American courts are being told that certain outrageous activities are actually normal, constitutionally protected, Islamic religious behavior.
- In a Michigan court doctors are accused of mutilating young girls, some as young as seven years old, through cutting off parts of their genitals. A defense lawyer claims that this Islamic practice must be allowed, stating “I believe that they are being persecuted because of their religious beliefs and I do not make that allegation lightly.”
- A lawyer for the state of Hawaii claims that President Trump’s attempted travel ban is unconstitutional. Executive Order 13780 includes a request to collect
“…information regarding the number and types of gender-based violence against women, including so-called “honor killings”, in the United States by foreign nationals…”
The lawyer argues that gathering this data discriminates unconstitutionally against Muslims.
Are these lawyers correct? In the name of religious freedom must America accommodate Islamic behavior? Should people here be allowed to govern themselves by Islamic law? In considering these questions we will examine:
- What it would mean to have active sharia courts.
- What virtues God requires of government.
- How American courts handle a collision between religion and civil law.
- How to prevent or neutralize Islamic courts.
Islamic law is always biased towards Muslims
A Muslim society wants to be governed by Islamic sensibilities, which are manifested in sharia law. The result is a religious government, favoring Islamic believers and discriminating against non-Muslims. According to Wikipedia, sharia law is
“…derived from the religious precepts of Islam, particularly the Quran and the collection of books known as the Hadith.”
In sharia law plaintiffs come to a religious elder, called an imam. After hearing their testimony the imam uses the Quran, with other holy books, to craft decisions to be enforced by officials.
Some elders, called mufti, are allowed to declare a fatwa. This is a pronouncement about how Muslims should handle a particular circumstance. A Muslim anywhere, not just in the jurisdiction of that mufti, can decide to obey the fatwa or ignore it. Fatwa examples include:
- Condemn the author Salmon Rushdie to death. Rushdie wrote a book that enraged Muslim sensibilities. The Iranian leader Ayatollah Khomeini declared a fatwa that Rushdie must die. In response to the book and the fatwa, rioters burned bookstores, Rushdie’s associates were attacked, and he himself went into hiding.
- Ban the use of polio vaccines. No, polio vaccines are OK. Both fatwas were issued.
- Forbid viewing movies about Islam.
- Wives must not leave the house except in emergencies.
Sharia law is biased towards Muslim concepts of justice, rights, and equality. Americans hear these words but don’t realize how Muslims interpret the concepts. Here are some examples of sharia justice.
- A Muslim man’s testimony in court is always believed more than that of a woman (Quran 2:282, Sahih Bukhari (a Hadith book) 6:301).
- A man can be convicted of rape only if there are multiple male witnesses against him (Quran 24:4). But if a female accuses a man of rape then the female gets punished. Her testimony isn’t valid against the man, but is a confession of her having sex outside of marriage.
- Non-Muslims are barely tolerated in society. They can live only by continual payment of ransom (jizya, Quran 9:29). They must also watch what they say: witness an Indonesian governor, a Christian, convicted of blasphemy for suggesting that Muslims could vote for him.
- A Muslim can’t leave the faith without incurring a death sentence.
- If a man kills a Muslim it isn’t a criminal matter. Rather, the offender must work out a deal with the deceased’s family, perhaps buying them off with blood money (qisas, Quran 2:178). If that doesn’t work the deceased’s family may personally kill that offender.
- If a man kills a non-Muslim deceased’s family has fewer paths to justice than do Muslims (Sahih Bukhari 9:83:50).
According to American courts, sharia law is not actually a legal system. In successful arguments before the United States Tenth Circuit court the plaintiff argued:
Furthermore, plaintiff has presented testimony that “Sharia Law” is not actually “law”, but is religious traditions that provide guidance to plaintiff and other Muslims regarding the exercise of their faith. Plaintiff has presented testimony that the obligations that “Sharia Law” imposes are not legal obligations but are obligations of a personal and private nature dictated by faith. Plaintiff also testified that “Sharia Law” differs depending on the country in which the individual Muslim resides… Based upon this testimony, the Court finds that plaintiff has shown “Sharia Law” lacks a legal character, and, thus, plaintiff’s religious traditions and faith are the only non-legal content subject to the judicial exclusion set forth in the amendment.
Because sharia law isn’t based on legal precedent, you might present a sharia court the same argument multiple times and get a different decision each time. The court relies on the judgment of its imam, who isn’t required to be consistent.
Because of its pro-Muslim bias, an unprepared American plaintiff coming before a sharia court ought to be in for quite a shock. But even if the plaintiff appeals the verdict to regular civil courts, a Muslim tendency to “take the law into their own hands” might make any appeal moot.
Freelancing Islamic justice
Regarding justice, existing Muslim societies have a dual personality. On one hand is the usual deference to rulers and established government. On the other hand is an acceptance, even encouragement, of vigilantism. It is fairly easy to find instances of mob action, where people are attacked, and even killed, for defaming Islam. No trial, just the lynch mob.
