My FTB colleague Maryam Namazie, who I respect greatly for her tireless work on behalf of equal rights around the world, republishes a letter from the British group One Law for All to the ACLU, criticizing them for opposing the anti-sharia law in Oklahoma. That letter is sadly misguided and misunderstands the American legal system. Let me explain why once again, as I have done many times before.
Let me first say that I think Maryam and One Law for All have positive motivations here. They are genuinely opposed to laws that truly do destroy equal rights for women, and for everyone for that matter. If sharia law were to be implemented, the results would indeed be very bad. People like me would be the first ones with our heads on the chopping block. There is nothing I would oppose more than the implementation of sharia law in the United States.
But I think they are being entirely unfair to the ACLU here when they ask how they can “simultaneously support the application of sharia law in US Courts while claiming to stand up for the rights of women and fight against gender-based violence and discrimination.” This is a false dichotomy, a classic fallacy of the excluded middle based on the assumption that opposing the Oklahoma bill means supporting sharia law. It excludes the perfectly rational position that the ACLU has actually taken here.
The letter to the ACLU cites lots of specifics, all of them accurate, about how sharia law destroys equality. But every single case is from the UK, not from the United States. There is a reason for this. The U.S. does not have “sharia courts” as they have in the UK, nor do we have any problem at all handling such situations. The far right in America likes to pretend otherwise, but every single case they have used to try to support their position actually supports the opposite conclusion. I explained this in a thorough review of one outrageously fake “study” put out by Frank Gaffney’s Center for Security Policy.
Sharia law is a very broad thing. It governs all kinds of situations, not just the really bad ones like only allowing men to have control over divorce. For a Muslim, it also governs things like requiring them to give to charities, how to decide who should lead a mosque, and how to handle inheritance. And there are situations where it is perfectly legitimate for a court to enforce such laws. For example, if a Muslim’s will says that their inheritance must be divided up according to Islamic principles and the trustee of the estate does not do so, it is entirely reasonable for someone to bring a lawsuit and for the courts to enforce those provisions of the will. This is basic contract law and it happens every day in the courts; the fact that it might be done in a situation involving Muslims does not mean that we are one step closer to beheading infidels.
Much is made in the letter to the subject of divorce, and it is certainly true that practices like the triple talaq divorce in Islam are unequal and discriminatory. But they are also unenforceable in the United States. As I note in the link above, in every single case where one party wanted to impose sharia law in a way that would violate the equal rights of the other party, the courts in this country have ruled against it, including in divorces. One example, from a Michigan case where the wife filed for divorce and the husband claimed that they were already divorced because he had pronounced the triple talaq while in India:
Plaintiff did not enjoy the basic rudiments of due process in the instant Indian divorce. Further, she was not represented by an attorney and had no right to be present at the pronouncement. The divorce provided no opportunity for a hearing on the merits and it was not overseen by a court of law…The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. If the state distinguishes between persons, the distinctions must not be “`arbitrary or invidious.’” Wives have no right to pronounce the talaq. This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws.
In the comments on the post, the author of the letter brings up a case in New Jersey:
In a matter of domestic violence then, a man could claim the ‘right’ to be judged by sharia rather than domestic law, and therefore claim his right to beat his wife. What about her rights in this instance? And if you’re thinking ‘rubbish’… let me enlighten you: in a New Jersey courtroom in 2010, a judge dismissed a woman’s charge of sexual assault and domestic violence using the following words: “This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.”
But the ACLU strongly opposed this ruling as well, which was made by a low-level elected state judge and immediately overturned by the appeals court. The original judge was wrong, flagrantly wrong, and he was rightly smacked down for it. The right principle won out and it won out immediately. Bear in mind that even if New Jersey had such a law, it would not prevent this kind of judge from making the wrong decision; the outcome of such a case would be exactly the same as it was here, a bad decision would be overturned immediately.
A couple more things. The Oklahoma law didn’t just ban the use of sharia law, it also banned the use of international law by any judge in the state for any reason. And here again, there are cases where the courts not only should apply international law, but where they have to. And again, it usually happens in regard to contract law. Some contracts, especially those involving companies from different countries, require the application of international law to govern all sorts of things — currency transactions, international labor standards, even international human rights law.
We all should, and are, opposed to the application of Islamic law in any situation where it denies equal rights to anyone. But that doesn’t mean we should jump on every anti-sharia bandwagon that comes rumbling down the street. In the United States, at least, those bandwagons are usually driven by the far right and they are nothing more than an attempt to deny equal rights to Muslims, as the Park 51 controversy shows beyond all doubt.
And let’s also note that the population of American Muslims is quite different from the population of Muslims in many countries of Europe, including the UK. Surveys show that the American Muslim community is predominately modernist in its outlook, pro-American and pro-equality. London has seen demonstrations with reactionary Muslims demanding the most draconian actions against those who engage in blasphemy, for example, but that is almost inconceivable in the United States. It’s never happened here.
The point of all of this is that the ACLU was correct to oppose this law, and it isn’t because they think sharia law is a good thing or because they don’t support equal rights for women. I doubt you could find any organization in the United States that has more consistently supported the kind of equality that One Law for All correctly advocates for. But this Oklahoma bill is not what they think it is, nor is the situation in the United States remotely like the situation in the UK.