Foreign Law, Sharia and American Jurisprudence

Increasingly, state legislatures have voted to ban the use of Sharia law in federal and state courts. Legislators in almost two-thirds of state legislatures have introduced bills in the last three years to block courts from considering foreign or religious laws in their rulings.

By Andrew Thomas | September 26, 2013

American judges, including justices of the United States Supreme Court, increasingly rely on and cite foreign law in their rulings. The public is beginning to react accordingly to what many perceive as a threat and affront to U.S. sovereignty. In a rising wave of states, the voters and their elected representatives are taking steps to halt this trend.

One flashpoint in this conflict is Islamic law, or Sharia. Based on the Quran and the teachings of Muhammad, Sharia is being applied in a variety of U.S. legal cases, particularly in family law and suits involving U.S. Muslims. The laws of Sharia are largely religious, encompass all human conduct, and are subject to extreme application. This has led Americans to take preemptive action to prevent the enshrinement of Sharia in U.S. law.

Increasingly, state legislatures have voted to ban the use of Sharia law in federal and state courts. Legislators in almost two-thirds of state legislatures have introduced bills in the last three years to block courts from considering foreign or religious laws in their rulings. Arizona, Kansas, Louisiana, Oklahoma, South Dakota, Tennessee, and most recently North Carolina enacted such legislation. Democratic Governor Jay Nixon vetoed a similar bill in Missouri.

The vast majority of these bills do not single out Sharia law as the catalyst for the reform. Only 21 of the 92 bills introduced between 2010 and 2012 specify a prohibition on considering Sharia or other religious laws. An important exception was a voter-approved measure in Oklahoma called “Save Our State Amendment.” On the ballot in 2010, it directly prohibited courts and state judges from considering Sharia in rendering decisions.

The ballot language read in part: “The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.” The author of the measure, State Representative Rex Duncan, described the measure as a preemptive strike designed to stop international and Sharia law from infiltrating Oklahoma courts. Given a choice of voting yes or no, seven out of ten Oklahomans voted yes.

Before the law could take effect, however, a Muslim man in Oklahoma City and the Council of American-Islamic Relations (CAIR) brought suit in federal court. A federal judge struck down the law as unconstitutional, saying it violated the freedom of religion clause in the First Amendment. “It is abundantly clear that the primary purpose of the amendment was to specifically target and outlaw Sharia law,” the judge wrote.

A federal appeals court upheld the ruling. The court held that supporters of the law, backed by the 70 percent of state voters, “do not identify any actual problem the challenged amendment sought to solve.” The panel stated there was not “a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.”

The court failed to explain why Oklahoma voters could not pass legislation designed to preempt the emergence of a problem. Indeed, and to the point, there is disagreement even among devout Muslims about what constitutes Sharia. Many Americans and Westerners equate Islamic law with a sanction for terrorism, cruel and unusual punishments for sex crimes, and misogyny. They do not want to see such principles take root in the U.S. legal system.

Sharia is an Arabic word that means a path to be followed. It is derived from the precepts of the Quran and Muhammad; interpretations of Sharia are called “fiqh,” or Islamic jurisprudence. Sharia regulates personal and collective actions. Some majority Muslim nations, particularly those in the Middle East, have adopted Sharia as the national judicial code. Other nations, generally those on the geographical fringes of Islam in Africa and Central Asia, have legal standards that are less stringent.

The rule of law and constitutionalism, however, are absent in the Arab world. Though the Islamic golden age left us important intellectual accomplishments by Averroes, Avicenna, and other original thinkers, much of Islam today rejects the Western notion of individuality and God-given rights as recognized by the Founders. In Islamic nations, the absolute sovereignty of Allah and the enforcement of an official, established religion by the state leave little space for the individual. Muhammad united church and state and created a political order based on Sharia, where political and social independence is subordinate to theological considerations and the notion of civil rights is alien. In this context, Sharia law may be seen as quite hostile to American jurisprudence, particularly when better understood by the general public.

Critics of Oklahoma-style crackdowns have raised the prospect of Americans losing basic rights if courts are banned from relying on international law. One writer with the ACLU recently raised the prospect of marriages and adoptions by Americans in foreign countries being disallowed and not recognized by U.S. courts should such reforms be adopted. Those opposed to reliance on international and Sharia law point out that their reforms do not create such extreme situations, and these examples are fear tactics of the left. Indeed, there are no examples of such bizarre outcomes in states that have barred judicial reliance on international law.

The legislation passed in states other than Oklahoma do not single out Sharia or other religious laws and are more likely to survive judicial scrutiny. Regardless, it is likely resistance to the growing invocation of international law by U.S. judges, and Sharia in particular, will continue to mount as Americans see their sovereignty under attack by judges looking beyond U.S. borders for legal guidance.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.