The Shari’ah Controversy in America:

June 16, 2011 by  


By Waheeduddin Ahmed, Ph.D.

shariah-compliance_imgIslamophobia, as it exists today in America, cannot be assigned to a single cause. It has a variety of causes. Differences in belief systems have little to do with it, since such a chasm would require awareness, which is all but lacking in the general populace. Clash of civilizations is hardly causative in a civic society, where only one civilization prevails. In fact, it is the cultural side of Islam, which arouses prejudice and disapproval on the part of some and suspicion on the part of others.

The second cause is the global political conflicts in which Muslims are seen as occupying the center stage. Incessant news and events depicting individuals committing terrorist acts, with their religion specifically highlighted in the media if they are Muslims, constantly plays on the minds and emotions of the American people. The worst act of terrorism in its history occurred in New York on September 11, 2001. It was carried out by a few foreign miscreants from the Middle East with Muslim names and had roots in the Arab-Israeli conflict. While it shook the world, it sent chills down the spines of the Muslim inhabitants of America. They were hit the hardest just by name association. They walked the streets under suspicious and disdainful eyes and are still struggling to reclaim their rightful place in the American society.

We are living in an era sequential to global communism. The phobia which dominated that era was the fear of the great Bolshevik conspiracy, which would undermine our freedoms and individual liberties. The product of that phobia was the Cold War, generating thousands of nuclear weapons, sufficient to obliterate human race many times over and which gave birth to scores of dictators all over the world, who subjected their countrymen to tyranny and humiliation. The succeeding era would not pass without a phobia to decorate it with.  Islamophobia readily served the purpose. The bogey of the worldwide Islamic khilafa replaced that of the Communist conspiracy and is beginning to inflict the psyche of the American public. If there are any people, who are unaware of this khilafa “conspiracy”, it is the Muslim people themselves.

The Phobia and its Profile: The Mosque Controversies:

Proposals to build mosques to serve the religious needs of Muslims countrywide have brought out deep-rooted prejudices even from the members of the clergy, from California to Wisconsin to New York. Acts of vandalism against the Muslim places of worship such as in Tennessee proliferated. In Sheboygan, Wisconsin a Muslim doctor who owned a store type building proposed to convert the property into a place of worship for hundred or so of Muslims. The place was close to the hospital he worked in. A public hearing brought out some of the patients he had treated and had faith in, who spilled out venom against Islam, a faith they had no knowledge of. It shook the wits out of him and many of the citizens. In Manhattan, Muslims had been praying at Burlington Factory House at Park51 a makeshift mosque for a year before the Cordoba House proposal. On Fridays the congregation at Farah Mosque nearby would spill over on the street for want of sufficient accommodation. It was not a matter of “desecrating” Ground Zero but a matter of dire necessity and equal rights under the constitution. The proposal became such a big controversy that everybody from the president to the governor to the archbishop to the Jewish Defense League weighed in. It was made to look as though the proposed Cordoba House was a monument of Muslim “triumphalism” at Ground Zero.

Ban the Shari’ah Legislations:

The campaign against the Cordoba House project was started in a blog “Stop Islamization of America”, a xenophobic campaign, playing on the aforementioned fears of people, of the perceived impending transformation of the country’s religious face and its cultural profile. This is an outrageous presumption and a wildly imaginary scenario. Exact statistics are lacking but according to a study conducted by the American Jewish Committee there are 2.8million Muslims in America, while many Muslim organizations have been claiming that the total number stood at about six million. This makes the range of percent population to be from 0.9 to 1.9%. The true number may be closer to the lower figure than the higher one. Of the total population, the practicing Muslims may be less than half that number, scattered over a continent and among the population of 308.7 million. What a force for the Islamization of the United States of America!

The force behind this anti-Shari’ah tirade is an Arizona lawyer: David Yerushalmi, a White supremacist, an anti-Islam hate monger and the founder of the “Society of Americans for National Existence (SANE)”. He argues that whites are genetically superior to Blacks.  He wrote: “Some races perform better in sports, some better in mathematical problem solving, some better in language, some better in Western societies and some better in tribal ones.” He urged that the United States must declare war on Islam and all Muslim faithful. This puts him in the same category in hate mongering, as the likes of Meir Kahane, Baruch Goldstein, Daniel Pipes, David Horowitz and Peter Emerson. He had pushed legislation in 2007 to make adherence to Shari’ah a felony, punishable by up to 20 years in prison. Sadly, it is him and the likes of him, who are driving the conservative legislative agenda in this country. He is either the author of or the consultant for most of the anti-Shari’ah bills, which have been introduced. The American legislators, who have been led onto this path by people like Yerushalmi, in the name of patriotism, should realize that their actions are mutilating the values and the principles on which this country was founded.

A majority of the anti-Shari’ah bills is considered to be, in the main, innocuous and inconsequential, emotive rather than practical, save SB1028, the State of Tennessee bill as originally proposed, which would have dangerously violated the basic human rights of Muslims, guaranteed in the constitution, by criminalizing the day to day acts of worship. The other acts of legislation have been rightly branded as: “A Solution in Search of Problem”. However, there are some very complex legal implications, which cannot be overlooked.

