A First Amendment Analysis of Anti-Shari’ah Initiatives

Ten years after September 11, 2001, the American Muslim community continues to be surrounded by a fear created and promoted mostly by a small group of anti-Muslim organizations and individuals. Collectively, these groups have spread their message in twenty-three states through books, reports, websites, and blogs. Other anti-Islam grassroots organizations have utilized this propaganda to “educate” their constituency.

The Center for American Progress defines Islamophobia as an “exaggerated fear, hatred, and hostility toward Islam and Muslims that is perpetuated by negative stereotypes resulting in bias, discrimination, and the marginalization and exclusion of Muslims from America’s social, political, and civic life.” This Islamophobia movement’s ability to influence politicians’ talking has made mainstream that which was once considered marginal, extremist rhetoric.

The impact of the Islamophobia campaign upon the American public’s perception of Islam and Muslims has been very negative. Approximately half of all Americans hold an unfavorable view of Islam.

To date, dozens of bills have been introduced in more than half of the states to ban Shari’ah and/or international law.

Some of these bills are overly broad, and some in essence would outlaw any organization that adhered to any Islamic jurisprudential school.

The Muslim community pushed back, specifically because the regulations on common activities such as how to wash before prayer or how much money to give to the poor emanate from these same schools of thought and would cause great restrictions on their ability to practice their faith.

This report describes the broader climate of anti-Muslim sentiment, as promoted by anti-Islam grassroots organizations, and examines the various manifestations of this hate in light of the First Amendment.

More specifically, this report analyzes the anti-Shari’ah bills and ballot measures proposed by numerous states and determines the extent to which they comply with free exercise and establishment principles and jurisprudence.

Key Findings

The American legal system has built-in safeguards The crucial feature of any kind of arbitration is that an arbitrator, whether religious or not, has no ability to enforce the arbitral decision; only state or federal courts have that power. Moreover, there is an array of carefully crafted safeguards in place to protect individuals. 

For example, arbitral decisions are annulled when there is evidence that the arbitrator completely disregarded the law or when the arbitrator refused to consider material evidence.

Courts also review the arbitral decision to ensure that arbitrators are neutral, that the resulting arbitral decisions are neither grossly unfair nor undermine public policy, and that the parties agreed to take part in the arbitration of their own free will.

The anti-Shari’ah laws violate constitutional principles

The First Amendment to the American Constitution includes two Religion Clauses, the Establishment Clause and the Free Exercise Clause.

Together, these Clauses provide guidelines for the relationship between the government and religion.

For one, the government may not officially choose among religions, or between religion and non-religion, in creating law.

A significant purpose of the Religion Clauses is to protect religious groups from the overreaching of the state.

They protect minority religions from state interference, which could arise where a religious (or secular) majority uses the democratic process to punish a minority, and they protect all religions, popular or unpopular, from state encroachment into purely religious matters. 

Moreover, the government may not generally prevent a person from believing and advocating a religious message; nor may the government prevent behavior simply because it is religious in nature.

Oklahoma’s “Save Our State Amendment,” the only anti-Shari’ah initiative to be challenged in court thus far, is a good example of how these laws violate the above-mentioned constitutional principles. 

The legislative history and the actual text of the Amendment make clear that its purpose is to treat Muslims differently than members of other faiths—it seeks to outlaw use of Shari’ah principles but does not mention principles of any other faith.

It also places numerous burdens on Muslims’ religious exercise.  For example, if the Amendment were to become law, it would be impossible to enforce a will that is based on Shari’ah principles or to engage in Shari’ah-based arbitration.  This unequal treatment of Muslims and burdens on their free exercise contradict core Religion Clause principles.

Broader Implications

When religious freedom is limited for one group, it necessarily affects religious freedom for all groups. Although anti-Shari’ah measures name Shari’ah specifically, if allowed to stand, they can limit the freedoms of Christians, Jews, and other faith groups in the United States who turn to religious arbitration as the preferred method of dispute resolution.

Recommendations

1. Clarify the meaning of Shari’ah: The American Muslim community should engage the broader public on Shari’ah’s meaning and role. It should articulate what this word means generally and what it means to them specifically—that is, the articulation of the concept should not be merely theoretical but explained in concrete terms.

2. Differentiate Shari’ah from laws in Muslim-majority countries: Even more to the point, the American Muslim community should differentiate the ways Shari’ah is applied in differing cultural contexts. It is important to emphasize that the way it is applied in some Muslim-majority countries is very different than what is possible, or even preferable, in the American context. How does the American legal and social framework shape the application of Shari’ah law?

3. Disseminate information on religious arbitration and the First Amendment: Legal think tanks should organize lay-accessible information sessions on the First Amendment and religious arbitration. Many Americans are unaware that religious law is incorporated into the American legal system. How does this work in the case of Shari’ah? In the case of other religious laws? Americans need answers to these questions.