"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
The United States Supreme Court, W. Va. State Bd. of Educ. V. Barnette, 1943.
In 2000, Layla and Ahmed were married in an Islamic religious ceremony in Egypt. Last week, Layla filed for divorce in New Jersey and her husband moved to have the court throw out her divorce complaint alleging they were never legally married in the first instance. The judge presiding over the case must now determine whether there is any merit to the husband's claim. To do so, the judge would require expert testimony about Egyptian family law, which is largely based on Sharia.
A recently enacted amendment to the New Jersey Constitution bars the court from even considering or using Sharia when adjudicating cases. The court's failure to recognize Layla and Ahmed's 11 year marriage, however, would severely disadvantage Layla. For instance, she may not be legally entitled to the equitable distribution of marital assets they accumulated during the course of the marriage including the marital home, money in savings accounts, automobiles and timeshare.
How can the family court judge possibly render a just decision without referring to or considering Islamic law?
To make matters worse Ahmed verbally and physically abused Layla during the marriage. Towards the end of the marriage, the physical abuse was so bad that Layla was forced to seek medical treatment for her injuries at a nearby hospital where a nurse persuaded her to speak to the police and secure a restraining order.
In retaliation an incensed Ahmed contacted the immigration authorities informing them of Layla's presently undocumented immigration status. Upon receiving the tip U.S. Immigration and Customs Enforcement (ICE) agents picked up Layla. She was later detained at a nearby detention center with scores of other immigrants.
Following legal consultation with legal aid attorneys, Layla pursued legal permanent residency also known as a Green Card by filing an application with the immigration requesting relief under the Violence Against Women Act (VAWA). Indeed, VAWA provides that a battered immigrant spouse (like Layla) who is married to a U.S. citizen abuser (like Ahmed) may be permitted to legalize her status in immigration court.
To do so, however, Layla must prove that she was in fact legally married to Ahmed; here, the marriage is a Sharia-compliant one which transpired in Egypt. The immigration judge is prohibited from considering such evidence due to the newly enacted amendment to the New Jersey Constitution which bars even federal courts located in the state from considering or referring to Sharia when adjudicating cases. As a result Layla is confronted with potential deportation to Egypt.
How can the immigration court judge possibly render a just decision regarding Layla's immigration application as a battered spouse without considering or referring to Sharia?
In the meantime, a family friend posts Layla's bond allowing her temporary release from the detention center while her case is litigated. Layla successfully applies for employment authorization to financially support her children as she works to rebuild her life.
Layla responds to a job announcement on Craigslist for a sales representative with a large retail department store. During the interview, the manager disapproves of Layla's Islamic religious attire. Specifically, the supervisor takes issue with Layla's headscarf wrapped securely around her head. So, he advises that she would have to remove her headscarf to secure the position; alternatively, she can work in the backroom where her public exposure to possible clientele is not at issue. Layla left the interview in tears.
Layla pursues an employment discrimination claim against the retailer. In order to prevail in her case under federal and state discrimination laws Layla must prove that her adherence to the hijab is in accordance with a sincerely held religious belief and as such, deserving of accommodation under the law. The court, once again, is prohibited from considering any expert testimony regarding Sharia or Islamic law pursuant to the anti-Sharia ban.
How can the judge render a just decision regarding Layla's employment discrimination claim without considering or referring to Islamic law?
Layla and Ahmed are fictional characters but the the circumstances detailed above are not. While no such legal measure banning consideration of Sharia in state and federal courts has yet been introduced in New Jersey, such legislative initiatives have already passed in Oklahoma, Louisiana and Tennessee.
The legal snapshots depicted above -- divorce, immigration status, employment discrimination -- are common to the courts and the American Muslim community. There are of course many additional scenarios necessitating the courts' consideration of principles of Islamic jurisprudence such as recognizing custody decrees, probating wills and applying international business contracts. Under the anti-Sharia legislative initiatives spreading across the country, state and federal courts will be unable to adjudicate disputes or perform everyday judicial functions as highlighted above.
The degree of disruption caused by any particular anti-Sharia bill or amendment depends primarily on its language. Consider the language of Tennessee bill (SB 1028), as initially introduced, which would have provided that "[t]he knowing adherence to sharia and to foreign sharia authorities is prima facie evidence of an act in support of the overthrow of the United States government and the government of this state...." It would have made the support of any "sharia organization" linked to terrorism a felony punishable "by fine, imprisonment of not less than fifteen (15) years or both."
Under this bill an American Muslim woman's hijab is a smoking gun for terrorism. A Muslim woman's ritual prayer or personal abstention from food and drink during the Islamic holy month of Ramadan would presumably serve as "evidence of an act in support of the overthrow of the United States government..."
This bill would have criminalized the peaceful practice of religion by millions of law abiding Muslims -- men and women -- around the country. Fortunately, this version of the bill failed but another anti-Sharia law passed in Tennessee.
Anti-Sharia laws also stigmatize the Muslim community as well as the precepts of Islam. This is because so-called anti-Sharia laws embody official state government condemnation of Islam as a threat, thereby causing Muslims to become outcasts. Such laws render Muslims inept players within the political arena. It achieves this in violation of the U.S. Constitution.
It is worth noting that the Bill of Rights protects certain individual rights -- including the freedom to worship freely -- from being taken away by the will of the majority. Our nation was in fact founded by men and women who fled religious persecution in their native lands with dreams and hopes of a more religiously tolerant tomorrow.
Today, more than 24 states have seen proposed laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of an entire body of law or doctrine of a particular religion. While the specific language of these legislative initiatives may vary, the intent is uniformly informed by anti-Muslim hate and the result is un-American.
Engy Abdelkader is a Legal Fellow with the Institute for Social Policy and Understanding and a Board Member of KARAMAH: Muslim Women Lawyers for Human Rights based in Washington, D.C. (A version of this article was originally published by KARAMAH as part of a larger symposium).