In recent years though, another threat to our constitutional rights has been bubbling beneath the media circus – the passage of anti-sharia legislation across the country.
In this feature piece, I use two issues – gun control and anti-sharia legislation – to illustrate just how disproportionate our fear of Muslims has become, and the profound danger this paranoia poses to our most basic constitutionally enshrined rights and values.
Guns: evaluating the threat
Americans have the highest gun ownership rate in the world – with nearly 89 guns for every 100 people. Yemen comes in a distant second with about 55 guns per hundred people. According to the Small Arms Survey, “with less than 5% of the world's population, the United States is home to roughly 35–50 per cent of the world's civilian-owned guns”. Given that 68% of homicides in the United States involved firearms, these high rates of gun ownership in the US undoubtedly contribute to its high murder rate. Last year, in the US there were 4.2 homicides per 100,000 people compared to 1.2 in the UK, 0.8 in Germany, and 0.4 in Japan.
Furthermore, despite claims to the contrary, most evidence suggests that owning a gun makes you more susceptible to violence, not less. Studies have shown that having a gun in the home increases the risk of suicide from anywhere from 2 to 10 times. Guns are used in 2 out of every 3 homicides committed by the victim’s spouse or former spouse. And out of the 10 ten states with the lowest gun death rates, seven of those are states with the strongest gun laws.
The massacre that occurred a few weeks ago in Newtown – however tragic – is just the tip of the iceberg in terms of how gun violence affects American youth. According one report:
- A child or teen is killed by a gun every three hours.
- The 5,740 children or teens killed by guns in 2008 and 2009 was greater than the number of US military personnel killed in action in Iraq and Afghanistan (5,013).
- Over 87% of children living in high-income countries, who are killed by guns, live in the United States.
Why all this concern after the massacre in Newtown? Perhaps it’s because those upper-middle class, mostly white children were considered more worthy of attention. In fact:
- Black children and teens accounted for 45% of all child teen and gun deaths in 2008 and 2009 but were only 15 percent of the total child population.
- The leading cause of death among Black teens ages 15 to 19 in 2008 and 2009 was gun homicide.
- Of the 116,385 children and teens killed by a gun since 1979, when gun data by age were first collected, 44,038 were Black – nearly 13 times more than the number of recording lynchings of Black people of all ages in the 86 years from 1882 to 1968.
Guns are a real threat to our communities and our families – and especially to our children of color.
Sharia: evaluating the threat
In December 2011, then-presidential candidate Newt Gingrich called sharia "a mortal threat to the survival of freedom in the United States and in the world as we know it”. Astonishingly, proponents like Gingrich have successfully positioned sharia law as an imminent threat to the secular (stroke-Christian) American state, the likes of which we have never seen before. Yet as one legal scholar pointed out:
“American Jews, Catholics, Mormons, Sikhs, Hindus, Buddhists, Native Americans and others regularly request legal accommodation for religious rules that conflict with the secular law of the land. As a result, our legal system has established several policies and practices for adjudicating these cases. To put it concisely, American judges balance the constitutional right to religious exercise with other constitutional and legislative principles, using legal tools such as comity, public policy and unconscionability.”
Islamic law has been considered in US courts on issues ranging from the recognition of foreign divorces, to the resolution of custody disputes, to the awarding of damages in commercial disputes, to the distribution of an estate after death. The most common sharia-based claims in US courts involve Islamic family law and cases regarding the mahr (the bridal gift) are perhaps the most heavily litigated. Tim Robinson has handled more than 100 cases involving components of sharia law, either as an attorney, consultant or expert witness. In a recent article published in the Nation, he shared two examples of how US courts have responded to sharia-based claims:
“In a case I tried in 2002, Odatalla v. Odatalla, a New Jersey couple had signed an Islamic marriage contract consistent with their cultural traditions. When the wife filed for divorce, she asked the court to enforce the mahr, or dowry provision, in her contract, which called for the husband’s payment of $10,000 upon the dissolution of their marriage. Superior Court Judge John Selser found the marriage contract valid under New Jersey law, concluding, ‘Clearly, this court can enforce a contract which is not in contravention of established law or public policy.’”
“In a more recent case I was involved in, a state judge declined to recognize a Syrian court order that would have transferred the custody of a child to her father because of the mother’s remarriage. The judge reasoned that remarriage alone is not sufficient to transfer custody.”
As Robinson stresses, “far from deferring to judgments from foreign countries [that use sharia law], US courts regularly refuse to recognize such orders due to the constitutional and due-process implications”. Since our nation’s birth, American courts have endeavored to maintain a (pseudo) secular (but really implicitly Christian) state while protecting citizens’ religious freedom. Gingrich and others who position sharia as a new and imminent threat to the United States are belying the complexity of our Constitution and the rich history of our rule of law.
