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March 22, 2006 1:22 PM   Subscribe

Shari'a law vs. the US Constitution. In the matter of the establishing in the US Muslim enclaves practicing, imposing, and enforcing Islamic law, Shari'a.
posted by semmi (47 comments total)

 
Seems pretty straightforward, US law trumps Shari'a law within US boundaries. If individuals freely choose to follow Shari'a all the more power to them. Problems may arise if over restrictive practices are applied to those that can't consent (i.e. children), other than that...?
It is a price one pays to live under a secular government. (I am intentionally avoiding implications to current political messiness vis a vis christians)
quote from article:
As the Supreme Court stated in Cantwell: the freedom to believe is absolute, but the freedom to act, in the nature of things, cannot be, especially as to the safety and preservation of the American democracy.
posted by edgeways at 1:32 PM on March 22, 2006


Seems pretty straightforward, US law trumps Shari'a law within US boundaries.

We allow peyote use for religious observance even though it's a schedule one drug so clearly it's not that simple for other religions...
posted by phearlez at 1:37 PM on March 22, 2006


Note to self:
Move to the Islamic Center for Human Excellence's enclave, start throwing BBQ and Beer bashes, wait for protests, write book, get on Bill O'Reilly, Profit!
posted by madajb at 1:40 PM on March 22, 2006


Neat thing about democracy: if you can convince the legislature to make new laws, then you can get the laws you want that exist within the restrictions imposed by the Constitution. If you can't, too bad.

I don't know Shari'a well enough to say that its laws are unconstitutional. But surely some of Shari'a laws would be constitutionally permissible. So go convince the legislature! You can't win there? Too bad. Welcome to representative democracy.

Otherwise, edgeways is correct. They can have a mutually, privately enforced following of whatever beliefs one wants. But there is no right to have beliefs endorsed in the law.

Shari'a fans can go start a Branch Davidian compound and only allow other Shari'a fans in if they want. But they can't turn Cut n' Shoot, Texas into a Shari'a city where everyone there must follow it.
posted by dios at 1:43 PM on March 22, 2006


phearlez, the peyote example, now codified in RFRA, is the opposite end of the spectrum from this case. The peyote example is about excusing individual religious adherents from otherwise applicable general laws, while the proponents of Shari'a enclaves want their religious principles imposed on their entire communities.
posted by monju_bosatsu at 1:44 PM on March 22, 2006


Shari'a fans can go start a Branch Davidian compound and only allow other Shari'a fans in if they want. But they can't turn Cut n' Shoot, Texas into a Shari'a city where everyone there must follow it.

That's partially true. Even if they form their own compound on privately owned land, populated only by volunteers, it would still be impermissible to punish violations of their Shari'a laws by, say, stoning the violator.
posted by monju_bosatsu at 1:47 PM on March 22, 2006


It would still be impermissible to punish violations of their Shari'a laws by, say, stoning the violator.
posted by monju_bosatsu at 3:47 PM CST on March 22


I'm no expert on stoning. But if the stoning doesn't result in death, then two individuals can freely agree to engage in it without raising constitutional or criminal implications. I can agree to let you cane me if I want.

Again, I'm no expert on Shari'a law, but there is probably a healthy amount of it that could be implemented within the parameters of the laws of this Country.
posted by dios at 1:51 PM on March 22, 2006


phearlez, also, the peyote example is one of a religious custom that contravenes a drug law, while there are principles of Shari'a (including the compulsion of which monju wrote) which contravene the very principles of American democracy. Different kettle of fish.
posted by QuietDesperation at 1:53 PM on March 22, 2006


My first thought was the Amish and the Mormons. America has a rich legacy of religious splinter groups, dating back to the Puritans, that want to absolve themselves from existing legal authority. I think this is a smart article, but the whole premise of Muslims doing something radically new is a bit scare-tacticish.

And the reading of Brown v. Board is a little skimpy. The author implies that blacks somehow wanted to be schooled in poorly maintained shotgun-shacks with underpaid teachers, or that it was their right to this lower standard, or part of their religious or social belief. That's an inappropriate historical understanding.

That said, my sympathy for muslims wanting to establish enclaves that don't have to abide by the law is minimal, as it is for this Catholic version. There are perfectly good theocracies out there and America isn't one of them.
posted by bardic at 1:57 PM on March 22, 2006


Participation in the community would have to be voluntary of course.

