In August, Representative Joe Walsh spoke to constituents at a town hall meeting in Elk Grove, Illinois, about radical Islam, noting, “It’s in Addison. It’s in Elgin. It’s here.” Walsh, a Republican congressman whose district includes many of Chicago’s northern suburbs, called for “godly men and women in the Senate, in the Congress … [to] stand in the face of the danger of Islam in America without political correctness.” The next Muslim attack against America, he warned, “will make 9/11 look like child’s play.”
Walsh’s depiction of radical Islam fits into the popular narrative that Islam is “creeping” into the political and social cultures of the United States, biding its time before Islamists take over America by force. This creeping takes many forms. If you ask Michele Bachmann, the Muslim Brotherhood might be infiltrating the U.S. government through the most unlikely of Manchurian candidates, Secretary of State Hillary Clinton’s chief deputy, Huma Abedin. If you ask Peter King, shari’a creep is a “stealth jihad” to institute hardline Islamic law in the American judicial system itself.
It’s a powerful narrative, one that is popular among politicians and American pundits who, intentionally or not, stoke anti-shari’a flames and conflate Islam with radicalism. But anti-shari’a talk is not just about political bluster or website hits. The talk is actually becoming law. Since 2011, according to the Council on American Islamic Relations (CAIR), 73 bills have been introduced in 31 states, seeking to limit or bar the use of “foreign law” in American courts. Most often, the phrase “foreign law” is a thinly veiled euphemism for shari’a. In May, Kansas Governor Sam Brownback signed a so-called “shari’a bill,” making his state the most recent* to ban courts from using Islamic law when considering legal decisions. In August, Kentucky Representative Kim King pre-filed a similar bill for the 2013 congressional session.
Often the American politicians who propose anti-shari’a legislation, and the many journalists who report on it, reduce Islamic law to a set of anti-modern, anti-women dictates formulated in seventh-century Arabia—dictates that only survive in the twenty-first century through the autocratic rule of some Muslim clerics. But for almost all American Muslims, and much of the Islamic world, shari’a is not this. And shari’a is so much more.
IN ARABIC SHARI’ALITERALLY MEANS “street” or “way.” Asifa Quraishi, an assistant professor of law at the University of Wisconsin, explains that, in a legal context, the word “shari’a” refers to “the way or the path a Muslim would want to follow what God wants us to do.” Muslim scholars take primary source material—the Qur’an as well as accounts from the life of the Prophet Muhammad, referred to as “hadith”—and derive laws based on their interpretations of these texts. These laws pertain to two different areas of life, either religious observance (prayer, fasting, and almsgiving) or civil and criminal issues (marriage, family law, business transactions, taxation, and warfare). It is the second of these categories that gets outsized media attention. In some Muslim countries, Islamists and clerics use a particular application of Islamic criminal law to justify harsh punishments: amputating the hands of accused thieves or stoning alleged adulterers to death. This interpretation of shari’a is rare. Even in Islamic countries, like Pakistan, Saudi Arabia, and Iran, where death by stoning is legal—and often has the popular support of the countries’ populations—in the last decade probably only a handful of executions by stoning have occurred. And when such punishments are applied, they are often carried out by rogue Islamists in states without strong central governments.
It is also critical to point out that translating the word “shari’a” simply as “Islamic law” is not entirely sufficient. According to University of Southern California law professor Sherman Jackson, shari’a “includes scores of moral and ethical principles, from honoring one’s parents to helping the poor to being good to one’s neighbor.” It is incorrect to equate shari’a with criminal punishments, as many American politicians have done, when punishment constitutes “a tiny sliver” of shari’a, according to Jackson. If we understand shari’a as the idealized “path to God,” then what constitutes a moral and legal course to the divine is a subjective, and ever changing, interpretation of Islam’s sacred texts. As Quraishi puts it, shari’a is “tangible enough for everyday use, but still flexible enough to accommodate evolution and personal choice.” Muslims, like people of all religious traditions, do not always follow the dictates of clerics. They create for themselves their own shari’a—their own path to God—even when they’re not conscious of doing so.
Anti-shari’a activists worry that Muslims in America will establish Islamic courts outside of the American judicial system to handle cases involving marriage, divorce, or Islamic banking requirements. (Because interpretations of shari’a restrict the use of standard banking loans and interest, some Muslims make use of specialty banks and bank programs that comply with their beliefs.) Yet a recent study conducted by University of Windsor law professor Julie MacFarlane found that most American Muslims are not interested in establishing separate Islamic courts. Instead, MacFarlane writes, “like other Americans, they will access the courts for adjudication according to American family law if they cannot make a private agreement (relating to divorce) that meets their needs and values.”
Anti-shari’a legislation fails to account for the comprehensive role shari’a plays in the lives of American Muslims, and thus can threaten the right to free exercise of religion. Courts are beginning to agree: last January, a federal appeals court ruled that Oklahoma’s newly passed anti-shari’a law amounted to religious discrimination and was unconstitutional. But other anti-shari’a statutes that go into effect can still have real consequences on civil marriage, divorce, immigration status, employment discrimination, and international business transactions among Muslims. For example, a Muslim couple might sign a religious marriage contract that stipulates that in the case of divorce, the husband would give his wife a sum of money (mahr). If, after the divorce, the husband refuses to give the mahr, the wife could sue, asking the court to recognize the validity of their marriage contract. In 2002, a New Jersey judge did just that in the case of Odatalla v. Odatalla, and enforced the pre-nuptial agreement. Numerous cases have been adjudicated in courts across the country where Muslim inmates have sued prisons over what they consider to be the inadequate accommodation of halal meals.
Proponents of the “shari’a creep” myth point to such cases to support the claim that shari’a is infiltrating American courts. In fact, as the judge in the Odatalla v. Odatalla wrote in his decision, courts are applying “neutral principles of law” to adjudicate disputes where contracts are shaped by the religious views of those involved, as American courts have long done in cases involving questions of religion. And Muslims aren’t the only people of faith troubled by the implications of such laws. Native Americans, Jews, and Catholics have also expressed concern that anti-shari’a legislation could prevent state courts from looking to Native American sovereign tribal laws when adjudicating disputes in civil courts, that Jews could lose access to Beit Din courts where decisions are made according to Jewish law, or that Catholic canon law could be designated as a “foreign law.”
Now more than ever, it is critical to get shari’a right. Only hours after Illinois Representative Walsh spoke at the town hall, saying Muslims are trying to kill Americans “every week,” a local man used an air rifle to shoot at a Chicago suburban mosque while Muslims were at prayer inside. This was just one of eight incidents in a span of eleven days in August during which Muslims were the targets of religiously motivated violence. And this tally does not count the horrific shooting at a Wisconsin Sikh house of worship, which many considered a case of Muslim “mistaken identity.” We open the door to future hate crimes if we allow politicians and pundits to insist that radical Muslims are trying to take over America, and that shari’a threatens to creep into the American legal system. For the sake of American Muslims, and all Americans, we must find a new path to better understand shari’a—including what it really means.
Krystina Friedlander is senior editor at islawmix, a project of the Berkman Center for Internet and Society at Harvard Law School.
*Correction: The article originally misstated that Kansas was the first to pass an anti-shari’a bill. The sentence has been changed to reflect that Kansas is the most recent state to pass such legislation, but not the first.