What does "banning Sharia" mean? It can't really mean modifying a constitution in some way that would prohibit any law that mirrors a law in Islamic texts. But what could it mean? The phrase itself doesn't seem to convey anything meaningful.
 

Ok, seriously, just as a matter of how words are defined, how can such a large fraction of the population, perhaps a majority, certainly a plurality, be defined as "extremist"? What's your objective reference point for deciding that? Your own opinions?

Looking out across the world, at the various majority Islamic countries, I don't think it's so irrational to believe that there's something about Islam that isn't compatible with modern liberal democracy. Which of those states would you chose to live in, as a non-Muslim? The ones where you wouldn't officially be a second class citizen, you'd unofficially be one. These are nations where slavery is still practiced, where rape victims are executed, gays are killed, converting to another religion carries the death sentence.

That's Sharia. It doesn't seem to be doing much evolving, or maybe it is, and ISIS is the result.

Oh, and I used to live near Dearborn, or "Dearbornistan", as we called it. If that's your proof that Islam is innocuous, you need to look again. Peaceful protesters being stoned, mosques recruiting fighters for ISIS. It's not exactly an advertisement for Islam being harmless.
 

Did you actually read Mr. Moosa's article that you linked to? Wouldn't a non-Muslim reading that article reasonably conclude (without any "hysteria" or "exaggeration") that orthodox Islamic institutions (mosques and madrassas) teach extremely dangerous ideas? Wouldn't they reasonably fear people who advocate or follow sharia law?

I am sure there are those that would take these "legitimate concerns" and exaggerate them, deliberately or out of ignorance, in one way or another. I doubt you could find any movement or set of social/political attitudes where that is not the case. But if Mr. Moosa's article represents the unexaggerated view, I think most Americans would find it highly alarming, if not hysteria-inducing.
 

Here are some random thoughts on the post and some of the comments:

1. There have been anti-Catholicism movements and anti-Judaism movements in America over the years, based upon fears of once persecuted religious groups that made new lives in America. As the latter group gained political power, protective movements against the perceived threats of Catholics and Jews developed. Some European groups were claimed to be non-whites, including the Irish and "dark-whites" from Mediterranean nations (many being Catholics). And as Catholics gained political power in America, a Father Coughlin surfaced with anii-Semetic and fascist screeds. Now the Muslims.

2. Brett's reference to "Dearbornistan" is a reminder that his youth was spent in a racist region of Northern Michigan that had problems with Blacks who had migrated to Detroit. Perhaps this led to Brett's migration to the Deep South.

3. Orthodox institutions other than Muslim can be problematic in similar ways that seem to concern mls.

4. Xenophobia is racial.
 

But beheadingophobia isn't racial. "Phobia" implies an *irrational* fear, while Islam really does lead to people being beheaded.

I think there's something about multiculturalism that rots a person's brain, makes it impossible for them to see what's right in front of their face, if it is something that implies one culture might be better or worse than another. So a convert to Islam running around yelling 'Allahu Akbar!' and shooting people gets recorded as "workplace violence". Esentially every Islamic country being a tyranny is just coincidence. And polls showing ever lower opinions of Islam is just predjudice, not a rational response to mounting evidence.

Wake up and smell the coffee before you're forced to decide between dhimitude or death.
 

But beheadingophobia isn't racial.
# posted by Blogger Brett : 9:28 AM

When the person who has beheadingaphobia is 10,000 miles away from any beheadings, there is a very good chance (100%) that it's racially motivated.
 

And I want to maintain that distance. Andrew would evidently define a desire to do that as "hysteria".
 

And I want to maintain that distance. Andrew would evidently define a desire to do that as "hysteria".
# posted by Blogger Brett : 9:59 AM

The fact that you have any doubt that the distance will be maintained is definitely hysteria.


 

The morally equivalent nonsense offered in the ABA position paper opposing laws prohibiting the enforcement of Sharia is a perfect example of why I do not belong that organization.

Sharia is a religious law meant to enforce the commandments of Allah made in the Quran and is enforced by religious authorities. Here is the Islamic Supreme Council of America's rather favorable description of Sharia, which omits many of its more barbaric applications like stoning, amputation, honor killings and forced female circumcision:

http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/52-understanding-islamic-law.html

At minimum, enforcement of Sharia violates the Free Exercise, Establishment and Due Process Clauses of the Constitution, as well as the Eighth Amendment barring cruel and unusual punishments. Thus, I am unsure how democratically enacted laws prohibiting enforcement of an unconstitutional body of religious law are themselves unconstitutional.

I could accept the argument that the laws prohibiting Sharia were unfairly singling out Islam if the enacting states were ignoring other faiths enforcing their medieval religious laws. However, Sharia is pretty much the only game in town.

The idea that laws prohibiting Sharia represent some sort of mass hysteria is an interesting idea in view of the long line of post-Lemon cases attempting to erect a wall between (the Christian) church and state. Somehow, I doubt that the ABA or Professor Burt would come out against a law barring a Catholic Inquisition to enforce that faith.
 

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Brett's first comment is interesting.

"Extremist" to me includes belief in extreme things. For instance, if 80% of a certain country beliefs child sacrifice is acceptable, it would be "extremist" as that word can be rightly applied.

