In a recent article in NRO, Matthew Schmitz, the deputy editor of First Things, argues that the anti-sharia laws recently adopted or under review in many state legislatures are not only unnecessary, but harmful. Mr. Schmitz argues that there is no need for states to adopt laws stating that in court cases, U.S. law trumps foreign law, even if appeal to foreign laws occurs during a court case. Mr. Schmitz's position has come under scathing review as being naïve about Islam and the role of sharia in Islamic supremacism. But it is also in itself a strange argument.
In his opening paragraph, Schmitz points out that no contract is enforceable in U.S. courts unless it complies with U.S. (and state) laws.
This bill is only the latest manifestation of the growing anti-sharia movement in this country, which endangers our national security by alienating loyal Muslim citizens and assaults religious liberty by putting contracts with a religious motivation on an unequal footing with contracts that have no religious motivation.
Fully half the article goes on about contract law, which has specific performance, consent, and compensation elements. Schmitz points out that there is no such fuss about contracts drawn up between two parties agreeing to conform to Christian canon law or Jewish Halakhik law. That being the case, such a phobic reaction can be attributed only to "anti-Muslim bigotry." The latter, of course, as the second half of the article goes on to argue, not only needlessly antagonizes Muslims, but is a threat to our national security.
Perhaps the most acute irony of the anti-sharia movement is that it undermines our national security, in particular our ability to constructively engage peaceful Muslims and to take action against terrorists. In ways various and immeasurable, the anti-sharia movement's implication that all Muslims are radicals amplifies resentments and fuels hate by encouraging Americans to view their neighbors with suspicion and distrust. Even worse, it threatens to turn our Muslim fellow citizens, and our Muslim allies abroad, against America.
So, suggests Schmitz, what is the fuss? A contract between two entities based on sharia law is not enforceable if it violates the tenets and procedures of contract law, much less the laws of the Constitution. States which adopt versions of American Laws for American Courts (ALAC) are overreacting. ALAC type laws are superfluous and smack of Islamophobia and are a threat to our national security.
Nice try. But it is not just about contract law; it is also about criminal and civil cases. Defending the latter in terms of the former is a bit of a red herring, no?
The Zombie Muhammad case is an example of a jaw-dropping sharia-style ruling in a criminal case. A Pennsylvania judge dismissed charges against a Muslim man who physically attacked an atheist dressed as "Zombie Muhammad" during the Mechanicsburg, Pa. Halloween parade. Judge Martin further dressed down Perce (the plaintiff) for his insensitive behavior, going so far as to call him a doofus and telling him that in Muslim societies he could have been put to death for mocking Muhammad.
Another jaw-dropper, a civil case, came in the form of an appellate court decision from Maryland, also cited in the Center for Security Policy Study, where the court enforced a Pakistani sharia court's judgment of custody in favor of the father, even though the mother had argued that she was not provided due process because had she gone to Pakistan to contest the case, she could have been subject to capital punishment for having a new relationship with a man not sanctioned by sharia.
From wife-beating to female circumcision to punishment for apostasy to fatwas involving death threats -- all sanctioned by sharia law -- one notes that these are hardly matters of contract disputes.
A study by the Center for Security Policy cites 50 appellate court cases from 23 states that involved decisions of lower courts found to have made judgments in which appeal to sharia law was introduced. Many of these resulted in judgments found to be in conflict with American law (U.S./state law). The study further points out that for every published appellate case, there are many more cases where the judge bent U.S. law to accommodate sharia law, and which resulted in prima facie violations of plaintiffs' rights to due process that were never appealed because the losing party simply didn't have the wherewithal to fight the court's ruling.
States need to adopt ALAC-type laws to stop the drift by local courts and even appellate courts to use sharia, or any other foreign law, to render decisions in criminal and civil cases. As evidenced by the study of the Center for National Security Policy, judges need to be reminded that sensitivity to religious beliefs and political correctness does not overrule the laws and processes mandated by U.S. criminal and civil law.
Versions of ALAC have already been passed into law in five states: Tennessee, Louisiana, Oklahoma, Texas, and Arizona. Pennsylvania is poised to pass its own ALAC bill -- House Bill 2029, currently pending before the state House Judiciary Committee.
Naturally, CAIR is using all its political clout to brand ALAC laws unconstitutional via targeting and marginalizing Islam. As a matter of fact, CAIR's very opposition to ALAC laws makes for a strong indication that rather than being redundant and unnecessary, as Schmitz claims, such laws do indeed tend to neuter appeals to sharia law in US courts. That said, we need our legislators to stand strong and ensure that American justice runs on American laws.