Grassroots Commentary

Sharia Law in the U.S.

By D.M. · Nov. 11, 2010

There has been much heated debate about whether to allow Sharia law in the United States, particularly in matters relating to marriage and the family. Both sides point to the fact that Islamic law – for better or for worse – is already operating in several other countries, but unfortunately, the arguments of both sides are so often reduced to simplistic sound bites. Those against Sharia law usually point to its harsh criminal penalties; those in favor of it argue that the United States – a country that prides itself on religious tolerance – is discriminating against Muslims by not recognizing Islamic law. But it is not as simple as either side makes it sound. There are several complex matters at issue here – most notably balancing the interests of American society with the right to religious expression. Politics aside, could Sharia law work, legally and logistically, in America?

There are several basic premises upon which the United States was founded in order to promote a free society. One of the most important of these is religious freedom; first, that the laws of the nation would be secular and that the government would not “establish” a religion (separation of church and state), and second, that people living here would be free to worship as they see fit, or not at all. These concepts are embodied in the Establishment and Free Exercise Clauses of the First Amendment. But as the Founders declared in their writings – and as U.S. courts have upheld ever since – rights are not absolute and must be limited in order to preserve the society as a whole. The most well-known example is the exception to Free Speech: one cannot call “fire!” in a crowded theater, because of the inevitable panic that would ensue, endangering the lives of others.

The same is true of religion. The Founders were quite clear on the point that while there could be no abridgment of thought or belief in one’s religious faith, there can and will be limitations placed on one’s actions. Actions in the name of religious worship, when they conflict with the laws of the United States, are not protected. There are several aspects of Sharia law that would prove problematic in this country.

One example is Sharia’s acceptance of polygamy. A recent Der Speigel article regarding Germany’s application of Sharia law illustrates this issue. Under Sharia law, a man is allowed several wives. German courts will adjudicate such a case, determining whether the wives are entitled to support, a portion of the husband’s pension or estate in the event of his death. In the U.S., however, this would create enormous conflict, given the fact that polygamy has been illegal since the 19th century. In fact, in recent years several polygamist Mormon communities have been raided and disbanded by the government. If American courts were to recognize and afford protection to polygamist relationships created under Sharia law, this would no doubt give rise to numerous equal protection lawsuits by Mormons who believe in polygamy as part of a faith-based lifestyle.

Another central concern regarding Sharia law is its treatment of women. There have already been several cases in which U.S. courts have refused to enforce Sharia in family matters on the grounds that it violates public policy. Most recently, Judge Joseph Charles of New Jersey refused to grant a Muslim woman a restraining order against her husband, who she claimed had sexually abused her. The basis for the judge’s ruling was that the husband had no “intent” to rape her, but was simply following what he believed to be his right under Sharia law. Indeed, under Sharia law it is considered a wife’s duty to make herself available to her husband at all times, as he is not allowed to seek sexual gratification outside the marriage. Not allowing him such access is considered a threat to the core of the marital relationship and a basis for a husband’s denial of financial support. However, under the laws of the state of New Jersey, when a man forces himself on any woman – even his wife – it is rape. Therefore, the Appellate Court overturned Charles' ruling and the husband was arrested for his crime. In fact, in the past several years more states have moved toward applying the same penalty for spousal rape as when the rapist is a stranger. To allow a separate justice for husbands – or less protection for wives – under Islamic law is in contravention of every notion of equality on which the U.S. legal system is based.

Another example is In the Matter of Ramadan, the 2006 New Hampshire case in which a Muslim husband sought to enforce in that state an Islamic divorce decree. The couple married in Lebanon, but had since lived in several places, including New Hampshire. Under Sharia law, a husband may divorce his wife by telling her three times that he wishes to dissolve the marriage. In this case, the husband, after telling his wife he wished to divorce her, traveled to Lebanon to obtain the decree. While he was gone his wife filed for divorce and financial support in New Hampshire family court. When the husband ignored the action, the court awarded the wife everything she had petitioned for. The New Hampshire court would not recognize divorces obtained in other jurisdictions because the couple had been domiciled in New Hampshire when the divorce was initiated. A state is not going to afford recognition to Sharia law when it does not even afford that recognition to another state.