He also notes there is "something about Islam" that can conflict with modern liberal democracy. The OP notes "I detail how legitimate concerns about modern day Islam" of just that type. There are lots of Muslims that find things like "slavery is still practiced, where rape victims are executed, gays are killed, converting to another religion carries the death sentence" a problem. They practice a form of Islam that reject such things. Some Muslim nations have issues, to cite the OP regarding "women rights," but to cite one, Pakistan had a woman President long before the U.S. did. (I gather we will eventually)

There is nothing specific about Islam that would warrant those things. After all, slavery was found in this country. The death penalty can be applied to a range of things using Jewish law & Israel at this moment doesn't allow interfaith marriages. They reflect as does things like FGM a matter of local cultural norms more than something that Islam itself compels. "Sharia law" doesn't compel it any more than Christian law necessarily "compels" women to submit to their husbands. At least, such has been the understanding of lots of Muslims and Muslim scholars themselves.

And Shag's #3 is on point. The book itself covers various points in history. The concern about radical Islam and radical movements AS A WHOLE ("kill a gay" bills get support from certain radical Christians, e.g.) is not outrageous. It is the lack of perspective about it that is a problem.

This goes to the "banning Sharia law" business, which people like Eugene Volokh have covered in the past. As he and others note, the use of other law in various contexts, such as in dealing with marital and property disputes, shouldn't be a problem. Other times Jewish law is used etc. Singling out Sharia law there is gratuitous and a 1A / equal protection process. In each case, such law would be applied to avoid violating American norms.
 

"There is nothing specific about Islam that would warrant those things."

Might be more accurate to say that there's nothing "exclusive to" Islam that would warrant those things. Because there IS something specific: Islam seems to reject change to it's doctrines more effectively than other religions. (Perhaps because translation is an opportunity to sneak reforms in, and the Koran isn't supposed to be translated.) When you combine that with being founded by a murderous tyrant, (Who was, per Islam's tennents, the perfect man.) it tends to cause nasty results.

Other traditions can, demonstrably, be consistent with a lot of evil practices. Islam pretty directly mandates them. This doesn't necessarily stop a Muslim from being a good neighbor, but acts as a kind of gravitational force towards what most societies now regard as evil. So that the isolated Muslim doesn't tend to be too bad, being influenced by the mores of the society he's imbeded in, but as they become a larger fraction of the population, they tend to revert back to more Islamic behavior. And we see in essentially all the majority Muslim states, that's not at all nice behavior.

And, by the way, polls of Muslims even in the West show high levels of support for ISIS. Small wonder that mosques frequently become recruiting centers for Islamic terrorism.

I sometimes get the impression that if there were a revival of Thugee, it would find it's defenders. You really do have to judge a religion by the way it's adherents act, especially when they're not isolated among people holding a different faith.
 

"Islam seems to reject change to it's doctrines more effectively than other religions."

Christian beliefs had pretty long staying power. "Seems" (so subjective) to me that the issue goes beyond the religion itself. For instance, when Muslims grow up in nations like ours, I don't see much change in respect to how they adapt to liberal institutions. Consider how a conservative fundamental view of Christianity still thrives in this country, for which is would seem to be hard soil to do so. But, it quite "effectively" does so as shown, e.g., by over 1/3 by some counts opposing evolution on largely religious grounds.

"mores of the society"

This would suggest the dangers of extremist Judaism in Israel and other religions in other countries that have breed modern terrorism. What Islam specifically as compared to other religions brings is unclear. I would balance the problems it has with some of the positives. For instance, unlike Roman Catholicism, there isn't really a final arbitrator of Muslim thought. Traditionally, there were something like four different legal traditions & a greater opening of new interpretations.

"pretty directly mandates"

Somehow loads of Muslims disagree. Your view of what Islam mandates, with respect, should be taken with more salt than your view of what the U.S. Constitution does. Which warrants some seasoning too.

"by the way it's adherents act"

Christians and Jews have a lot to answer to there, then.


 

You really do have to judge a religion by the way it's adherents act
# posted by Blogger Brett : 12:19 PM

Are you referring to the invasion of Iraq or the torture practices of the VERY Christian Cheney/Bush regime?
 

ETA: My comment about people growing up Muslim here was in reference to comparing them with other newcomers coming from places or traditions with conservative aspects.

The basic lesson is to look at things as whole. Thus, e.g., people from various religion traditions support (a vague word especially when it doesn't involve doing anything directly) certain horrible groups. ISIS is supported for various reasons, including on a misguided ground that is a resistance organization to corrupt locals and foreign controls. What "Islam" has to do with this is unclear except that the region has a high number of Muslims so that would logically correlate.
 

Even if we stipulated that Islam is the one true faith, all Muslims are terrific people,and every mandate enforced under Sharia is an undeniable good, enforcing Sharia would still violate the Establishment, Free Exercise, and Due Process Clauses of the Constitution.
 

"What "Islam" has to do with this is unclear except that" the first I in ISIS stands for "Islamic".

Al Jazeera polls are showing supermajorities in favor of ISIS among Muslims all through the Middle East. The only reason they're not in power everywhere is that those nations aren't at all democratic.

This level of denial that ISIS has anything to do with Islam, or Islam anything to do with Muslim majority countries being such awful places, is absurd. What's the claim here, that religion can only ever have positive effects? The moment they're negative, you have to deny they have anything to do with it?
 