Encouragement to autonomous action is built into Islam. Here the Quran says:
“And when the sacred months have passed, then kill the polytheists wherever you find them and capture them and besiege them and sit in wait for them at every place of ambush. But if they should repent, establish prayer, and give zakah, let them [go] on their way. Indeed, Allah is Forgiving and Merciful.” (Quran 9:5)
This verse spurs continuing attacks on non-Muslims, including Christians. It is just one verse among a multitude that encourage action independent of judges and courts.
A recent European development is the appearance of sharia patrols. These gangs roam through neighborhoods, intimidating and assaulting residents into sharia-compliant behavior. There were even attempts to start these in Minneapolis and Dearborn.
Once you recognize this tendency towards independent, often violent, action you’ll better understand why there are so many “lone wolf” attacks, and “you offended Islam” riots, by Muslims around the world.
Honor killing is another aspect of this vigilantism. Somehow, Islamic or family honor is restored if you kill a rebellious child, the daughter who is seeing a non-Muslim, or somebody who insults Islam. Some scholars think that Islamic support for honor killing arises from an Islamic parable about Moses (Quran 18:65-81). Through its lawyer, the state of Hawaii claims that honor killing is part of Islamic religious expression.
Whether or not honor killing is explicitly supported in Islam, it is accepted in Islamic societies. This is evidenced by the lack of Muslim mass outrage, and the absence of condemnation from imams, when such killings occur. Because of sharia law’s concept of qisas (killing is a civil, not government, problem) there isn’t anything there that discourages taking revenge through independent action.
This tendency towards freelancing the verdicts of Islamic justice suggests why authorizing sharia courts could be dangerous to American communities.
- In a Philadelphia mosque its leaders detained a man accused of theft. They tried to chop off his hand, a sharia penalty for theft. They were unsuccessful, the man was hospitalized with severe cuts, and one of the mosque leaders was arrested.
Had the mosque leaders succeeded in their punishment the man would certainly have recourse in state courts. He’d also be permanently without his hand, something no legal appeal can fix.
Godly government and American law
God told us what He requires of a righteous society and its government. I touched upon this topic in a previous article. In summary, the rulers must:
- Provide even-handed and truthful justice (Amos 5:12).
- Give judgments that don’t favor either the rich or the poor (Leviticus 19:5).
- Be even-handed in our treatment of the aliens in our midst (Deuteronomy 10:17-19).
This is God’s standard for Christian society, Islamic society, and indeed any society.
American law is deeply rooted in English common law, which grew from the Christianized English society. Judges still look to common law when making decisions. Why, then, worry about Islamic courts if America has a Christian foundation? Because American Christians have, by and large, abandoned the public square. We tell ourselves, and are told by others, to leave our religion in the church building. Without the continual guidance of God’s church, which is a preserving salt to society, its guiding light (Matthew 5: 13-16), we’ve accepted all sorts of nonsense and called it justice.
Rulers are to be a terror to wrongdoers, and God’s servants in avenging wrongdoing (Romans 13:3-4). How will our rulers and judges know what must be avenged unless they understand God’s mind on the matter? And who will tell them if the Christians don’t (Romans 10: 14)? It’s high time we again do our duty to preserve and guide American society.
When religion and civil law collide
Soon a judge must decide if an Islamic practice, or a sharia court, should be allowed in America. The framework used to make this decision will be the Lemon test. From Wikipedia:
- The statute must have a secular legislative purpose. (Also known as the Purpose Prong)
- The principal or primary effect of the statute must not advance nor inhibit religion. (Also known as the Effect Prong)
- The statute must not result in an “excessive government entanglement” with religion. (Also known as the Entanglement Prong)
The government’s claim of compelling interest in its law is measured by these three tests. The law is upheld if it passes all three tests; otherwise, the law’s restrictions are deemed unconstitutional.
The claim of government compelling interest has been tested many times. Here are a few important decisions.
- The Mormons are persistently banned from practicing polygamy in the United States. Utah couldn’t become a state until polygamy was officially banned there. Among the many points of the points that were decided is (from Wikipedia):
“The Court recognized that under the First Amendment, the Congress cannot pass a law that prohibits the free exercise of religion. However it held that the law prohibiting bigamy did not meet that standard. The principle that a person could only be married singly, not plurally, existed since the times of King James I of England in English law, upon which United States law was based.”
- The state of Oregon passed a law insisting that all children must attend public schools. Leaders of Catholic church schools objected and the Supreme Court overturned the law. From Wikipedia:
“He stated that children were not “the mere creature[s] of the state” (268 U.S. 510, 535), and that, by its very nature, the traditional American understanding of the term liberty prevented the state from forcing students to accept instruction only from public schools. He stated that this responsibility belonged to the child’s parents or guardians, and that the ability to make such a choice was a “liberty” protected by the Fourteenth Amendment.”
