The “supremacy clause” of the U.S. Constitution is one of the first things taught in many first-year law school courses. Article VI, Clause 2 states quite clearly that the “Constitution and the laws of the United States … shall be the supreme law of the land” and that no other law (foreign or domestic) can pre-empt or supersede it.
While that seems pretty clear, some national conservative political figures have convinced more than a dozen American states that “Sharia,” or Islamic law, is somehow on the verge of toppling the American way of law.
While that’s unlikely, some observers believe it will be the wedge issue of 2012. “Will anti-Sharia law initiatives be in future election cycles what anti-gay marriage initiatives were before [in the 2004 presidential elections]?” Marc Ambinder of The Atlanticcogently asked last year. “That is, a cultural wedge issue the GOP uses to ensure that hard-core conservatives enthusiastically flock to the polls?”
American Muslims represent far less than 5 percent of the national population; only two Muslims are currently members of Congress (Democratic congressmen Keith Ellison of Minnesota and Andre Carson of Indiana). Despite those low numbers, reading sites like shariafreeuse.com, creepingsharia, and antisharia.com or even the more mainstream JihadWatch one might think that America is on the verge of being overrun by falafel carts and hookah bars. Even Republican presidential candidates like Herman Cain or Newt Gingrich make public statements such as, “Some people would infuse Sharia Law in our courts system if we allow it. I honestly believe that,” (Cain) or “Sharia is a mortal threat to the survival of freedom in the United States and in the world as we know it.” (Gingrich)
The concept of Sharia is generally defined as “the ideal [practical] law of God according to Islam,” explains professor Intisar Rabb of Boston College Law School, with the traditional sources the Quran and the collected reports of actions taken by the prophet Muhammad. “Muslims believe that the Islamic legal system is one that aims toward ideals of justice, fairness, and the good life,” and some Islamic majority countries do use Sharia as an integral part of the legal code.
“Sharia has tremendous diversity, as jurists and learned scholars figure out and articulate what that law is. Historically, Sharia served as a means for political dissent against arbitrary rule. It is not a monolithic doctrine of violence, as has been characterized in the recently introduced bills that would criminalize practices of Sharia.”
Rabb also noted that Sharia “historically was a broad system that encompassed ritual laws, so in some ways it recalls Jewish law that has rules for how to pray, how to make ablution before prayers” or dietary laws involving kosher (or halal) foods.
To that point, in a recent opinion piece in The New York Times, Yale University professor Eliyahu Stern highlighted that some of these current anti-Sharia efforts would “curtail Muslims from settling disputes over dietary laws and marriage through religious arbitration, while others would go even further in stigmatizing Islamic life.” (Whether that in turn could violate the Constitution’s First Amendment might be a good follow-up question.)
Stern pointed to legislation introduced in the Tennessee General Assembly that would equate Shariawith a set of rules that promote “the destruction of the national existence of the United States.
These unsubstantiated political fears about Sharia law are now taking hold and seem to be growing. In addition to Tennessee, nearly a dozen states including South Carolina, Wyoming, Texas and Georgia have introduced anti-Sharia legislation this year alone.
A March 2011 report, “Understanding Sharia Law,” by the progressive-oriented Center for American Progress in Washington sought to demonstrate how a misunderstanding and ultimately disingenuous misinterpretation of Sharia would “both harm America’s national security interests and threaten our constitutionally guaranteed freedoms” if allowed to continue unchallenged.
The point lost in the debate is that the concept of “Sharia” would apply only to observant Muslims in the same way that the halacha (Jewish law) only applies to observant Jewish people. Thus, in addition to the Supremacy Clause of the Constitution blocking any pre-emption of American law, and keeping in mind that the nation’s highest court rejects even allowing the 10 Commandments to decorate a courtroom, remember that Sharia should never apply to any non-Muslim.
“Anybody who argues that America is in any danger of coming under Sharia law should retroactively fail ninth-grade civics class,” said Matthew Duss, national security editor at the Center for American Progress and one of the primary authors for the report. “In times of economic distress, people tend to be more susceptible to charlatans and demagogues telling them who to blame and who to fear. America has been through this sort of thing before with various minority groups, but we've always come through it stronger in the end.
“It's seen as a way to create a more favorable political environment for hawkish conservatives.”
Duss likened the current anti-Sharia national movement to the “Team B” phenomenon in the 1970s where prominent neoconservative political figures sought to “issue a set of claims about Soviet capabilities and [nefarious] intentions that — as we now know — were just wildly overstated, to a hysterical degree.”
The center’s report argued that adopting such a flawed analysis on Sharia would direct limited resources away from actual threats to the United States and bolster an anti-Muslim narrative that Islamist extremist groups find useful in recruiting sympathizers.
Even as the specific laws often fail legal litmus tests, parallels between the current anti-Sharia and the anti-gay marriage political movements in 2004 are on the lips of many.
“I think there's a clear similarity,” Duss said, “in the way that anti-gay marriage [referendums during the 2004 presidential campaigns] and current anti-Sharia efforts are being used to stir up the conservative base” for the 2012 presidential elections.
There is some Republican pushback against making Sharia a wedge issue. In August, New Jersey’s Governor Chris Christie appointed Muslim-American lawyer Sohail Mohammed to a state judicial bench, which ruffled some feathers among some who fear the threat of Sharia law. Asked about those concerns, Christie – whose straight talk was made him a shadow contender for his party’s presidential nomination — made it quite clear that he had no patience for such “ignorance” and did not mince his words.
“Ignorance is behind the criticism of Sohail Mohammed,” Christie told a reporter, adding he was “disgusted — candidly — by some of the questions” he was asked at Mohammed’s confirmation hearings.
“Sharia law business is just crap … and I’m tired of dealing with the crazies,” the governor concluded, adding, “it’s just unnecessary to be accusing this guy of things just because of his religious background.”
Experts and analysts are currently debating whether the national anti-Sharia movement is on the upswing or not. “I see it gaining momentum in the short term,” said Duss. “There is a significant amount of money being pumped into the issue.
“Hopefully within a few years, the idea that all American Muslims want to turn America into an Islamic state will seem as stupid as the idea that a Catholic president would take orders from the Vatican.”