Shari’ah, meaning “the way” or “the path” encompasses many disciplines such as ritual worship, moral principles, trade, charity, dietary rules, monetary transactions, matrimony, inheritance as well as criminal law. Many of the Shari’ah rules have been absorbed into cultural norms and adherence to them is almost subconscious, such as the dietary rules. Although ritual worship is an essential part of religion, some Muslims pray and some don’t and those who pray would do so even under the shadow of a guillotine. The criminal law (the Shari’ah penal code) is in abeyance in a majority of the Muslim countries, as secular criminal laws have taken its place. The laws of marriages, divorce and inheritance are in general followed, except that polygamy is now obsolescent among the common people. Most of the laws of Shari’ah, including the penal code, bear striking similarity to the laws of the Old Testament (Halacha) and those followed in early Christian communities. Reformist movements in Judaism and the Church in Christianity have amended those laws but since in Islam there is no Church, Pope or “reform” authority, the Shari’ah has remained immutable, except where the rules are amenable to ijtehad (dialectical derivation).There is a corpus of exegesis in Shari’ah law but its implementation however, has been effected with a varying degree of laxity.

As for the criminal law, it must be noted that Muslims have lived under secular laws for ages without protestations. There are only two countries where Shari’ah law is applied, albeit selectively: Saudi Arabia and Iran.  American Muslims have therefore no qualms about living under the law of the land. Civil laws however are a different matter. Let us take the example of India, home to 161 million Muslims (13.4%) among a total population of 1.2 billion. The criminal law is the law of the land and is applicable to every resident. Muslims are not clamoring for the imposition of hudud, qisas or ta’dhir (elements of religious criminal law).  In civil matters, Muslims are allowed to follow their own “personal law” or opt for the secular law. Western countries would do well to consider this precedence.

The Archbishop of Canterbury had proposed a similar procedure for the British courts, where arbitration, with the consent of the contestants, would amiably settle disputes without burdening the courts with costly trials and litigations. In any case, in the matters of divorce, inheritance, child custody and child support, the parties would have an option between the Shari’ah and the secular laws, whichever they think serves their interests best. This kind of arrangement, if mutually agreed upon by the parties and allowed by the courts, does in no way threaten the integrity and the tranquility of the society; it may on the other hand enhance them. Nevertheless, we must ensure that the women’s rights and the children’s welfare are safeguarded by the courts in the best way possible. There will be times when the Shari’ah will serve women better than the states’ laws. In California recently a court ruled that meher payment (a contractual sum payable to a woman by her husband on divorce under the Shari’ah) violated the state law prohibiting spouses from “profiteering” from divorce. Loss to the woman in this case is obvious. In general the interests of the citizens as well as of the state would be best served when the courts are independent and have discretion — not obligation — in when to reference religious laws and when not to do so.

“Foreign” Law and the U.S. Courts:

In many states legislation prohibiting the courts from considering “foreign” law or international law is being pushed with a vengeance. This raises a number of very complex legal issues, involving international treaties and trade. Compliance with international treaties, when ratified, is vouchsafed in the U.S. constitution and may be outside the jurisdiction of any one state. However, there may be areas of trade and labor laws, where complications may arise and hamper businesses of American companies.

In the U.S. courts presently marriages contracted abroad and under the Shari’ah are recognized, so are divorces executed abroad. The integration of many immigrant families is based on this provision. In the matters of matrimony, parenthood, inheritance and execution of wills disputes do arise in courts and could not be settled without reference to “foreign” laws. There is a serious concern that the ramifications of ban on foreign law now or in the future may put strains on the justice system and adversely affect the social structure of the American society.

Islamophobia, the Underlying Reason:

It is hard to believe that the proponents of the ant-Shari’ah bill of Tennessee, as it was originally written, were unaware of its unconstitutionality. Clearly, their intent was provocation and their motive was historic religious prejudice. It is not uncommon in the American history and in the history of many other countries for hate groups to arise in certain political and economic circumstances and by their actions and rhetoric malign the very society whose wellbeing they claim to protect.

It was said after 9/11 that “history begins now” or words to that effect. How true! Muslim Americans have been living in the full glare of history ever since, with their faces lit with bewilderment, although some governmental agencies, the top political leadership of both the parties, the law enforcement agencies and the leadership of almost every faith have helped to take the attention away from them. We still remember with gratitude the president of the United States’ visit to a mosque in the aftermath of the tragic event and the kind words uttered. This brought out what was good in the American people and averted a possible catastrophe. We appeal to the same good nature of the American people not to heed to bigotry, prejudice and electoral polemics. America will lose its soul if it succumbs to religious intolerance. It will lose its reason for being.

Muslims in America are a highly diverse community, consisting of almost every race, ethnicity and culture, including a large indigenous section. Among them are doctors, engineers, scientists, entrepreneurs and workers, enriching the economy with their contributions. There are Nobel laureates such as Ahmed Zewail news anchors such as Fareed zakaria and many sports celebrities. There are highly regarded congressmen and mayors in many cities.

Muslim contribution in highlighting the moral values is an asset to the society, which should not be ignored. The mosques are not a threat to anybody but beacons of light. They are centers of spiritual uplift as well as of education, social activism, moral reformation and charity.  Most mosques have prison visit programs, which have resulted in transforming many individuals into productive and law-abiding citizens. Many mosques in the inner cities have food pantries, counseling and crisis management programs.  Above all they curtail social ills. Consider a man who comes to the mosque to pray early morning, early afternoon, late-afternoon, at sunset and at night, five times in Twenty-four hours, to renew his commitment to God. What are his chances of committing unsocial acts in between his prayers? If two million people do this in a society, is the society better off or worse?

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