- When instituting Obamacare the government insisted that all health plans must include contraceptive coverage. The Little Sisters of the Poor objected to this requirement, citing long-standing Catholic opposition to these products. After many court fights the Supreme Court ruled in their favor, remanding the case back to a lower court where the Little Sisters could negotiate a plan not having the objectionable requirement.
- A non-Christian religious group sued for the right to use a certain tea, deemed to be a prohibited Schedule 1 drug, in their worship services. The Supreme Court ruled in their favor.
“The Court found that the government was unable to detail the government’s compelling interest in barring religious usage of Hoasca when applying strict scrutiny as the RFRA demands of such regulations.”
The lawyers opposing Islamic practices, such as sharia courts, will need to prove that the government has a compelling interest in banning them.
Preventing or neutralizing Islamic courts
Muslims coming to America bring with them their possessions and their cultures. Those that successfully assimilate learn what part of their cultures must change in their new home. The others try to recreate their cultural practices here. One of those practices might be a sharia court.
The successful establishment of sharia courts, rendering enforceable judgments, amounts to colonization, replacing the existing civil authority with their own. Of all of a government’s compelling interests, keeping its own sovereignty is utmost. What approaches can we take to prevent or neuter sharia courts?
No sponsored, or parallel, sharia courts
Sometimes a sharia court is called an arbitration council, which provides advice voluntarily followed by its participants. However, changing its name doesn’t change its character. A sharia court is an Islamic religious proceeding, and government must have nothing to do with it.
- A government body that works with a sharia court, refers clients to it, or accepts results of its judgments, breaches the Constitution’s Establishment Clause. It favors one religion over another.
- The sharia court renders its judgments by Islamic standards. A plaintiff acting on the court’s advice will inevitably hurt someone else who expected an action compliant with civil law.
- The sharia court is abetting breaking the law if its “voluntary counseling” causes people, knowingly or not, to use it to evade the civil courts. This “parallel law” court challenges the sovereignty of the existing government. If a sharia court is a conduit for law evasion then its use must be somehow blocked.
If you can’t ban the sharia court, ban its results
Many states have tried banning sharia law. However, such bans might not stand up to legal scrutiny. The state of Oklahoma forbade its courts from considering or using sharia law. Its ban was overturned by the Tenth Circuit court, largely because it violated the Establishment Clause. That ban mentioned sharia law by name, targeting one religion while not affecting any other.
The plaintiffs in the Oklahoma case successfully argued that the ban didn’t define sharia law well enough to target it. With that guidance in mind, we should ensure that harm can’t arise from sharia court judgments. If all a sharia court did was provide a chance for Muslims to get together and argue then it would be harmless. Only when its decisions spur criminal action does it become dangerous. If a fear of prosecution deters such actions then the sharia court is neutralized.
Here are approaches that are religion neutral and serve compelling government interest:
Honor killing: Stripped of its emotional content, this is cold-blooded murder. It’s also premeditated, thanks to the imam’s decision, and the court’s participants can be prosecuted for being co-conspirators.
There is no “religious practice” exemption for murder. Aggressive investigation and prosecution can deter honor killings. However, plea deals would merely tell these Muslims that the government is willing to accept a form of blood money (qisas).
Acid attacks: This is an ambush attack, dousing someone’s face with a caustic substance. This disfigures the victim and demoralizes the community. Europe is subject to a plague of them.
These attacks aren’t a religious practice, but grow in number where vigilantism goes unpunished. Because the resulting disfiguring severely alters the victim’s life there must be strong laws that cover these attacks. I pray that smart police street work can detect perpetrators before they can ambush their victims.
Female genital mutilation (FGM): This act is done on very young girls with the complicity of her parents. Doing this procedure is already a federal crime, but that shouldn’t prevent states or localities from passing their own laws proscribing it.
The government has a compelling interest in preventing child abuse. Detecting that the crime has occurred involves cooperation between doctors, hospitals, school officials, and perhaps others in the child’s life. They can look for behaviors and signs that a girl might be suffering from this deed.
Sharia patrols: These patrols are just a street gang. Time for the police anti-gang squad.
No blasphemy laws
Muslims worldwide have called for a ban on speech critical to Islam. To the Muslim world criticizing Islam is blasphemy (Quran 33:57-61). Some people hope to ban criticism in the United States by framing it as a ban on “hate speech.” Such a ban would restrict religious freedom and free speech, and a law banning Islamic criticism runs afoul of the Establishment Clause.
The best defense against sharia law in America might be aggressive enforcement against evils done in the name of sharia law. Do we have the fortitude and persistence to prevail?
Article previously published in 2017 at Illinois Family Institute