Easier than ever to get a gun, harder than ever to enforce aspects of sharia in court
Despite the many bloody massacres in recent years committed in universities, schools, and movie theaters, Americans continue to see Islam – and sharia – as the ultimate thing to fear. According to a 2011 survey, over 30% of Americans believe that Muslims want to establish sharia law as the law of the land, including 52% of Fox viewers. Meanwhile, according to a poll released just days ago, only 24% of Americans support a complete ban on the possession of handguns. Shockingly, the poll also revealed that a marginal majority of Americans (51%) still oppose a ban on assault weapons (and only 16% of states ban or regulate assault weapons, the military-style guns used in the Newtown and Aurora massacres).
Given this polling data, it’s unsurprising that in the last couple of years we’ve seen both a marked relaxation of gun laws across the United States and an astronomical increase in anti-sharia legislation. Gun ownership and carrying is now easier than ever: states have made it simpler for people to obtain guns (including violent felons and people under 18), expanded the number of places where it’s legal to carry a concealed weapon (including day-care centers, churches, bars and hospitals), and given gun owners stronger protections (including passing the kind of “Stand Your Ground” legislation that killed Trayvon Martin). Conversely, in only the last two years, bans on the implementation of Sharia law (or “foreign law”, as it is sometimes euphemistically referred to) have been proposed in 64% of state legislatures across the US.
Recent legislation passed in Oklahoma demonstrates how these two trends operate simultaneously. In November 2010, 70% of voters decided to alter the state constitution by adding the “Save Our State Amendment”, which explicitly barred courts from considering sharia law when deciding cases. Just this past fall, a new law took effect in Oklahoma allowing licensed individuals to carry a weapon into shops, restaurants, banks or anywhere else, even if the weapon is loaded.
Americans’ cognitive dissonance about rights, guns, and Sharia
There’s an important logical corollary to these two diverging trends – namely Americans’ (mis)understanding of how best to protect our ‘God-given’ and constitutionally enshrined rights. Americans still cling tightly to their Second Amendment rights ( “a well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”), and in recent years the Supreme Court has issued landmark rulings establishing extremely expansive parameters for gun rights, in stark contrast to previous interpretations of the same text (e.g. see commentary on the 2008 District of Columbia v. Heller ruling). For the organization Open Carry – which helped lobby for and promote the recent gun legislation in Oklahoma – the discourse of rights was central. It’s motto? “A right unexercised is a right lost”.
Members of the anti-sharia campaign have also attempted to articulate their demands in the language of rights. Proponents have claimed that sharia threatens state and federal law, the Constitution, the separation of church and state, and guarantees for equal protection. For example, in 2011 the neoconservative Center for Public Policy published a report entitled “Shariah Law and the American State Courts”, stating in their report summary:
“These families came to America for freedom from the discriminatory and cruel laws of Sharia… When our courts then apply Sharia law... and deny them equal protection, they are betraying the principles on which America was founded.”
Of course, many of us believe that rather than serving to protect our Constitution, anti-sharia legislation undermines it – by violating our right to practice religion freely and without discrimination. In January 2012, a federal court agreed, ruling that the Oklahoma state amendment likely violated the Establishment cause of the First Amendment (“Congress shall make no law respecting an establishment of religion. . . .”) by singing out Islam for unfavorable treatment, thus upholding an earlier district court decision to block the implementation of the amendment.
Indeed, as one author wrote, “accommodation of sharia does not threaten our rule of law; it is an illustration of it”:
“When American Muslims say they want to live their lives by sharia, they do not mean they want state enactment of sharia. Rather, they would sometimes like to opt out of the prevailing secular law for religious reasons. By making legal requests in American courtrooms, they are not forcing anyone else to opt out with them. (There is a fundamental difference, after all, between an opt out and a takeover.) And when judges accommodate these sharia-based opt-out requests, it is not an example of the slow creeping “shariazation” of American law, but rather of how religious freedom is protected in our secular country.”
Anti-sharia legislation poses a real and potent threat to the constitutional rights of American citizens. How troubling that a certain cognitive dissonance has inhibited a wider debate on the rights of Muslims.
What threatens us is not necessarily what we fear, and vice versa…
In the federal court ruling on the Oklahoma constitutional amendment, the judges wrote:
“Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted, that they did not know of even 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.”
Even attorney David Yerushalmi, whom the New York Times called “the Man Behind the Anti-Shariah Movement”, once commented, “if this thing passed in every state without any friction, it would have not served its purpose. The purpose was heuristic—to get people asking this question, ‘What is Shariah?’” Anti-sharia is not here to protect us, because sharia isn’t a real threat. Rather, the legislation functions to position Muslims as the greatest menace to “our” American way of life and strip away their basic rights, while other more pressing issues are rendered to the sidelines.
To sum up: The average American is willing to tolerate occasional massacres in elementary schools (and other homicides a year), if it means keeping their second amendment rights “fully intact”. But since nearly half of Americans think “Muslim” and “American” are incompatible, we’d sooner infringe Muslims’ first amendment rights by banning sharia law, than take handguns off the streets.
That’s the power of a paranoid delusion called Islamophobia.