Alimony is another aspect of family law which is treated completely differently under Sharia than in American courts. Under Sharia law, marriage begins with the creation of a contract. Under this contract, a woman is entitled to maintenance by her husband, meaning that during the marriage he has to support her according to his financial means. If divorce is commenced, the man is required to support his wife during the iddat, or waiting period. Once the divorce is final, however, a man is not required to provide any financial support to his ex-wife, regardless of her circumstances. Only if it has been included in the original marriage contract is a woman entitled to support after the dissolution of the marital relationship.

Alimony in the United States, on the other hand, varies from state to state; for example, some states base alimony on the length of the marriage, including common law unions. In some states fault is a factor; in others, alimony is based solely on financial need. Support is usually terminated when the party receiving support remarries. But the fact remains, alimony is a matter to be determined either by the court or through mediation on a case by case basis.

There is also a discrepancy in the laws concerning child custody. Under Sharia law, the mother retains physical custody of the children during the “years of dependence.” When they reach a certain age, usually 7-9 years for boys and 9-11 years for girls (although this varies among different schools of Sharia), the father takes physical custody. A woman can also lose custody of her children if she remarries or converts to another religion. In the U.S., the standard in all matters relating to children is “the best interests of the child.” Would Muslim women in this country, if deprived of their children once they have reached a certain age, have recourse in American courts? If not, this would no doubt be a concern of American jurists, particularly in cases of alleged abuse.

Several other countries were faced with similar dilemmas, and they have allowed Sharia courts to operate alongside their own judicial systems, in the form of arbitration. Israel and India, for example, recognize Sharia courts, despite the religious disputes that exist in their countries between Muslims and non-Muslims. However, their decisions can be appealed to the high courts, and may be overturned if they violate basic rights or the laws of the land. But in England, where Sharia courts adjudicate civil matters under the Arbitration Act of 1966, their existence is being hotly contested. Human Rights groups, such as One Law for All and Iranian Solidarity, argue that these courts and tribunals have created parallel legal systems in which Muslims are deprived of the rights enjoyed by others living in England. These tribunals operate by consent of the parties, mediating cases involving family issues such as divorce, alimony and child custody. But Iranian Solidarity and other groups point out that Muslim women – who are often at a grave disadvantage under Sharia law – are under immense religious and social pressure to “consent.” In addition, these decisions are as binding as any in a secular court, so there is no hope of appeal if the decision is unfair.

There is little reason to assume that in the United States, whose legal system is so similar to England, the application of Sharia law would be any different. Another critical factor is the very different natures of religious versus secular law. Whereas religious laws – such as Sharia – remain unchanging, the laws, mores, and what is considered “just” in America is constantly in flux. No one would dispute that the U.S. has often fallen short of the ideals contained in its Constitution, but most would agree that jurists and legislators alike continue to strive to reach those ideals. One area in which we have made great strides as a nation is the equality of women. To allow a particular group of women – be they Muslim or otherwise – to be governed under a separate law that could be construed as inequitable, would no doubt be unpalatable to many Americans.

D.M. has a Juris Doctor from New York Law School and is a freelance writer and editor from New York City.

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24 Comments

Jancis M. Andrews said:

It is incredible and frightening for women of the First World to see that Sharia law is even being considered. What happened to our hard won equality rights? Sharia law is a huge step backwards into the dark ages for men as well as women, but particularly for women. When Muslims leave their countries to come to First World countries they should be legally obliged to leave their ancient practices behind and accept the laws and social mores of their adoptive country. A man having four "wives" is a man who is collecting women as concubines in his harem. Concubines and harems have no place in a First World country that prides itself on having achieved equality between the sexes. I'm English, and along with many other English people, am totally outraged and dismayed that the UK should have succumbed to Muslim pressure and spinelessly accepted Sharia law. What a misogynistic move! All justice-seeking citizens should work to keep Sharia law OUT. The year is 2010 AD, not 2010 BC.