But what's the situation for minors? If an adult consents to be stoned within an inch of his life, that's his business, but minors can't consent to that kind of thing and it would be illegal for their parents to knowingly allow it to happen.
posted by sonofsamiam at 1:59 PM on March 22, 2006


monju, I do not disagree with that assessment - I was just responding to the statement "it seems pretty simple." The areas where US law and religious guidance butt up against each other are not often simple and the ascendancy of one over the other isn't necessarily a given.
posted by phearlez at 1:59 PM on March 22, 2006


Yeah, the peyote thing is a whole other kettle of fish. Doing drugs is against the law, it isn't really against the Constitution. Furthermore, anti-drug laws already have numerous exceptions; i.e. some illegal drugs are allowed with a perscription. The thing with Shari'a, (which I admittedly know little about), is that it probably goes directly against the principles of the consitution itself in such things as equality, definitions of crimes and rights, and methods of punishment.
posted by unreason at 2:00 PM on March 22, 2006


I can agree to let you cane me if I want.

Unless it's a sexy caning... at which point it is immoral and naughty and the government MUST INTERVENE!
posted by BobFrapples at 2:00 PM on March 22, 2006


My first thought was the Amish and the Mormons. America has a rich legacy of religious splinter groups, dating back to the Puritans, that want to absolve themselves from existing legal authority.

True, but they usually didn't get away with it for long, at least not completely. The Mormons, for example, had to outlaw polygamy and generally put their house in order to join the US as a state. The Amish get a few common sense exemptions, like immunity from the draft due to their pacifism, but they haven't really asked for any huge exemptions. Generally speaking the US has not smiled upon massive exemptions on religious grounds. Groups have gotten exemptions, but only after much review, and never for something as sweeping as an establishment of a whole religious system of law.
posted by unreason at 2:04 PM on March 22, 2006


Is dios considering an invitation for monju_bosatsu to cane him, maybe?
Is there a mefite qualified to referee such an event?
Will a venue be chosen and tickets sold?
Profits to charity or a law school of thheir choice?
posted by Cranberry at 2:06 PM on March 22, 2006


This is part way down the slippery slope already. It may be rationalized at this point as merely some tension and accomodation, but as soon as any variation of this is permitted in one place, there will be increasing pressure for more and more concessions (maybe killing apostates, as in yesterday's news? maybe enforcement of covering females; sexual mutilation; and much more). Inevitably it deteriorates to where they're eventually trying to take over government and impose sharia on everyone.

This "takeover imperative" is peculiarly a characteristic of the Muslim faith. Christianity and Judaism have outgrown their respective malignant phases, but Islam is still metastasizing.
posted by jam_pony at 2:15 PM on March 22, 2006


dios writes "I can agree to let you cane me if I want. "

Are you speaking hypothetically or from experience?

(You didn't go to boarding school in Britain, right?)
posted by orthogonality at 2:19 PM on March 22, 2006


Incidentally, the case of a housing association that sought to apply shari'a law to the residents of the homes covered by the covenant might be one where courts would actually apply the principle of Shelley v. Kraemer.
posted by monju_bosatsu at 2:19 PM on March 22, 2006


jam_pony : "there will be increasing pressure for more and more concessions (maybe...sexual mutilation...)"

Let's keep circumcision out of this. We don't handle it well.
posted by Bugbread at 2:21 PM on March 22, 2006


I'm no expert on stoning. But if the stoning doesn't result in death, then two individuals can freely agree to engage in it without raising constitutional or criminal implications. I can agree to let you cane me if I want.
Hmm. I can't help feeling that passing a death sentence of death by stoning that doesn't actually result in death by stoning isn't really all that much of a sentence. "The penalty for adultery is to be stoned until it hurts quite a bit" probably isn't the punishment they'd have had in mind.

Also ... stoning is a bit of an inexact art when it comes to determining at what point to stop.

Also, of course, I have to ask : "Are there any women present?" :)
posted by kaemaril at 2:23 PM on March 22, 2006


The article starts badly:

Such questions are no longer theoretical. While Muslim organizations first established enclaves in Europe[1]

The only example given is a council run old peoples home that provides halal food and prayer services for 40 Muslim OAPs.