Not denying that ISIS "has anything to do with Islam" any more than that anti-abortion violence has "nothing to do with Christianity," or rather a certain understanding of it. It is what specifically about Islam that leads to support.

ISIS rose in a place where radical Islam provides a means to an end. Other places, other religions are used -- see, e.g., use of radical Judaism in settlements or Christianity being used to support "kill the gay" legislation in certain places.

Don't know what specifically about Islam makes Muslim countries being awful when so many other places that are not Muslim are awful too. Latin American countries over the years, e.g., were corrupt dictatorships. They are Christian. Other countries that are atheistic also are horrible.

What is specific about Islam, all things being equal, that is different? Christianity and Judaism repeatedly were used for bad ends. At the very end you reference "religion" itself. Great! No, your strawman isn't the "claim." Hint there being repeatedly a recognition of both good and bad.


 

The only way Sharia is basically going to be "enforced" in this country is as noted in cases like contracts or marital settlements where the parties have privately agreed to use Sharia law. It also might arise to in application of international law to the degree Sharia is relevant. This along with usage of other religions for that purpose has not been held to be a constitutional violation.
 

Joe, think about this: There are predominantly Christian nations that are free, there are predominantly Christian nations that are tyrannies. There's a predominantly Jewish nation, pretty free, especially given the neighborhood.

Where's the Muslim liberal democracy? Come on, I don't demand they all be free, just one, to prove that it's possible. One majority Muslim liberal democracy. Where is it?

The problem here is that Islam is like some kind of fossil religion, preserved largely unchanged from an era when things like slavery, and slaughtering anybody who got in your way, were normal, accepted practices. And the other religions changed, while Islam stayed the same. And Islam rejects separation of church and state, as a matter of doctrine.

If you're not a democratic nation, you can hold out to some degree, but if you're a democracy, and enough of your population is Muslim, that's it, game over.

So, sure, you can point to the Crusades, (especially if you ignore that they were trying to reverse previous Islamic agression.) but we're living today, not in the middle ages.

Denial, that's what I see here. And denial of a sort that's getting less and less accepted by the general population, who are sick of having to pretend Islam is a "religion of peace", that jihad isn't war on unbelievers, that all the terrorism has nothing to do with the religion of the people doing it, who insist it does.
 

Joe:

I am unsure to what extent Sharia could be enforced in either family law or contract law without conflicting with the statute or our Constitution.

Sharia generally prohibits interest while our law will enforce contractual interest provisions and grant statutory interest on damages.

Divorce under Sharia may actually have fewer duties than are imposed under our statutes.

Sharia would not deny a father parental rights for beating his wife and children. Our law can and does.
 

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This might be a semi-interesting discussion if we define some parameters. I assume that we all agree that human nature is flawed (infected by original sin, some would say) and that those flaws will be evidenced in any group of people, whether they are defined by ethnicity, religion, nationality, ideology, or whatever. Thus, showing that there are some bad statements or actions by members of any group (whether they be Muslims, Progressives, Libertarians, Nazis, Mexicans or Wall Street bankers) does not in itself prove that the group is bad or any worse than any other group.

At the same time, I assume that we all agree that this fact doesn’t mean it is impossible to make normative judgments about groups, at least if those groups are defined by the things they do or believe, rather than by immutable characteristics such as race or ethnicity. Certainly most of the people who comment here seem to have no trouble making such judgments.

Finally, we might be able to agree that there is such a thing as confirmation bias, in which the flaws evident in the groups you already don’t like are taken as evidence supporting the normative judgment you have already made, while the same flaws evidenced in groups you are part of or which you view more sympathetically for whatever reason are viewed as merely isolated examples of human failings.

Now Mr. Burt (to whom I was addressing my earlier comment) is saying that there is an “anti-Sharia movement” which is characterized by “extremism” and “hysteria.” These are just as much normative judgments as the judgments that the anti-Sharia movement is making about Islam. Moreover, he is making these normative judgments about the “anti-Sharia movement” as a whole, not merely critiquing particular assertions or policy proposals (as Professor Volokh has done with respect to anti-Sharia laws).

It seems to me that anyone who read and believes the assertions made Moosa’s article would be well-justified in concluding that Islam, in its current practices and beliefs (as distinguished from its ultimate theological validity, which Moosa accepts), is quite “scary,” to use the term that Burt applies to the anti-Sharia movement. And that such a person would rationally seek to protect themselves and their community against the things that Moosa describes. What I find interesting is that Burt links to Moosa’s article without any evident consideration of this possibility.

Put another way, I wonder whether there is any analytical rigor to Burt’s position, or, if you will excuse the expression, he is just Bartbuster with a book deal.

 

Muslim countries are in a region that overall are not liberal democracies. Israel is an outlier; it was created by outsiders based in liberal democracies to begin with. The value of these countries being Christian given 20th Century events alone is questionable. It is that Israel was created by those already a product of developed countries, who already went through their long struggles to modernity as free nations.

Consider India and Pakistan. One is Muslim; one is not. What exactly makes the one being Muslim, as compared to other factors, more authoritative? There are various majority Muslim countries that are at least developing liberal democracies. Turkey would be the easiest case. https://en.wikipedia.org/wiki/Muslim_world How Bosnia and Herzegovina, e.g., because of its Muslim population, was a harder case than Croatia on that grown alone is unclear.

