Sept. 10 (Bloomberg) -- With people like Newt Gingrich whipping the waters, a wave of American Islamophobia is raising the frightening prospect of Shariah law being imposed here.
Will it become legal in the U.S. for Muslim men to beat their wives? Will chopping off hands become the penalty for burglary?
Or, in a less violent mode, should we worry because U.S. financial institutions are structuring loans to get around the Islamic bar on interest? Gingrich says we should, as that’s a first step.
“What you have is a steady infiltration of truly destructive ideas,” he said in July, specifically referring to such loans. “A very serious threat,” Gingrich called them when speaking to the American Enterprise Institute.
And fear of Shariah has picked up since then as part of a generalized and growing anti-Muslim sentiment.
That the devout want laws that reflect their passionately held views is nothing new. The American system has already allowed local ordinances and state laws to enforce religious doctrine.
Statutes that forbid gambling or allow discrimination against gays reflect biblical beliefs. And just try to buy a bottle of Scotch on a Sunday in any one of 14 states.
I don’t mean to trivialize the harm radical Islamic law can inflict. It’s one thing to wait until half past noon to order a Bloody Mary with Sunday brunch, as we must in Georgia. It’s quite another to let a man get away with raping and brutalizing his wife, as a Moroccan in New Jersey thought he could. An appeals court didn’t let him.
And that’s precisely the point. American law already accommodates religion-driven policies, including those based in Shariah law. But there is a line that the Constitution won’t allow to be crossed.
“U.S. courts are not going to apply Shariah law unless it’s permitted by U.S. law,” says Clark Lombardi, who teaches constitutional and Islamic law at the University of Washington.
That may sound circular, but this is the way it works. Any contract written according to religious law, whether based on Shariah or Talmudic or any other principles, is enforceable in American courts up to a point. Judges won’t enforce it if one party was coerced into it, or if it violates public policy or basic notions of fairness, Lombardi says.
Hence, an agreement in an Islamic divorce that left nothing to the wife was tossed out of court.
But there is nothing wrong with loans being structured to meet a customer’s needs. Banks don’t charge less for loans structured under Shariah. Generally, they charge more.
Likewise, courts are quite in the habit of handling disputes between parties who live in different countries, say the U.S. and Saudi Arabia, which follows a version of Shariah. Standard rules decide which nation’s law governs the contract, and American law prevails if there is a serious conflict.
The greater fear comes with the thought that fundamentalist Muslims would rewrite criminal codes and family law or win exemptions from existing law. But to alter the law on rape or divorce, to allow “honor killings” to go unpunished, would require a sufficient majority of voters to elect lawmakers who would do that, plus stacking the courts with like-minded judges willing to ignore constitutional constraints and substantial court precedent.
Either that, or they would have to take over the country militarily. How likely is either of those scenarios?
Yes, some radical Muslims wish to supplant Western culture. These are a minority of the Muslims in America, most of whom are moderate and peaceful and cherish freedom of religion, Lombardi says.
To group them with the radicals would be like saying American Christendom supports the burning of the Koran because a fringe preacher with a tiny congregation in Florida liked the idea.
Gingrich wants a federal law “that says no court anywhere in the United States, under any circumstance, is allowed to consider Shariah as a replacement for American law.”
If he means that literally, he would be risking big chunks of international trade, which depend on contracts that are sometimes governed by Shariah. And forget about financial institutions seeking Muslim customers.
Besides, as it is, no religion can trump American law in U.S. courts when the two fundamentally conflict. The Supreme Court said so when it ruled that Mormons couldn’t violate a federal ban on polygamy.
“To permit this would be to make the professed doctrines of religious belief superior to the law of the land,” the court said, which was something it wasn’t willing to do.
A New Jersey appeals court repeated this principle in July when it ruled that a Moroccan man couldn’t get away with raping his wife by asserting his religious right to do it.
It’s not the law I worry about. What scares me is the irresponsible fear-mongering that can only prompt moderate Muslims to wonder whether the radicals aren’t right, after all.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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