Hardly an enclave operating under Sharia law. Does anyone have better examples of Sharia law in the EU?
posted by Olli at 2:25 PM on March 22, 2006


jam_pony writes: This "takeover imperative" is peculiarly a characteristic of the Muslim faith. Christianity and Judaism have outgrown their respective malignant phases, but Islam is still metastasizing.

Look, I'm totally opposed to any religious group or cult getting dispensations from laws that I have to follow, but to single out Muslims here is wrong. First off, it's not usually a takeover imperative as it is a leave-me-alone imperative, which is fine when it comes to things like how you want to raise you child, what skygod you want to claim fealty to, etc. As an American, I see plenty of things that Christians do that many Muslims would want to have as well--their own religious private schools, or outright home-schooling are probably two obvious examples. As I mentioned, religious communities are nothing new in America--take the Lubavitchers, for example.

So I'm not trying to defend the rights of Muslims to avoid federal and local laws through an appeal to Sharia law--quite the contrary. I just don't think it's fair to single out one group of loonies for wanting what other more established loony groups (at least in America) already have.
posted by bardic at 2:48 PM on March 22, 2006


How is this any different, qualitatively speaking, than the existence of dry counties?

Dios is right. If enough people vote to ban alcohol (or music, or pork, or scanty clothing), and if the ban is enforced without discrimination or sketchy police tactics, then it's constitutional. If you don't like it, vote and lobby against it. That's how democracy works.
posted by nebulawindphone at 3:25 PM on March 22, 2006


it's not usually a takeover imperative as it is a leave-me-alone imperative

"Only one ambition is worthy of Islam, to save the world from the curse of democracy: to teach men that they cannot rule themselves on the basis of man-made laws. Mankind has strayed from the path of God, we must return to that path or face certain annihilation." --Sheikh Muhammad bin Ibrahim al-Jubair
posted by semmi at 3:28 PM on March 22, 2006


And according to Fred Phelps, all true Christians think that God hates fags. Next.

Qualitatively, religious texts don't just sit uneasily next to a secular documents like the Constitution (and Bill of Rights), they have inherent assumptions that are contradictory. The dry county thing is a red herring anyways--if a county board passed laws legalizing slavery again, you can be sure state and federal lawmakers would be quick to intervene. You can vote to disallow your right to purchasing alcohol, but you cannot vote to disallow Constitutional protections.
posted by bardic at 3:45 PM on March 22, 2006


Ah, so inside this enclave, any financial transactions involving interest will be illegal, anyone who steals and gets caught will lose a hand, and adulterers will be stoned to death, eh?

I think the Constitution has something to say about most of that, and the banks will cover the other.

dios, stoning in the Quran and Bible means stoning to death, without ambiguity. I don't think the US Government will be able to allow any agency other than itself or the State governments to apply the death penalty, especially without a Constitutionally-valid trial. Do you?
posted by zoogleplex at 3:59 PM on March 22, 2006


You can vote to disallow your right to purchasing alcohol, but you cannot vote to disallow Constitutional protections.

You may want to pass that along to the South Dakota legislature.

I'm totally opposed to any religious group or cult getting dispensations from laws that I have to follow, but to single out Muslims here is wrong.

There seems to be a fundamental difference between Islam and Christianity when it comes to government. The Koran seems to have lots to say about how to govern, while the Bible doesn't. There's no Christian analogy to Shari'a, to the best of my knowledge. I'll freely concede that I haven't read much of either book, though, so I could be wrong about that.
posted by me & my monkey at 4:04 PM on March 22, 2006


dios writes "I'm no expert on stoning. But if the stoning doesn't result in death, then two individuals can freely agree to engage in it without raising constitutional or criminal implications. I can agree to let you cane me if I want. "

This sounds too easy to me - wouldn't such an arrangement have to carefully laid out in a contract? The existence of boxing is evidence that assault can be lawful if both parties consent but, in the case of boxing, the risks are well known and it is reasonably clear that no one is being coerced into participation. But is it possible to arrange punitive stonings as cleanly? This reminds me of hazing laws; I seem to remember that consent was a defense in hazing incidents but when those incidents became so extreme that risk of permanent injury became possible or the act became sexual in nature, consent was not a defense.
posted by mullacc at 4:05 PM on March 22, 2006


jam_pony: This "takeover imperative" is peculiarly a characteristic of the Muslim faith.