Islam did not "stay the same." There are loads of Muslims in this country and beyond that don't have Middle Ages values. OTOH, over 1/3 of CHRISTIANS in this country think creationism is likely true. Christians, Jews and others also support war and other bad things, not just in the times of the Crusades. When Muslim countries can have women presidents, more women legislators than many non-Muslim countries, support peaceful change etc. while violence is repeatedly supported in the U.S. by non-Muslims up to today (not just during the Crusades), this generalizing is a too much.

Again, I would look at the situation as a whole. The book appears to do the same covering various periods and movements etc. The summary is extended and is more than personal potshots or a brief comment. The suggestion "just Bartbuster with a book deal" is a tad silly though done quite verbosely.

====

As to the other thing, Eugene Volokh over at his blog and others have discussed the use of the law of various religions in various contexts. It's a specialized matter that BP very well might not be aware of as other lawyers would not be familiar with the sort of stuff he does. But, it's common practice and upheld by the courts. As with other private agreements, religiously based agreements cannot violate public policy. But, e.g., interest is not compelled except by law in certain cases. I can lend a person money without interest, if desired. And, given interest has certain benefits, Sharia law has generally found workarounds there that cover more than the base amount.

 

"Where's the Muslim liberal democracy? "

Perhaps not liberal democracy, but Freedom House rates Indonesia, Turkey and Malaysia as 'partly free.' Considering there's roughly 50 countries rated the worse 'not free' I would think these should give some pause to universal denunciations.
 

Bart,

As joe has mentioned, libertarian legal scholar Eugene Volokh has said quite a bit about how courts use religious law, including Sharia, in many contexts, and how that use is longstanding and in keeping with our legal values and traditions.

http://www.law.ou.edu/sites/default/files/files/FACULTY/01%20volokh-religion%20article%20blu4.pdf

The Sharia law ban that was struck down by the 10th Circuit was done so because it singled out Islamic law out of all of these examples to be forbidden. The 10th Circuit decision lays it out

http://www.ca10.uscourts.gov/opinions/10/10-6273.pdf
 

"I assume that we all agree that this fact doesn’t mean it is impossible to make normative judgments about groups, at least if those groups are defined by the things they do or believe"

I for one don't share that view. There are millions of, say, conservatives, liberals, libertarians. I wouldn't take any generalizing normative statement about any of them as saying much. This goes all the more for a group like Muslims that has over 1 billion people associated with it.

"Burt links to Moosa’s article"

Burt links to the ABA report which links to Moosa's article. And the report refers to it to make the point that there are diverse views among Muslims about what Islam is and should be about (Moosa is, after all, a Muslim).
 

I assume that we all agree that this fact doesn’t mean it is impossible to make normative judgments about groups, at least if those groups are defined by the things they do or believe

To supplement MW's point, the larger the group, the less valid this reasoning becomes. It might well be fair when applied to small circle of people (say, Westboro Baptist), but becomes implausible altogether when applied to a population of a billion. There's too much variation in the larger group to make generalizations at that level.
 

Even thought mls bandied about the word "normative" 3 or more times in his recent post, it's not clear that he understands its meaning as it might pertain to this thread as it progresses. It seems that many comments are aimed at Muslims as "THE OTHER DU JOUR."

By the Bybee [expletives deleted], I read the ABA report and it seems to make sense. Does anyone else who has read it contest the legal analysis and perhaps might point our portions contested?
 

Shag: I read the ABA report and it seems to make sense. Does anyone else who has read it contest the legal analysis and perhaps might point our portions contested?

The ABA is offering a political document, not a legal analysis. They are simultaneously arguing that unspecified legal guarantees in our Constitution and elsewhere will prevent Sharia from abridging our liberties, legal rights and responsibilities, but state laws enforcing those guarantees somehow violate our Constitution.

The Supremacy Clause argument is moot because they cite no treaties which enforce Sharia law in the United States.

The Contract Clause argument is weak because, as the ABA admits, contract provisions contrary to public policy are unenforceable and public policy is set by laws such as the prohibitions on enforcing Sharia. State courts can resolve probate, property and family matters under existing state law.

The Free Exercise argument is a red herring. ABA is erroneously equating religious acts or rituals with probate, property and contract matters. For example, what court is going to allow you to ignore state property law on the grounds that you are engaging in a religious act by transferring the property at issue?

The following nonsensical circular argument pretty much summarizes the theme of this political document:

Provisions like the one in Oklahoma or Tennessee’s SB 1028 that single out Sharia law are the most clearly unconstitutional; because they are not neutral on their face, they will only pass constitutional scrutiny if they are “justified by a compelling interest and narrowly tailored to advance that interest.”33 This will be a difficult case for states to make, because as demonstrated in Section III, the interests these provisions are designed to protect are already more than adequately covered through existing law.

Prohibiting enforcement of Sharia law is a violation of Free Exercise because the law already prohibits the requirements of Sharia???
 

Our own MRO's (micro 'rhoidless one) analysis of the ABA report confirms why he is the top legal dog DUI defense counsel in his isolated mountaintop community.

