. Constitution.” Scott Presler, an activist working with ACT for America, added: “We are here to protect our communities and educate them on the issues and get them to call their legislators and pass legislation that protects women and other victims of sharia.”
The anti-Muslim nature of these events is made clear by the nonsensical legal premise of the organizers’ claims. If our laws permitted Muslim girls to be “killed simply for wanting to wear makeup,” I’d grab a bullhorn and organize a protest myself. That’s obviously not the case. So what’s behind the anti-sharia movement?
“Sharia” literally means the way to the watering place. It has come to refer to the correct way of practicing religion, in particular the rules that govern the lives of Muslims. Sharia is an ancient system that governs everything from praying five times a day to meal preparation to how to contract a marriage. Islamic legal scholars offer varied interpretations of sharia’s dictates, and some of those interpretations conflict with rights that we affirm today in the U.S., including the rights of women, gays and lesbians, religious minorities, and religious converts.
When those conflicts happen, our nation’s laws can — and do — prohibit Muslims from acting on their particular interpretations of sharia. But fears about the most extreme applications of sharia need not prompt a categorical ban on sharia. For example, we do not respond to an (incredibly rare) instance of an honor killing in America by categorically prohibiting Muslims from ordering their lives according to the dictates of their faith tradition; we respond by enforcing the prohibition against murder. Suggesting otherwise is a dangerous path for a nation that is committed to religious tolerance.
To the extent that anti-sharia measures preclude courts from enforcing private agreements based on sharia or any other “foreign” law, proponents should consider how such measures threaten their own religious liberty and marginalize the faith of Muslim Americans. Muslims who invoke sharia in court are not asking the American legal system to adopt Islamic rules of conduct, as if sharia could or should establish an independent and binding source of law. Rather, they are asking courts to recognize the norms to which they have already agreed to be bound. Our courts do this routinely — it’s called contract law.
In our judicial system, sharia tends to arise through requests for judicial interpretation of the litigants’ marriage contract in disputes over property distribution in the event of divorce or death of a spouse. Courts do not approve all marital contracts, but the approval turns on considerations applicable to any marital contract, not on whether the contract is based, in whole or in part, on sharia. The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.
The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)
These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering. The “anti-sharia” cry serves only to legitimize religious intolerance. If a person’s religious beliefs motivate actions that violate our laws, our legal system is strong enough to respond. We must respond by targeting the action in question, not by vilifying an entire belief system that brings meaning and purpose to millions of our fellow Americans.
Robert K. Vischer is the dean of the University of St. Thomas School of Law.