Bull shit.
posted by oncogenesis at 4:18 PM on March 22, 2006


There seems to be a fundamental difference between Islam and Christianity when it comes to government. The Koran seems to have lots to say about how to govern, while the Bible doesn't. There's no Christian analogy to Shari'a, to the best of my knowledge.
-- me & my monkey

Correctamundo. Christianity has always recognized a division between church and state (though the church considered itslef superior for a long time). (Jesus "render unto Caesar what is Caesar's..." etc..) Islam does not. It is a plan for all aspects of society, from daily rituals of individuals to politics and economics. It does not allow that any principles other than its own tenets can have any authority.
posted by jam_pony at 4:18 PM on March 22, 2006


nebulawindphone: Dios is right. If enough people vote to ban alcohol (or music, or pork, or scanty clothing), and if the ban is enforced without discrimination or sketchy police tactics, then it's constitutional. If you don't like it, vote and lobby against it. That's how democracy works.

That's the tyranny of the majority at work. It's nothing to be proud of.
posted by oncogenesis at 4:19 PM on March 22, 2006


m&mm, kind of. Actually, the split between the Sunni and Shia has a bit to do with your point. Sunnis believe that the caliphates could be headed by wise men. Shia thought they had to be headed up by descendents of the prophet Muhammed. Which is to say, extrapolating political judgements from religious texts is a delicate thing--no, Jesus was not a politician, and he spends a fair amount of time castigating the Roman government around him, but there's also the "render unto Caesar" apsect, generally accepted as the idea that a true Christian should pay taxes to the (ungodly) government, because ultimately things will even out in the afterlife. Jesus was also generally opposed to the religious laws of the Pharisees--he spends a goodly amount of time in all four gospels going out of his way to publically defy the religious leaders of his own day and church--hanging out with women, touching the sick, breaking the Sabbath. Having read the Koran in translation, yes, there are a number of laws and prohibitions compared with Christianity, but it has nothing on Leviticus, which is a book that Jesus probably didn't have a lot of patience for.

Shorter version--Jesus wasn't into promoting secular authority and extra governance, but Paul certainly was, and had no qualms with building a Christian political structure on earth, i.e., the Catholic church. Christianity, Islam, and Judaism today have as much to do with after-the-fact determinations about governance than they do with their primary religious texts themselves.
posted by bardic at 4:21 PM on March 22, 2006


"It does not allow that any principles other than its own tenets can have any authority."

Which means that strict application of Shari'a law would be, by definition, un-Constitutional in the United States.

I'm all for religious diversity and allowing wide leeway on religious practice, but there's a fundamental discord between the Bill of Rights and Shari'a. I personally think the Bill of Rights is better.

"That's the tyranny of the majority at work. It's nothing to be proud of."

Quite right, and much of the Constitution, especially the Bill of Rights, is designed or at least intended to disallow the tyranny of the majority over minority rights.

Quite a conflict, this Constitution vs. Shari'a, no doubt about it.
posted by zoogleplex at 4:23 PM on March 22, 2006


We can't stop you from creating your enclave.
But we have to guarantee you equal treatment.
posted by hank at 4:58 PM on March 22, 2006


Correctamundo. Christianity has always recognized a division between church and state (though the church considered itslef superior for a long time). (Jesus "render unto Caesar what is Caesar's..." etc..) Islam does not. It is a plan for all aspects of society, from daily rituals of individuals to politics and economics. It does not allow that any principles other than its own tenets can have any authority.


Bollocks. Shariah includes a directive to abide by the laws of the host country. I think we can accept that Islam allows for the recognition of temporal authority.
posted by pompomtom at 5:54 PM on March 22, 2006


We allow peyote use for religious observance

Indigenous people always get special allowances.

Last I looked into it there weren't any indigenous muslims in the U.S.
posted by HTuttle at 6:56 PM on March 22, 2006


Shariah includes a directive to abide by the laws of the host country. I think we can accept that Islam allows for the recognition of temporal authority.
posted by pompomtom at 5:54 PM PST on March 22 [!]


Where are you getting this from? I haven't seen any indication of this either by word or deed.
posted by semmi at 7:15 PM on March 22, 2006


Where are you getting this from?