By the Bybee [expletives deleted], the free exercise clause of the 1st A applies to Muslim religious practices here in America, even in Brett's "Dearbornistan." I wonder if our own MRO read the entire report, especially the entire first Section III. To what extent is Sharia law, or portions thereof, intertwined with religious practice?

What's obvious is that our own MRO's "THE OTHER DU JOUR" are Muslims, at least today.
 

MW- I am not sure it matters, but I believe the block quote in the OP is Burt quoting himself. It is not from the ABA report.

Again, I am wondering whether anyone read Moosa's article. My point is that even if one made no criticism of Islam other than what he states there, it amounts to an extremely harsh criticism of Islamic orthodoxy (not all Muslims, but a majority of Islam's religious leaders). I have no problem with saying that those who make similar criticisms, particularly if they are not Muslims, should avoid over-generalizing and should acknowledge that not all Muslims subscribe to these pernicious ideas. But based on Burt's post, it seems like the whole point of his book is to generalize about the "extremism" and "hysteria" of the majority of Americans who have negative views of Islam.

No one has yet explained why this is not a glaring contradiction.
 

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"To supplement MW's point, the larger the group, the less valid this reasoning becomes. It might well be fair when applied to small circle of people (say, Westboro Baptist), but becomes implausible altogether when applied to a population of a billion. There's too much variation in the larger group to make generalizations at that level."

Precisely wrong.

The mistake is assuming that generalizations tell you anything about the individual group member or small group. To use your example, Westboro Baptist is not terribly representative of Baptists in general. But, law of large numbers, generalizations, if fact based, actually become more valid as group size increases.

So, encountering any random Muslim, even a valid generalization tells you nothing worth knowing, because a sample of 1 isn't at all likely to be representative.

But, a billion Muslims? In agregate, they will very reliably act like average Muslims. All the individual variation will average out. If 0.1% of average Muslims are terrorists, a billion Muslims gives you a million terrorists. If 60% of average Muslims favor executing apostates, it's anybody's guess what opinion will be in a small community of Muslims, but in a large community the apostate has a target on his back.

It's only when you're dealing with large numbers of people in agregate that generalizations are actually of any use. That's WHEN they become valid. If they're fact based.

The problem for people labeling fear of Islam hysterical, is that it's terribly, horribly, fact based. And anybody not blinded my multiculturalism can see that.
 

Bart,

You've been given the tools to understand this, you just don't seem to be availing yourself of them. If you're not inclined to read Professor Volokh's article about how courts use religious law, including Sharia, in many contexts, and how that use is longstanding and in keeping with our legal values and traditions, then I'm happy to provide a more brief summary of his ideas here:

http://volokh.com/2010/11/26/why-american-courts-should-sometimes-consider-islamic-court-rulings-and-islamic-law/

Since our courts have long and currently used religious law in many contexts, the singling out of one type of such law for prohibition is a pretty clear violation of the First Amendment.
 

mls-I think you're correct about the sourcing there.

"whether anyone read Moosa's article"

I did. I read it as an article by an Islamic scholar about how Muslim orthodoxy is not giving a real alternative relevant to the modern world to Islamic strains of thought like that manifest in ISIS. I think it was referred to because it's very existence makes the author's point that like any other faith 'Islam' is not a fixed thing that is 'inherently' anything. It might be at a state where a current orthodoxy has troubling elements to it (the author acknowledges this), but that orthodoxy is something that is not 'inherent' (otherwise this assumedly learned Islamic scholar would not be arguing for another view) and something that doesn't necessarily match with the living experience of many varied Muslim communities around the globe.

This speaks to something important I think. The author himself acknowledges 'legitimate concerns' re: Islam. But his point is, how should we respond to these? I think his answer is: not with the extremism that tries something like a blanket ban or denunciation of the faith since such would 1. be contrary to our own values of equality, tolerance and non-discrimination and 2. would be silly because even to the extent there is a troubling orthodoxy afoot these systems are not static things but ones that may very well change.

I'd add to this another concern: from what I've read about ISIS and other radical Islamist groups, their main recruiting tactic is to try to convince Muslims that the people and governments of the West are anti-Islam in a general sense and therefore these potential recruits must 'pick a side.' Ironically, people like Brett echo and fulfill ISIS' recruitment lines, increasing the very danger they think they're acting against! To the extent that radical Islam, or even orthodox Islam, presents threatening aspects, the wise response will be not one mired in the extremes of blanket generalizations and bans but in a more intelligently measured one.
 

"If 0.1% of average Muslims are terrorists, a billion Muslims gives you a million terrorists. If 60% of average Muslims favor executing apostates, it's anybody's guess what opinion will be in a small community of Muslims, but in a large community the apostate has a target on his back."

It would be quite silly to treat 99.8% of the group in a way meant to target the .1, even if the .1 represents a threat of a million. There has to be a more focused way to approach that issue.

