by Michael Isenberg.
In 2009, a New Jersey woman went to family court to seek a restraining order against her husband. Both were Muslims, originally from Morocco. It had been an arranged marriage; the woman was still in her teens.
The details of the case are spelled out in court documents (Superior Court of New Jersey,Appellate Division. S.D., Plaintiff-Appellant, v. M.J.R., Defendant-Respondent. Decided: July 23, 2010) and they’re horrific. The woman accused her husband of assaulting and raping her on numerous occasions. Photographs were introduced in evidence. “They depict bruising to both of plaintiff's breasts and to both of her thighs, as well as her swollen, bruised and abraded lips. Testimony of Detective Johanna Rak, the person who took the photographs, established that the remaining photographs disclosed injuries to plaintiff's left eye and right cheek. She testified that bruising appeared on plaintiff's breasts, thighs, and forearm. Additional police testimony established that there were stains on the pillow and sheets of plaintiff's and defendant's bed that appeared to be blood.” The wife “testified that defendant always told her ‘this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.’”
The judge, Joseph Charles, found that the woman “had proven by a preponderance of the evidence that defendant had engaged in harassment…and assault.” Nevertheless, the judge refused to issue the restraining order. The ruling was overturned on appeal about a year later, but not before igniting a firestorm of public opinion because of the reason he gave for his decision: “The court believes that [defendant] 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.”
In other words—as many outraged people interpreted it—the court gave the husband a pass for raping his wife, because doing so was permitted under Muslim law, known as shari’a. [For the record, Islam prohibits rape, but frowns on a woman refusing sex to her husband. “The angels send their curses on her till she comes back.” (Bukhari Vol 7, Book 62, No. 122)]
website in 2007. The New Jersey episode brought things to a boil. Further fuel was added to the fire by a Breitbart article about an Islamic Tribunal established in Texas in 2013 or 14.
In addition, statements had surfaced from various Muslim figures advocating replacing the laws of the United States with shari’a, including a 1998 quote from Omar Ahmad, founding chairman of the Council for American Islamic Relations: “Islam isn't in America to be equal to any other faith, but to become dominant. The Koran, the Muslim book of scripture, should be the highest authority in America, and Islam the only accepted religion on earth.” Although the statement was reported in the San Ramon Valley Herald at the time, Mr. Ahmad denies saying it.
The anti-shari’a movement had an effect. According to Wikipedia, thirty-four states have considered shari’a bans, some based on the SANE draft; nine states had gone so far as to pass one.
So are the proponents of these bans right? Should shari’a be banned in the United States?
Well, it’s complicated.
What complicates it is that shari’a--like the Jewish halakha--is a vast body of law covering every aspect of life, developed over hundreds of years by some of the greatest minds in the faith. Muslims often disagree among themselves as to what its provisions are. As Will Coley, former imam and director of the MALIC Center in Keene, NH, explained on one of my recent Facebook threads, “The differences of opinion within shari’a cover everything from what animals are allowed to eat, to when and how you should pray and how to hold your hands and how many times you should bow and all these things are shari’a.”
Some provisions of shari’a are innocuous, such as the directives about praying that Mr. Coley mentioned. Others are arguably beneficial. For example, in his book, Skin in the Game, Nassim Nicholas Taleb praised the restrictions in shari’a against undertaking excessively risky contracts, which he contrasted with the dangerous financial instruments that starred in the 2008 financial crisis. And some provisions of shari'a are just plain evil—like the so-called “Ordinance of Omar” which lay down the restrictions that make Jews and Christians living in the Muslim world second class citizens, or the laws concerning the treatment of enemies in wartime, which are literally medieval.
To complicate things further, what does “Ban shari’a” even mean? A wide range of measures have been proposed. Some may have some merit to them. Others are frankly un-American prohibitions on the free exercise of religion. A 2010 constitutional amendment in Oklahoma focused mainly on use of shari’a by the courts: the relevant section read, “The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.” The amendment passed, but was subsequently overturned by a federal court.
A Tennessee law was more wide-ranging. Quoting Mr. Coley again, “I actually testified before the Senate Judiciary Committee during Tennessee's first go-around attempting to pass one of these bills. I also read the original bills that were floated around to different state legislators and the original bills that were accepted offered everything from banning the sale, purchase, and ownership of Qurans in the United States. Banning of the practice of shari’a means no prayer, no fasting, no marriage, no divorce. All of these things are covered by shari’a…the tea parties in East Tennessee actually opposed the anti-sharia bill in Tennessee because they read the bill.”