Oooh, good question. My high school comparitive religion class, probably. Jeez I hated that class.

It's hard to find anything like a definitive citation online, but then I suppose that's part of the non-heirarchical system we're discussing. Anyhow here's one of the more specific references I could find right now:

I stand on the Shariah which states that a Muslim living in a non-Muslim country must obey Muslim Law to every extent possible, and that we must also adhere to the laws of the host country.
posted by pompomtom at 8:50 PM on March 22, 2006


Oh, and as for: I haven't seen any indication of this either by word or deed.

You've never seem a Muslim obey a secular law?

Any number of smart-arse comments spring to mind, but I'll leave it at: I find that very hard to believe.
posted by pompomtom at 9:12 PM on March 22, 2006


If individuals freely choose to follow Shari'a all the more power to them. Problems may arise if over restrictive practices are applied to those that can't consent (i.e. children)

That's really the crux of the matter. There's little state interest in whether one is halal in one's personal life, eschewing drink and tobacco, for example. The state rarely intervenes in the choices of adult Christian Scientists to avoid modern medical treatment, or Scientologists to avoid psychology, or the Amish to avoid using telephones and computers. We do, however, draw the line at the health of children of Christian Scientists, and at polygamy among the Latter-Day Saints sects which allow it. (Polygamy is permissible in Islam, but rare, as it's an expression of wealth.)

The real questions surrounding Shari'a are ones like these:
* Should a Muslim woman seeking a divorce be bound by Shari'a law?
* Should custody after a divorce be decided by Shari'a?
* Should Muslim objections to (say) cartoons be given weight in the broader world?

Female circumcision, by the way, is a tribal practice in Africa and parts of Asia that is not connected with (but rather overlaps largely with) Islam. There's nothing in Shari'a about it. Same with honor killings and rape as debt payment.
posted by dhartung at 9:18 PM on March 22, 2006


Bollocks? My sources are as vaguely remembered as yours, I suppose, but include, for examle, Ibn Warraq in his Why I am not a Muslim (or other similar book) and my ex-brother-in-law who was imam of the local mosque.

Backing off a little, tho, I have to say, there are as many interpretations of the religion as there are adherents, just like with Christians, etc.. Nevertheless it is possible to discern general tendencies or consensus. And my original comment was based on the idea that, altho in any population there's a range from theocrats/fundies to liberals, the trend is driven by the former.

dahrtung, condonation or a theologically bogus tradition believed to be based in the religion is as evil as a koranic mandate. Same goes for chador, etc. What matters is the principle of whether religion-based rules are allowed to trump otherwise protected rights or not. We seem to agree on this.
posted by jam_pony at 10:20 PM on March 22, 2006


Unless it's a sexy caning... at which point it is immoral and naughty and the government MUST INTERVENE!

SPANNER style!
posted by PeterMcDermott at 4:08 AM on March 23, 2006


There seems to be a fundamental difference between Islam and Christianity when it comes to government. The Koran seems to have lots to say about how to govern, while the Bible doesn't. There's no Christian analogy to Shari'a, to the best of my knowledge.

How could anybody even compare a few isolated attempts by Muslims to create Sharia environments for themselves with the scope, scale, and sheer energy of the US fundamentalist Christian enterprise to transform the US into a Christian nation, abiding by "Christian" moral codes (abortion, et. al.)? Are you all being wilfully blind?
posted by laz-e-boy at 8:28 AM on March 23, 2006


The difference between Islam and Christianity is that Christianity is a social and religious movement, while Islam is a social, religious, and political movement.

In Mohammed's life, he was a political warrior, a conquerer, and a leader of a state. His teachings teach that land... not just people's faith... is a part of Islam. This is presented in the House of Islam/House of War dichotomy. Land which is in the House of Islam must forever be in the House of Islam. Land not in the House of Islam is in the House of War. While Christians and Westerners see themselves as part of a state with various religions therein, the Koran teaches Muslims that they are part of one religion and one state, artificially cut up into political entities. For two millenia, Islam was headed by the caliphate, and the caliph was the political head of all of Islam. There is nothing comparable in Christianity. There is the Pope, but he is merely the head of a church (and of his little political state in Vatican). But the Pope is not even remotely analogous to the caliphate.