If we're in a fight against a version of Islam that has anywhere from significant minority to majority but not total support then it's critical to oppose it in a way that doesn't turn off any Muslim that is not part of that. Ideally, we want to strengthen the hand and position of Muslims who do not align themselves with that; the worst thing to do would be to push them into that. Given this, I can't for the world see why people who say they are dedicated to fighting what they see as the evils of Islamic movements would go and provide those movements with the fodder they need by attacking Islam broadly, necessarily lumping in what could be either allies or at the least not enemies. It's like you want the enemy column to be bigger, to include everyone nominally associated with Islam. That would make sense if, for examples, you needed a 'boogeyman' to rail against or justify certain policies, but it doesn't make sense if you're really interested in undercutting this threat. There's a reason why the Bush administration, which wasn't awash in multicultural moral relativism or lacking in Christian affinity and resolve, took careful pains to distinguish in its pronouncements between 'radical Islam' and a more hopeful view of an Islamic tradition that we could live peaceably with. It was sound strategy, the kind you get when you decide to eschew the generalizations that accompany fear and extremism for a more prudent and effective approach.
 

This book is about American history. This post centers on Muslims in America and Sharia law that some think they may seek to impose on the rest of us. But many of the commenters are focused on Muslims and Sharia law beyond America, perhaps pushing for a Muslim Enlightenment. Muslims are these commenters' current "THE OTHER DU JOUR," perhaps with the current GOP "sweet 16 + 1" to be augmented with Mexicans, Blacks, etc.

Moosa's article was published on August 21st, months after Burt's book was published. The article sets forth the views of a Muslim in America. The book and the post address American reactions to Muslims in America. Some commenters "profile" American Muslims. (I recall as a kid growing up in the 1930s, '40s the expression "The only good Indian is a dead Indian," fostered by cowboy movies of the time. Since then other ethnics have been substituted for "Indian." Which perhaps proves the point of the title of Burt's book.
 

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Mr. W:

I appreciate your link to the Volokh post. Volokh cited to two cases, one where a state court held that a foreign child custody order conformed with the state best interests law and another where the state court enforced a marriage entered into through a Jordanian government court which applied some elements of Sharia. As Volokh noted, both courts were careful to couch their opinions so that they were not enforcing religious law.

I am unsure what these cases have to do with the questions of whether state laws banning Sharia are constitutional or desirable policy.

Indeed, I doubt the outcomes of the two cited cases would have changed under such prohibitions since the opinions avoided using Sharia religious law as the basis for their decisions.
 

Brett, your point makes no sense to me. If .1% of Muslims are terrorists (the actual number is at least an order of magnitude smaller), then labeling ALL Muslims as terrorists would be the worst form of stereotyping and definitionally inaccurate. By contrast, labeling Al Qaeda as "terrorist" makes perfect sense: the small group has a percentage of terrorists near 100.

The mistake you're making is attributing the actions of a small minority to the larger group. Because the larger group possesses much more variation (as a matter of simple math), the generalization fails.

It's true that we can characterize the larger group: they're all "Muslims". That's too high a level of generalization to do any good. They don't share other attributes such as common ethnic background, culture, language, gender, etc. There's no defined set of "Muslim" beliefs as there is for, say, Catholics, so we can't even conclude that "Muslims" share a common set of beliefs about their religion (again, except at a very high, and therefore useless, level of generality).
 

Bart,

As Volokh describes the latter case:

"Marie Aqel (an American citizen) went to Kentucky court and claimed that her supposed marriage to Mohammad Aqel (a Jordanian citizen who is a permanent resident of the U.S.) should be annulled. The marriage, Marie said, was never valid, because Mohammad was still married to his first (Jordanian) wife when he tried to marry Marie. Mohammad said no: He had gotten a divorce from his first wife in a Jordanian court before marrying Marie in Kentucky. Marie replied: That divorce was not yet final at the time of the marriage, because under the relevant Jordanian law the divorce isn’t effective until three months have elapsed.

The Kentucky court, applying long-established Kentucky choice-of-law rules, considered the Jordanian divorce decree (which came from a Jordanian Sharia court). It determined how the divorce would be understood under Jordanian Sharia law, concluding that the divorce was effective when the decree was issued, even though it could be revoked by the husband within three months after the decree. Because of this, Mohammad Aqel was unmarried under American law (which in this respect refers to Jordanian law, which in turn requires application of Sharia law) when he married Marie."

The case turned on the fact that "under Jordanian Sharia law"..."the divorce was effective when the decree was issued" and therefore "Aqel was unmarried under American law (which in this respect refers to Jordanian law, which in turn requires application of Sharia law) when he married Marie."

The Oklahoma amendment struck down by the 10th stated "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."

Under the Oklahoma amendment in question the Court would be prohibited from engaging in the kind of analysis it used in this case, a kind which, if you refer to Professor Volokh's longer law review article I posted earlier, is used in many contexts in our nation's judicial history.
 

"There's no defined set of "Muslim" beliefs as there is for, say, Catholics"

Not to pick a nit, but after reading the recent Pew survey of US Catholics I'd note the considerable variation among what Catholics belief. To be sure, mls mentioned generalizing about belief groups by focusing on the beliefs themselves and you, Mark, were just playing on his field in this (so to speak), but while the Catholic church sets out to uniformly define its beliefs, that seems an useless abstraction pragmatically, (akin to 'law on the books' vs. 'law in action' to me) given that you'd be hard pressed, upon meeting any US Catholic, to guess what their ideas are about, say, the sinfulness of contraception, single parenthood, divorce, etc. it seems problematic to even generalize about what 'Catholics believe.'
 