Thursday, November 11, 2010 at 6:30 PM

Ruth Ann Wilson said:

"One of the most important of these is religious freedom; first, that the laws of the nation would be secular and that the government would not "establish" a religion (separation of church and state), and second, that people living here would be free to worship as they see fit, or not at all." quote from article"establish a religion" was this to the Founders - the government was not going to tax ALL citizens for the establishment of the Church. That was what they had come from and what they did not want the government to do - Tax ALL citizens to keep up a State church as was done in England with the Episcopal church. So the convolution of this subject has been a contrivance to destroy Christianity ie destroying our Christan Foundations. That was not the intent of our Fathers to destroy Christianity. Quite the contrary, they acknowledged that if we didn't hold the Ten Commandments of Almighty God, we couldn't maintain a Constitutional Republic.See why the 1963 atheist O'Hare's pleas to the Supreme Court was so deadly???? Rule God, Bible, Prayer, and the Ten Commandments from the Public Schools, destroying the distinct Christian foundations of this Constitutional Republic and that destroys the Constitutional Republic. What a diabolical scheme. REVERSE this.Supreme Court Decision - 1892 "This is a Christian Nation." The "press" to make US without Christian Foundations in our Beloved Nation is to destroy our Constitutional Republic. That is why the enemies of the Constitutional Republic must remove Christianity from our Beloved Country. If they destroy our Christian Foundations, they destroy our Beloved Constitution. "What God has put together, let no man put asunder" - America, The BeautifulFor God & CountryThe American

Friday, November 12, 2010 at 1:07 PM

Bud said:

First, I do not see Sharia Law as a religion but as a cult. Our duty is to use the Constitution of The United States to protect THIS COUNTRY and not try to rationalize the acceptance of ANYTHING that is contrary to our basic concepts. People coming to this country from other parts of the world should be required to adopt our basic laws. If that is not acceptable they should go elsewhere. At the rate we are going now we will be a third world country in ten years and most of our citizens do not know how to survive in such an environment.

Wednesday, November 17, 2010 at 1:26 PM

Jim Ellis said:

The Constitution defines all three branches of our government. It is also the basis for our laws. International Law and Sharia Law have no place in our judicial system. They are not part of our Constitution and often as the article points out contradict Constitutional Law. The Judicial Branch is charged by the Constition to decide if a law is legal based on the Judges interpretation of the constitution, not international law or Sharia Law.

Wednesday, November 17, 2010 at 1:32 PM

Gelio in Warren said:

For one, Sharia Law violates all the principles outlined in the Constitution and the Declaration of Indepence. Especailly the statement "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalieanable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

Wednesday, November 17, 2010 at 3:19 PM

Charles Sproull said:

Comments on, “Muslims fight Oklahoma anti-sharia amendment.” Americans should never have allowed our federal, state and local governments, and communities and college campuses to get into this clumsy situation. Our 1st Amendment freedom of expression is being stretched to the breaking point. The original context and Founding Fathers’ intended meaning of “freedom of expression” is freedom from the oppressive religious-controlled governments and government–controlled religions that have always existed in Great Britain and Europe. Maybe that’s why Muslims are finding it so easy to institute their “sharia law” over there, but not here in America. Our Founders and original immigrants left Great Britain and Europe because they desired freedom to express their Bible-based religious faith. Our 1st Amendment freedom of expression doesn’t give people of other religions freedom of expression, if those expressions include actions that disobey our laws and limit our freedoms. Islam is nothing more than a tyrannical political system pretending to be “a religion of peace,” so they can come over here and also have their religious freedom to dominate over us, and make American Christians “feel subdued” (dhimmi) as 2nd class citizens in our own country. In order for any person to become an American citizen, he or she should agree to “defend our Constitution from all internal and external enemies.” Our Constitution is what made America the greatest and most attractive nation on earth. But unfortunately, we have allowed it to become attractive to selfish, domineering and ignorant people who desire to ruin it. All Islamics and Muslims should be taught the history of how the Bible influenced the writing of our Declaration of Independence and our Constitution. Those who are offended or cannot agree to live within the original boundaries of our Constitutional Republic and treat all other Americans as 1st class citizens should be denied access to American citizenship. Or if already (errantly) granted citizenship, they should be deported back to the Middle East where they would feel more comfortable, and where they won’t need to fight “anti-sharia amendments.”

