Posted by on July 27, 2011 in Blog
Yesterday, the Center for American Progress hosted a discussion panel on Sharia. The event, formally labeled “What Sharia Is – and Isn’t: Examining the Anti-Sharia Movement in America” was moderated by Matthew Duss, policy analyst at the Center for American Progress. Featured panelists included Professor Asifa Quraishi, a fellow at the Institute for Social Policy and Understanding and an Assistant Professor of Law at University of Wisconsin Law School; Rev. Dr. C. Welton Gaddy, President of the Interfaith Alliance; and Faiz Shakir, editor of Think Progress and Vice President of the Center for American Progress Action Fund.
In a 90-minute taped discussion in front of a full conference room lined with community activists, the three panelists sought to educate the public on what Sharia is, and perhaps more importantly, what it is not. Much of the discussion was dominated by the well-spoken Professor Quaraishi – whose insight into both Islamic and Constitutional Law was quickly self-evident.
Quaraishi took great pains to explain the difference between “Sharia”, which in Arabic means “the way” or the “the path”, and “Fiqh” which is probably the more proper name for what people think of when they describe “Islamic law”. Though Quraishi limited her legalese opining on the issue for fear of boring to death all those in attendance, I will not be so restrained.
[I should point out that the following legal analysis is my own, not that of Professor Quaraishi. However, I believe firmly that it is important not to play to our lowest common denominator but instead to rise above and educate. Ultimately, the debate around Sharia is as much a legal question as it is a political one, and it is important to get our facts correct as we discuss and debate this issue.]
So at the risk of boring you to death with legalese, I ask you to bear with me…
Let’s start with the basic proposition that in this country we are born free. That freedom is protected in the legal sense in many ways, among the most important (though admittedly not the flashiest) involves a concept known as “Freedom of Contract.” Essentially, two people are free to form whatever agreement best suits their needs. They are free to make these decisions on their own, and then codify them in such as a way as to guarantee that their agreement will be protected by the courts. Freedom of Contract is essential to our economy as well as to our sense of individual liberty, and is a concept steeped so richly in judicial precedent that it dates all the way back to British law that informed our current legal system.
Still with me? Good.
Freedom of contract includes, among many other things, the right to look to religious texts as a guiding principle in the interpretation of a contract. For instance, if a man and woman seek to marry they might seek to structure their marriage contract in such a manner that is consistent with their religious beliefs. Should those two individuals decide on divorce, the court would properly look to the religious texts (read Fiqh or Sharia) to interpret the parties’ true intent. Thus, in a sense, it is arguably proper to say that judges are interpreting and implementing “Islamic law”, but, and this is a big caveat, only as a means of determining the precise agreement two individuals have willfully elected to be governed by truly are.
So if judges can rely on basic elements of religious texts to figure out a party’s will, what is to stop the slow and eventual takeover by Islam (or any other religion for that matter) into the U.S. legal system? Well, quite a lot actually…
First, it is essential to mention that there are limitations placed on the “Freedom of Contract.” Contracts are already limited as a matter of law by two concerns. The first is what is known as “unconscionability.” Put simply, you cannot agree to do that which the court would reasonably find to be unconscionable. For example, you cannot enter into a contract to sell your kids into slavery. It is unconscionable, and a court will never allow you to do so.
Why bring up this seemingly archaic legal doctrine? In a political sense, the debate around “Sharia” often reflects a fear that a particular interpretation of “Sharia”, (perhaps even similar to what currently takes place in Afghanistan where individuals are denied what we consider to be basic rights) would somehow occur. However, and this is a big however, a court is bound by the United States Constitution and cannot allow two parties to agree to anything that violates the Constitution! Phew…
The second is a stopgap measure courts often rely upon when nothing else fits. A court is allowed to declare a contract void if, in the court’s opinion, it constitutes bad public policy, an overwhelmingly broad exception that can be used to provide near blanket protection.
Still not feeling safe?
Well, if you are still not persuaded that our current legal and cultural system are well protected by preexisting checks and balances within the Constitutional system, as well as ingrained in our legal doctrine, (read inherent limitations on freedom of contract) now is probably a good time to remind readers of the 1st Amendment of the United States Constitution! The 1st amendment holds in relevant part that Congress shall make no law “respecting an establishment of religion”, nor impeding the free exercise of it.
So, could the U.S. ever become an Islamic State? No! Congress shall make no law respecting an establishment of religion, and as Quaraishi points outs, Christians in this country have been trying to get Christianity accepted as the official U.S. religion for years, and while 75 percent of the populace identifies as Christian it has still proved to be impossible. Now try to do the same thing with a populace that makes up a mere 2-3% of the total population.
Still not convinced?
Finally, it is important to point out that the nature of the U.S. Constitution is such that it is the supreme law of the land. It is the final word on what is an is not permissible by law in this great nation of ours, subject only to the interpretation of the Supreme Court or by a constitutional amendment requiring a super majority vote in both houses of Congress, as well as by 75% of the states. It seems that despite whatever political leaders and the far right would have you believe, there is no reason to fear! The America you know and love is safe!! Now can we please move on to issues of real concern?