In its final form, the Tennessee law asserts “Jihad and sharia are inextricably linked, with sharia formulating and commanding jihad, and jihad being waged for the purpose of imposing and instituting sharia…Any person who knowingly provides material support or resources to a designated sharia organization, or attempts or conspires to do so, shall commit an offense.” In response to the public outcry against the bill, language was added to clarify that it “neither targets, nor incidentally prohibits or inhibits, the peaceful practice of any religion, and in particular, the practice of Islam by its adherents. Rather, this part criminalizes only the knowing provision of material support or resources…to designated sharia organizations…or to known sharia-jihad organizations with the intent of furthering their criminal behavior.”
IMHO, our guide for approaching questions of Muslim Law vs. US law should be the same guide we should use for every other question of whether to ban something: the Non-aggression Principle (NAP). The NAP is the notion that in a free society, everything is permissible so long as it doesn’t aggress against the rights of other people. It’s closely related to voluntarism, the idea any voluntary relationships among consenting adults should alway be permitted.
Some examples illustrate how this works in practice.
In Islam, an enormous amount of jurisprudence has gone into the subject of inheritance. Indeed, there are even examples in the literature of people posing inheritance puzzles to each other for fun. Among these laws is that “the male is the equal of the portion of two females (Quran 4:11).” So a son inherits twice what is sister gets.
In America, our law gives wide latitude to the deceased to spell out their bequests in a will. If a Muslim man, living in the US, writes a will, and he says in the will that his son gets twice what his daughter gets, then, we might not like the sexism of that (although bear in mind that the son is required to maintain his unmarried sisters financially), but the will should still be upheld by the court. Not because it’s shari’a, but because our own law respects wills—and it’s consistent with the NAP.
Other examples may be found in contract law. I actually had a dispute about this with Aynaz Anni Cyrus of the American Truth Project. She proposed banning shari’a in a speech to the Worcester Tea Party, and during the question period I asked, “I just want to understand what you have in mind when you say, ‘ban shari’a.’ For example, if two Muslims voluntarily make a contract with each other, and they write in the contract that, in the event of a dispute, it would be adjudicated according to shari’a, is that something you would ban?”
Again, the NAP would say that it’s a voluntary contract, of course it should be upheld. Indeed, that’s exactly the sort of thing that shari’a “courts” like Islamic Tribunal do—arbitration.
But Ms. Cyrus had a different point of view. “Yes, that needs to be banned,” she replied.
When pressed she changed the subject to child marriage.
You can see the exchange near the end of the video, at 45:45, but I recommend you watch the entire thing. Despite my disagreement with Ms. Cyrus on this point, I have a great deal of respect for her and she had a fascinating story to tell. She suffered tragically growing up in the Islamic Republic of Iran, a place where the worst provisions of shari’a are strictly enforced. Her suffering was in many ways similar to that of the New Jersey woman I mentioned earlier. Ms. Cyrus eventually escaped and obtained American citizenship, which she appreciates in a way that only someone who lived under tyranny elsewhere can.
Which brings me back to the case of the New Jersey woman. Again, the course of action comes into sharp focus when viewed through the lens of the NAP. Clearly the scumbag who was her husband had violated her rights, in a most despicable way. She was entitled to the protection of the State of New Jersey, regardless of anything that may or may not be in the shari’a. The judge clearly erred in not issuing the restraining order.
Still, the case does not establish a need for a ban on the courts substituting shari’a for duly passed legislation—because it is already banned--which is why the appeals court overturned the decision. This has been the case since 1878, when SCOTUS upheld the conviction of a Mormon man for polygamy (Reynolds vs. United States). In the New Jersey case, the appeals court stated this in no uncertain terms: the trial judge’s “perception that, although defendant's sexual acts violated applicable criminal statutes, they were culturally acceptable and thus not actionable” was “a view that we have soundly rejected.”
If you’ve followed my writing for a while, you know that I have no illusions about the dangers of jihadism and political Islam, and I speak out against them frequently. But I do not support a shari’a ban. At best it’s a solution to a problem whose solution is already in place. At worst, it’s a violation of the freedom of religion of the millions of Muslims who merely want to practice their faith peacefully. If we did that, we’d be guilty of the very attacks on our freedom that we accuse the jihadists of. Let’s not destroy the village in order to save it.
Michael Isenberg drinks bourbon and writes novels. His latest book, The Thread of Reason, is a murder mystery that takes place in Baghdad in the year 1092, and tells the story of the conflict between science and shari’ah in medieval Islam. It is available on Amazon.com
Photo credit(s): Reuters