Thursday, November 18, 2010 at 12:29 PM

Gwen Varisco said:

First of all, Sharia Law, is just that, their LAW.Islam is the Muslims religion.We are tolerant of others religions, but we are not OBLIGATED to be tolerant or accept others LAWS. Everyone should have to obey our laws of the United States of America. If others don't like those rules than they should leave and go back to where they came from.

Friday, November 19, 2010 at 2:42 AM

highway said:

When you enter a country, YOU follow the constitution and laws of its society! If you are unable or unwilling, Leave!GOD BLESS AMERICA!!!

Friday, November 19, 2010 at 3:04 PM

R. Woecester said:

This is an essay the Vichy French could appreciate.

Friday, November 19, 2010 at 3:40 PM

Clear Thinker said:

Sharia should never be treated as law in America. Add to the points above that the Quran teaches that a thief should have his right hand cut off. And a Muslim who converts to a different religion should be killed. Would we ever accept "honor killing" or wife beating as permitted in America? And the Quran teaches that "infidels" (that includes anyone who is not a Muslim) should be converted to Islam, agree to submit to Islam, or be killed. Do you question any of this? If so, read the Quran. Islam is a "peaceful" religion only if all the world becomes Islamic. I say, "No thank you." We must protect the freedom our Constitution and Bill of Rights proclaims.

Friday, November 19, 2010 at 7:30 PM

karl anglin said:

The US Constituition already forbidsshariah law! Enough said!

Wednesday, November 24, 2010 at 7:05 PM

Hasidic Jew said:

We Jews long ago settled this issue regarding halachah (Jewish law) versus civil law with the principle "the law of the land is the law" in regard to civil matters. Those of us who choose to strictly observe the Sabbath and Jewish holy days, keep the cdietary laws, etc. accept the fact that there are some occupations we cannot participate in because of this choice. Sometimes arrangements can be worked out privately with employers to have the Sabbath off, but we do not demand that the laws be changed. Muslim immigrants are going to have to make simiar accommodations.

Wednesday, January 26, 2011 at 8:12 PM

Just Another Christian said:

The Sharia Law CANNOT be allowed in America. Every other religion has lost any involvement in our nation and its society, so would someone please tell me why we are openly accepting a religions LAW to contaminate our government.

Monday, March 28, 2011 at 1:49 PM

brian said:

when in Rome do as they do, if we were living in an Islamic country we would be required to follow their laws this is the United States of America so ergo you follow its laws. for all its faults and short comings its still the best nation in the world. the constitution was created to protect us, we should not try to dilute it to please every one because in the end what ever is diluted becomes of no good and is defunct. remember what has made this country great is our many differences, perspectives and freedoms But we should not pick one over the other. for the USA to remain great we cannot dilute.

Thursday, March 31, 2011 at 8:27 AM

Rayzor said:

If the Muslims immigrate to another non-Muslim country, they should follow the law of the land. If they don't want it, then they should get the hell out of the country! If they want to stay and have a new life, worship as you please but obey one set of laws and that is the Law of the Land!

Tuesday, May 3, 2011 at 5:05 PM