Mr. W:

You omitted Volokh's money quote concerning the KY case:

There was no violation of the Bill of Rights, or imposition of religious law, in that. The one possible objection would have been that American secular courts can’t determine what Sharia law actually means, since that would require a theological decision about the true meaning of Islamic principles. But I take it that in this context the court was not trying to determine “true Sharia” but simply trying to figure out what effect the divorce decree would have had in Jordanian courts — a predictive judgment, not a theological one, and much the same predictive judgment as if a court were trying to figure out the meaning under Swedish law of a Swedish divorce decree.

I am limiting my comments to statutes which bar enforcement of Sharia religious law. The OK amendment encompassed all international law, which would be problematic.


 

Mark, the problem is that Mr. Wiskas' 'moderate' Muslims ARE the problem. No nation with a Muslim majority is free. Every nation with a significant Muslim minority ends up plagued with terrorism. ISIS is widely popular in the Middle East.

That we're in a pickle if world-wide Islam decides we're their enemy, matters not a bit if world-wide Islam has already decided they're OUR enemy. It just means that we don't get a choice about being in a pickle.

That's frequently the case when the other guy is the agressor; You don't have a choice of whether to have a war, just whether to surrender or fight.

Every system has the problem it's ideally suited to fail to solve. For liberal democracy, a popular religion that rejects liberal democracy might just be it. This, I think, is civilization's challenge in our generation.
 

Just as there are cafeteria Catholics, there may be mezzanine Muslims.

Mostly liberal lunch today, some progressive. Play nice.
 

Not to pick a nit, but after reading the recent Pew survey of US Catholics I'd note the considerable variation among what Catholics belief.

True enough -- not all individual Catholics abide by Church doctrine on all points. My only point was that the Church at least claims to set doctrine which is binding on all Catholics. No Muslim (or Protestant or Jewish or Buddhist, etc.) authority makes any such claim. We therefore can't accurately say that "Jews" believe X; some do, some don't.

Brett, let's assume we are in a war with Islam. I don't think so, but I'll play along for the sake of argument. In that case, as MW already noted, our strategy should be one of divide and conquer. We can't fight a billion people spread out over half the earth, and we shouldn't want to. We should be doing our absolute best to minimize the militants and provide incentives for the rest not to join them. Purely as a tactical matter, the Samuel Huntington "clash of civilizations" argument is absolutely terrible rhetoric and worse strategy.

And that's assuming that we ourselves bear no responsibility for the war and disruption we see today in the ME. It would be impossible to ignore our own failings in that respect.
 

The "60%" of "all average Muslims" supporting killing of apostates number popped up during the whole Bill Maher kerfuffle. It seemed more "factoid" than fact then, it still does now. It is passing strange to me that such support doesn't translate to a lot more killing, given there surely are plenty of apostates out there.

But, even when some backwater executes someone as an apostate, there is lots of push-back. Including from the Muslim community. I'm left to wonder just what sort of "support" we have here. Also, are these average Muslims living in the U.S., England and so forth? Are sixty percent of them some sort of fifth column?

Cf. the poll numbers of non-Muslims in this nation that support torture or those elsewhere that support violence in Israel, including not merely polls but election returns. Or, thousands of political prisoners killed by non-Muslims as compared to religious apostates, even in places like Saudi Arabia and Iran. In hard results, the "support" of such actions seem to lean more toward non-Muslims.
 

Bart,

Professor Volokh's quote isn't quite doing what I think you're doing. It's just saying that in following Sharia precepts to solve the case the court can justly say it wasn't primarily intending to follow Sharia law-it was primarily intending to follow international law which, in this case, by choice of the jurisdiction in question, happens to be Sharia.

Consider if you were in law school in a course on comparative legal traditions and you were told to write a 'brief' trying to convince a Sharia court in your hypothetical client's favor. In doing so you'd be following Sharia legal precepts, but of course you're doing it to convince this hypothetical Sharia court and ultimately to pass the class. But none of that changed the fact that your legal analysis used Sharia precepts, it most certainly would. Likewise, while the court in Volokh's example was not setting out to primarily follow Sharia law, it most certainly did follow them in deciding the case. It could say 'we followed them because that's what we predict the court that gave the decree would do' of course, but follow them it nonetheless did. And bans of Sharia law like the Oklahoma one forbid the 'looking to' or 'consider[ation]' of 'the legal precepts of...[s]pecifically...Sharia Law."
 

Mr. W:

I reviewed the KY Court of Appeals decision from the trial court that can be found here:

http://162.114.92.72/COA/2004-CA-001531.pdf

The wife seeking the annulment from the KY trial court assumed that Sharia law as applied by the Jordanian court was enforceable and instead argued that her husband did not comply with that divorce law before marrying her. The issues we are discussing concerning the enforceability of Sharia law in the US were never before the trial court.
 

Bart,

These lines from your very own link seem to negate that conclusion:

"In this appeal, we are asked to interpret and apply Islamic domestic relations law in determining whether
Mohammad’s marriage to Marie"

"We must first determine whether the trial court’s
findings of fact regarding the interpretation of Islamic law
were supported by substantial evidence."
 

Mr. W:

I think you are misunderstanding me. My point was that neither party was challenging the enforceability of Sharia in this case. That issue was not before the court. This is why Volokh noted: "There was no violation of the Bill of Rights, or imposition of religious law, in that."
 

