Sep 15, 2010
Remembering 2001: ‘Sharia’ in the United States – Pluralists and Terrorists
If you wanted to write a pamphlet entitled Muslims and the Law in the United States where might you begin? Counter-terrorism law seems an obvious starting point, at least if we look where the most ink has been spilled. We have heard it argued again and again that, relentlessly ‘raced as terrorists‘ (it will take more than one blog post to go through all of the nuances of that process) Muslims – and especially Muslim men- have become the most significant targets of a law-heavy counter-terrorism project begun in the aftermath of 9/11. Muslims are targeted both as a matter of the counter-terrorism project’s design and of its operation. That project encompasses, not only (justly) high-profile matters such as arrest, rendition, indefinite detention, torture and trial but also raids on public and community buildings, such as mosques, ‘preventative’ racialised surveillance of communities and routinized performances such as airport security checks. It extends even into the regulation of charities, and thus to the practice of the religious obligation of zakat.
The representation of Muslims as terrorists has the power to produce individuals not only as criminals but as victims; as evidenced by the spate of anti-Muslim racial violence and hate crimes which peaked in the immediate aftermath of the September 2001 attacks and which, as the ACLU has noted, persist as a problem today albeit in less obviously violent forms. The counter-terrorism agenda is incredibly fluid, spilling out of criminal law right to the border, through asylum, immigration and citizenship law, as securitized entry conditions have become proxies for loyalty to the state, often with devastating consequences for immigrants and their families.
A further set of questions which is to a degree separable from counter-terrorism efforts concerns Muslims’ freedom to practice their religion in the United States. There is plenty of evidence that Muslims face difficulty in securing space for the public practice of their faith. The question of objections to the building of mosques, and to the mosque ‘at Ground Zero’ will have to wait for another time, since it has become so visible and so complex so quickly. The ACLU has assisted Muslim inmates to secure opportunities for prayer in prisons and has represented Muslim women who have been made to remove their niqabs or hijabs in public places. The experiences of women in cases such as Webb v. City of Philadelphia, Medina v. County of San Bernardino and others give the lie to claims of America’s easy lived pluralism made by figures as diverse as Martha Nussbaum and President Obama.
So to ‘sharia’. As outlined in Kathleen Moore’s new book The Unfamiliar Abode, sharia-influenced non-state legal practices, imported to the United States by immigrants have been making inroads into domestic law in the United States for decades. When I talk about ‘sharia’ in the United States, as I sometimes do, I have always started from the latter set of ‘religious practice and pluralism’ questions rather than from the former set of ‘counter-terrorism’ questions. My particular interest is in family law, and especially in the marriage contract and attendant divorce practices. The sorts of civil legal arrangement – religious arbitration of family disputes and legally binding pre-nuptial and other marital agreements based on religious principle- which have been controversial in Ontario and in the United Kingdom are well established in the United States, where couples of all faiths and none in a great majority of states are afforded substantial discretion to resolve family disputes ‘privately’.
The American legal scholarship written about state law’s engagement with Muslim divorce practice runs along four main tracks – hemmed in by one big question: ‘what are the proper limits of pluralism in law’s approach to Muslims’ divorce practice’? So we see articles which are celebrations of the responsiveness of state law to migrant religious traditions, doctrinal pieces examining either the constitutionality or formal soundness of judgments turning on Muslim divorce practice, pieces examining the impact of judgments on women’s rights and pieces critiquing the omission of cultural considerations from judicial reasoning. The encounters between sharia and American state courts have as yet been less overtly political than those which have formed part of recent U.S. foreign policy and so I have found no discussion in the scholarship of the ways in which adherence to sharia is beginning to be constructed as evidence of terrorist sympathies and flawed citizenship.
However, in recent months I have begun to wonder whether that is going to change, as an idea of ‘sharia’ begins to crop up again and again in the increasingly fevered public debate around the role of Islam in American public life. Protestors who rallied to oppose the building of an Islamic Centre at Park51 in NewYork in August carried placards bearing the word ‘sharia’; the word reduced to a catchphrase describing everything that they oppose in their criticisms of the project. Fox News has made repeated efforts to associate the project with an attempt to impose ‘sharia’ on the American people and there are hundreds of blogs where you can read, if you choose, about the supposed threat to the American way of life embodied in ‘sharia’. Similar sentiments were at the heart of Geert Wilders’ speech in New York on Saturday. During Elena Kagan’s Supreme Court confirmation hearing, questions were raised in the conservative press and the right-wing blogosphere about her role in establishing a programme on Islamic finance at Harvard (see web ad here). Senator Jeff Sessions seems to have been persuaded that this was a significant mark on her character. Last year, an equivalent controversy lurked around Harold Koh’s nomination as Legal Advisor of the Department of State. There are also signs that the debate is moving away from condemnation of perceived agents of sharia to rough demands to use civil law to ‘ban’ recourse sharia in certain contexts. Newt Gingrich in a recent speech, insisted that the ‘War on Terror’ was in fact a battle against sharia, and advocated a law which would ensure that no American court could consider sharia a substitute for American law. He is not alone in his perception that this would be a good idea. In November Oklahoma voters – a conservative bunch by any measure - will vote on State Question 755; the ‘Save Our State’ Amendment, which would amend the state constitution to forbid Oklahoma State courts from “look[ing] to the legal precepts of other nations or cultures” or from “consider[ing] international law or Sharia Law”. The Amendment was overwhelmingly approved by both Oklahoma’s House and Senate in May. You can read Julian Ku at Opinio Juris on why such a ban is entirely unnecessary as a matter of law and the Kluwer Arbitration Blog on what the legislation would mean if passed. Some local coverage is here.
I could tentatively suggest that what we are seeing here are attempts to connect apparent adherence to sharia with disloyalty to the state and with terrorist activity. In 2008, Representative Tom Tancredo proposed the Jihad Prevention Act in the Congress which would require those seeking admission to the United States to pledge that they would not seek to install a Sharia law system in the United States. His bill lapsed with the end of the last Congress, but perhaps there is appetite to make a similar effort in the near future. Whether such a law could pass is of course quite a separate issue from the construct of sharia that could be inscribed in the popular consciousness as part of the drive to pass it. Notwithstanding that the ‘American sharia’ debate depends for its traction on substantial popular ignorance (a) of what is meant by sharia and (b) of the circumstances in which an American court may engage with sharia principles in the course of judgment, the persistent attention to the idea gives some cause for concern. It will be interesting to see whether it gains momentum in the coming year. Perhaps when we come to discuss the issue again, the boundaries between the discourses of tolerance/pluralism and threat/terrorism will have blurred once more.
When I said there had been no discussion of sharia as connected to disloyalty etc, I omitted to mention John Finnis’ recent writing http://balkin.blogspot.com/2009/09/john-finnis-on-hart-homosexuality.html