So, there is a fundamental difference in Christianity and Islam in that Islam is an inherently political idea as well.

The attempts of various modern sects at politicizing their beliefs do not apply here. The issue is the teachings of the religions founders. Mohamed taught that Islam was a political entity that must control the law. Jesus did not.
posted by dios at 8:46 AM on March 23, 2006


dios, that's a unique reading of Islam. As I mentioned above, the Sunni-Shia split occurs over an interpretation of how religiously influenced their political leadership should be. Which is to say, sure, Islam has an element at its core of how a government should be run, but so do many of the letters of Paul. He spends a lot of time trying to figure out how to establish a politically powerful institution on earth, i.e., what would come to be known as the Catholic church. Is Islam perhaps more politically bent, at an earlier stage, than Christianity? That's closer to the truth, but for historical reasons--Jesus preached at a time when both the Roman empire and Jewish theocrats were at the height of their power.

Anecdotally, Mohammed was a merchant. Jesus didn't carry weapons, but his apostles did, e.g., the garden of Gethsemane.
posted by bardic at 10:05 AM on March 23, 2006


Except that reading ignores all of the facts of the Koran, the history of Islam, the biography of Mohamed, and the specific teachings of Mohamed. It also attempts to say that Paul's attempt at fashioning a church is somehow a tenant of all of Christianity and supersedes the teachings of Jesus Christ.


Again, the facts as follows, which you comment doesn't contradict:

In Mohammed's life, he was a political warrior, a conquerer, and a leader of a state. His teachings teach that land... not just people's faith... is a part of Islam. This is presented in the House of Islam/House of War dichotomy. Land which is in the House of Islam must forever be in the House of Islam. Land not in the House of Islam is in the House of War. While Christians and Westerners see themselves as part of a state with various religions therein, the Koran teaches Muslims that they are part of one religion and one state, artificially cut up into political entities. For two millenia, Islam was headed by the caliphate, and the caliph was the political head of all of Islam. There is nothing comparable in Christianity. There is the Pope, but he is merely the head of a church (and of his little political state in Vatican). But the Pope is not even remotely analogous to the caliphate.

posted by dios at 11:01 AM on March 23, 2006


dios, simple question: Have you read the Koran?

That said, here's my last comment about this article, which I did enjoy reading, although it's vague in places, and could have gone further to illustrate the fact that Islam is not a monoloth (no religion is).

I think there's a tendency to single out Islam for being more desperate for political power than other religions. No doubt some sects are, not to mention the fanatics like bin Laden. But to point this out is to ignore major swaths of Christian history--the establishment of the Catholic church, the influence the Vatican had on European kings until the Great Schism, and more recently, the desire on the part of many American Evangelicals to get more political, to encourage their congregations to vote Republican, etc. Personally, I have no dog in this fight--I think religion has no public place in modern liberal society, but to cast a stone at Muslims for wanting to mix their faith and their politics is to ignore multiple instances of this with regards to Christians (again, Mormons and Amish are two interesting examples to start with). To quote Jesus, don't start accusing others of having motes in their eye when you've got a whole friggin' plank, starting with Christian private schools and universities, Rex Reed, Christian activists trying to re-write and/or ban science text books, etc.

As for "original intent," I'd agree that Jesus taught radical disassociation from government, with intriguing "Rend unto Caesar" moments, which are debated to this day. My response is, so what? What we know of as the Christian church today, be it Catholic, Baptist, Mormon, what have you, has little to do with what Jesus actually taught. The same could be said of Mohammed and Islam, although there are obvious differences. Again, the Sunni-Shia split is more than enough evidence to indicate that these issues are far from settled within Islam itself. (Judaism is interesting as well, since the Hebrew Testament was codified around 500 BCE, when, arguably, the Kingdom of David was comparatively stable and unified. There are plenty of laws (Leviticus), but less of an anxiety about religious vs. political authority, since the two were intertwined at the time).

Long story short: The fear that Islam is more hellbent on gaining wordly/political power than other religions is, I think, misguided--I'd be worried about Christianity's growing political influence as well (as an American, I'm certainly much more convinced that Evangelicals and right-wing radicals are more of a threat to my democracy than Islam could ever be, if only for sheer numbers).
posted by bardic at 11:36 AM on March 23, 2006


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