Bart,

I don't want us to talk past each other here. You're using the word 'enforceability of Sharia law. What I'm, and Professor Volokh, are talking about is using precepts of Sharia law to decide cases like this one. Whatever else can be said about that case the quotes I noted make it certain that the trial court and appeals court referred to and used precepts of Sharia law in deciding this case. If you'd like, you could say they enforced Kentucky and US law, which in cases like this call on the Courts to 'consider' and 'look to' the legal precepts of Sharia courts. *This* is what was forbidden by the Oklahoma anti-Sharia law, hence the problem with it.
 

Mr. W:

Unless one of the parties is citing a law prohibiting enforcement of Sharia to vacate some act of Sharia, I suspect that state courts under these laws will continue to approach these exceedingly rare cases the same way the KY court did.

We shall see.
 

Regarding Mark Tushnet's piece, I think Oregon v. Smith was ill-advisedly activist. I say that since "activist" is not in itself wrong.

Anyway, the lower court there narrowly applied a rule to unemployment benefits. The majority in Oregon v. Smith went out of its way to apply a broader question involving criminal law. And, as Souter later noted, its "hybrid rights" exception could apply to the peyote ritual in question.

I'm left to wonder if Prof. Tushnet thinks Shebert v. Verner was wrongly decided.


 

Joe, you might be interested in an excerpt from Mark Tushnet's contribution to a Symposium on religion at:

https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=1993+B.Y.U.L.+Rev.+117&srctype=smi&srcid=3B15&key=a68b8780446d6e764f26d3f52ebc722e

I am not a subscriber to LexisNexis so I do not have ready access to download Tuchnet's paper.
 

I appreciate it and was able to access the article. It defends the Smith rule in ways familiar to me but did not examine Sherbert itself, a case that Justice Stevens (who joined Smith) earlier suggested is a special case of an individual exemption:

"laws intended to provide a benefit to a limited class of otherwise disadvantaged persons should be judged by a different standard than that appropriate for the enforcement of neutral laws of general applicability" [U.S. v. Lee, separate opinion]

I think supporters of Oregon v. Smith have a point -- though as applied it really seems close (a religious ritual is the core of "free exercise") -- but there was a way to avoid forcing the issue. Just treat it as an employment compensation case. The ruling could have still went either way -- drug counselors were involved after all -- but the broader question avoided.

Anyway, the concerns Prof. Tushnet supplies would in various ways apply to RFRA too, especially if "restoration" means going BEYOND pre-Smith and giving religious dissenters if anything MORE protection. I thank Shag over at Dorf on Law for referencing to Tushnet's comments.
 

For those staying home over this long weekend, take a look at The Junto's "Interview: Saul Cornell and the Originalism Debate: at:

http://earlyamericanists.com/2015/09/03/saul-cornell-originalism/#more-12351

For those who do not like to copy and paste, a direct link is available at the Legal History Blog's "Weekend Update" feature. I trust this interview will not create too much hysteria. And those with time should also read Jack Balkin's recent article on OPM, Original Public Meaning (not "Other People's Money" imbedded in my brain before originalism surfaced).
 

This comment has been removed by the author.
 

To end on a more germane note, Religious Clause Blog, which periodically provides a list of worthwhile law articles on religious topics, recently referenced this:

"The Sharia Problem with Sharia Legislation"

It is only 23 pages. Should not be taken as representative, but suggests the complexity of the question. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652896

With that, perhaps we are due for a new thread. Appreciate the guest here opening up comments, something guests generally don't do. Think it was fairly helpful.

 

I read the article Joe referenced. It is much, much more informative than Moosa's OpEd that was to a certain extent anecdotal. The article calls for discussion but perhaps not in this thread. The article references Noah Feldman's NYTimes Magazine article "Why Shariah?" (5/16/08) which I have downloaded and plan to read later today. Perhaps I will have some comments to share. (Thanks once again to Joe.)

Also, I downloaded for reading later today Eric M. Ruben and Saul Cornell's "Firearm Regionalism and Public Carry: Placing Southern Antibellum Case Law in Context." (This is a short 18 pages double spaced. A link is available at the Legal History Blog, with a note of how the paper came to its attention.)
 

Noah Feldman's article is a very good read on Shariah. The printer pfriendly version is 8+ pages with very little white space. It was published in 2008, so a reader has to update the closing section "A Democratic Shariah?" with subsequent events. The history provided by Feldman provides greater detail on Shariah than does the post and Moosa's OpEd. According to Feldman, the pre-modern period for Shariah ended in the early 19th century with changes made in governances of the Ottoman Empire. Both Feldman and the author of the article Joe referenced point to the virtues os Shariah/Sharia during the pre-modern period, each finding fault with the modern period, which had included colonization of many heavily Muslim populated countries/regions. As suggested by Feldman's closing section, the question is whether democratization can come to Shariah/Sharia in Mulsim dominated countries.

But it should be kept in mind that American Muslims may have demonstrated acceptance of democracy with the pre-modern Shariah/Sharia. I haven't read Burt's book, but his "answer" to the question he keeps getting asked set forth in his post seems to indicate such.
 

Thus, I am unsure how democratically enacted laws prohibiting enforcement of an unconstitutional body of religious law are themselves unconstitutional

You might want to let Kim Davis know.
 

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