The Bogus Threat from Shariah Law 

In the 19th century, Catholicism was regarded by many people in this country as thoroughly incompatible with Americanism. They saw it as a hostile foreign element that would subvert democracy. Today, a majority of the justices on the Supreme Court are Catholic, and they are taken to be as American as Mountain Dew.

We've come a long way in religious tolerance. Or maybe not. The belief that Catholics are irredeemably alien and disloyal has given way to the fear that Muslims pose a mortal threat to our way of life.

That distrust is behind a push in state legislatures to forbid courts from applying Islamic Shariah law in any case. Arizona, Tennessee, Louisiana and Oklahoma have passed these bans, though the Oklahoma law was ruled unconstitutional by a federal appeals court.

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Fears of ‘Creeping Sharia'

On May 7, the Kansas House voted unanimously in favor of a bill barring judges and government agencies from basing decisions on sharia or other "foreign" legal systems. Four days later, the Senate voted 33 to 3 in favor of the measure, which was then carried through the capitol building, past John Steuart Curry's famous painting of John Brown, to the office of Governor Sam Brownback, who signed it into law. This bill is only the latest manifestation of the growing anti-sharia movement in this country, which endangers our national security by alienating loyal Muslim citizens and assaults religious liberty by putting contracts with a religious motivation on an unequal footing with contracts that have no religious motivation.

Kansas's new law forbids courts and agencies to respect contracts drawn up under "any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals" if the legal system does not grant the same "fundamental liberties, rights and privileges granted under the United States and Kansas constitutions."

Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these "foreign" legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia - but is otherwise perfectly legal - would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights. But in that case, as Professor Douglas Laycock of the University of Virginia Law School has argued, the law is meaningless, for courts will not tolerate or enforce violations of constitutional rights in any case. 

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