My Turn: The misguided push to ban Sharia Law
By RABBI ROBIN NAFSHI
For the Monitor
Saturday, December 6, 2014
(Published in print: Saturday, December 6, 2014)
As the leader of a religious community with a wide range of political views, I am always cautious when speaking out on partisan issues. But sometimes, I must. Now is that time.
On Sept. 20, the delegates of the New Hampshire Republican Party adopted a Platform of Republican Principles. It contains 83 bulleted goals. Number 83 reads as follows:
“Take any and all actions possible to protect against the implementation of any part of Sharia law in New Hampshire, including legislation outlawing Sharia law.”
Sharia means “the way” in Arabic, and Sharia law guides all aspects of Muslim life, including daily routines, familial and religious obligations, and financial dealings. It is derived primarily from the Quran and the Sunna – the sayings, practices and teachings of the Prophet Mohammed.
Sharia law for Muslims is quite similar to Halakhah for Jews. Halakhah means “the way” in Hebrew and it guides all aspect of Jewish life, including daily routines, familial and religious obligations, and financial dealings. It is derived primarily from the Hebrew Bible and the Talmud – the sayings, practices, and teachings of the early Jewish Rabbis.
Why has the Republican Party singled out Sharia law? Why doesn’t it seek to protect against the implementation in New Hampshire of any part of Halakhah, or for that matter, Roman Catholic Canon Law?
Because the New Hampshire Republican Party and other states that have sought similar bans are playing off of what they believe to be a growing fear in this country. We live in a difficult time, historically. Extremist Muslims – a very small percentage of the overall Muslim population – have hijacked a peaceful religion and perverted it into something narrowly construed and intolerant of the West, Jews, Israel, democracy, women’s education and more.
The politicians who endorse anti-Sharia laws are exploiting Americans’ legitimate fears of ISIS, al Qaida, Hamas and other extremist groups in order to ostracize and discriminate against the American Muslim community.
Were the platform’s position to become law in New Hampshire, it would most likely be deemed unconstitutional. In 2010, Oklahoma voters passed a measure banning the use of Sharia law in the state. A federal appeals court declared it an unconstitutional singling out of a particular religion, a violation of both the establishment clause and the free exercise clause of the First Amendment to the U.S. Constitution. Oklahoma introduced a modified version. It passed, and Oklahoma joined Alabama, Arizona, Kansas, Louisiana, South Dakota and Tennessee in enacting laws that prohibit courts to consider foreign law.
Such laws are unnecessary – and sometimes result in unintended consequences.
Our state courts apply foreign law only when two parties have negotiated a contract that calls for the application of foreign law. This is done frequently in business, especially when a foreign-based business has a presence in the state. For example, a Canadian business and a New Hampshire business might agree that in the event of a dispute, the matter would be decided in Canada. They have the right to do that, and a New Hampshire court might then be asked to enforce a Canadian judgment. This kind of thing happens all the time in the U.S. There is absolutely nothing wrong with it. But a ban on foreign law in our courts might no longer permit it.
And sometimes, on personal matters, parties agree to be governed by religious law. Many Jewish couples, for example, draw up a prenuptial agreement governed by Jewish law. In the event the marriage ends, it requires the couple to not only obtain a civil divorce, but also to comply with the requirements of divorce under Jewish law. A New Hampshire court would be asked to enforce that contract clause. But a ban on foreign law in our courts might no longer permit it.
While these two examples apply to a “foreign law” ban, we must remember that the Republican Party Platform position would ban only Sharia law. Two Muslims might use the principles of Sharia law to guide a financial contract just the same way the New Hampshire and Canadian businesses might use Canadian law to guide them. In the event of a dispute, however, a court might refuse to recognize the agreement between the two Muslims if the anti-Sharia provision becomes law, while the agreement between the New Hampshire and the Canadian businesses would remain in tact.
Too many people in our world – including, apparently, members of the New Hampshire Republican Party – believe that Sharia law is violent and contrary to our way of life.
Even if that were true, calling for its ban in our courts isn’t necessary. Our courts cannot enforce contractual provisions that violate public policy. If my congregation and I have an employment contract that requires disputes to be settled by a religious arbitrator who would apply Biblical principles, we can do that. But if the arbitrator rules that the congregation should stone me to death for working on the Sabbath, obviously a New Hampshire court would not enforce that ruling. This is the law in every state, making the adoption of a ban on Sharia law – or any foreign law – unnecessary.
There is only one reason for the inclusion of the anti-Sharia law in the Republican Party platform: hostility to Muslims. Muslims who live in America have a deep commitment to American law and the Constitution’s promise of religious freedom. Anti-Sharia proposals serve only to tell Muslims that they are less a part of the American family and less entitled to the protections of the First Amendment than their non-Muslim counterparts.
As a Jew, I know that my people have been persecuted for thousands of years, and that nations throughout history have passed laws to make it more difficult for Jews to practice our faith. I will not stand by and watch that happen to another minority religion. The New Hampshire Republican Party platform position is nothing more, in the words of Abraham Foxman, the director of the Anti-Defamation League, than “camouflaged bigotry.”