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You Can't Give Up Freedom in Order to Save It

A lot of Americans are afraid that Muslims in this country want to implement Sharia Law as the law of the land. Newt Gingrich wants to deport all Muslims who “believe in Sharia.” Sharia law is the law of the land in some Muslim countries, it sits alongside of official law in others and governs many interactions such as marriage, divorce, inheritance and contracts. The degree to which Sharia law is implemented or influences secular law in Muslim countries differs markedly by country and it is even banned in a Muslim country such as Turkey. Some Western countries allow Muslim citizens to follow Sharia legal precepts so long as they do not violate state law. In America, seven states have laws banning the use of Sharia Law as a basis for legal decisions. The ban is typically phrased as a ban against the use of any “foreign” law as the basis for making legal decisions, since there is precedent for using religious laws to settle disputes, as I will discuss later.

What? There is a precedent for using religious laws to settle civil disputes or even to supersede secular laws in the United States? How is that possible?

A bulwark of American society is the separation of church and state. Such separation works two ways: no religion’s precepts may be the authority for government policies or laws and no government laws or policies may interfere with the practice of religion. These two principles sometimes come in conflict. Two federal laws allow religious precepts to be the basis for legal decisions within the United States. The Federal Arbitration Act, which was passed in 1925, allows agreed upon extrajudicial arbitration proceedings to determine the outcome of contractual disputes, both within families and organizations, including between businesses and customers. Under this law, Christian groups such as Peacemaker Ministries, which uses Biblical scripture to influence arbitration decisions and whose professed aim is to “glorify God by helping people to resolve disputes,” conducts “conciliations,” which have the authority of court decisions on the parties involved. Both parties have to agree in advance, usually at the signing of a contract, such as employment or enrollment of a child in school, to abide by such decisions. Beth Din of America, an organization affiliated with the Rabbinical Council of America and sponsored by the Union of Orthodox Jewish Congregations of America, which settles disputes among “affiliated and unaffiliated Jews,” refers to itself as a “rabbinic court,” which arbitrates “disputes through the din torah process, obtaining Jewish divorces, and confirming Jewish personal status issues.” Both of these groups, as well as others, whose decisions are based upon religious texts and precepts, have had their decisions upheld as binding when challenged in court. Although decisions by these groups have been challenged on the grounds of violating separation of church and state, such challenges have lost. However, arbitration decisions by the groups cannot lead to violation of secular laws.

The Religious Freedom Restoration Act (RFRA), which is a federal act, passed in 1993, was designed to allow some religious groups, such as native American tribal members who practiced their ancestral religion, to engage in activities, such as ingestion of hallucinogenic herbs, even if the rest of the population was prohibited from doing so by state or federal law. It has been interpreted to allow businesses and church organizations to be exempt from certain laws, such as the Affordable Care Act regulations that prescribe that health insurance must include birth control drugs and devices. Several states have passed their own versions of RFRAs, which have said that businesses cannot be forced to serve customers if by doing so it violates the religious doctrine of the business owner. This came to the fore in Indiana recently when this law was used to allow business owners to not serve people who were gay. In states where this was allowed, there were no anti-discrimination laws that protected gays, so there was no conflict with an existing state statute.

There clearly is precedent within the United States for using religious precepts and texts as the basis for legally binding decisions and even for setting aside federal or state laws if they force someone to violate his or her religious practices. While Islamic Sharia Law could be used as the religious precepts upon which to base such legally binding decisions, in fact Jewish and Christian scripture and scriptural interpretations have been the dominant underpinnings of nearly all instances where religious precepts were the basis for legal decisions. Religious courts, such as Beth Din or arbitration proceedings, such as are used by Peacemaker Ministries do no allow the decisions of such bodies to violate existing secular statutes. In some Western countries, such as Germany, which allow Sharia Councils or Courts to settle disputes among consenting Muslims, such decisions also are not allowed to violate secular laws. The RFRA does, in fact, allow secular statutes to be set aside if they are deemed to infringe upon a person’s religious practices. The RFRA has only been used in the case of Native American religion and Christianity.

So even if Sharia Courts were allowed in the United States, they would not be the first or only religious court or legal system practicing within the country and their decisions could not violate existing state or federal laws.

What about our secular courts adopting Sharia Law? This is where the first version of separation of church and state comes in. The opening lines of the first amendment of the U.S. constitution say, "Congress shall make no law respecting an establishment of religion…” This has been interpreted to mean that our country’s laws cannot be based upon any one religion’s precepts. The constitution prohibits courts from basing their decisions upon religious laws from any religion. The idea that the presence of Muslims in this country, even Muslims who believe in Sharia Law, would lead to our courts adopting such laws is nonsense, because our constitution forbids it. The idea that Muslims could follow Sharia Law and perform acts that violated our laws and get away with such acts, is also nonsense.

Now we get to Newt Gingrich’s proposal. He says, “We should frankly test every person here who is of a Muslim background and if they believe in Sharia they should be deported.”  Who would be tested? “every person here who is of a Muslim background.” And what are they being tested for? A “belief.”

Newt is not even talking about speech; he is talking about deporting people for what they think.

Let’s go back to the first amendment of our constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Newt wants to make a law that doesn’t allow someone to remain in this country on the basis of his or her religious belief.  And he wants to restrict the testing for the presence of this belief to one particular religion. Newt says, "Sharia is incompatible with western civilization.” But isn’t freedom of religion, freedom of belief, one of the cornerstones of Western civilization, as we know it?

Newt Gingrich wants to get rid of American freedom in order to preserve it. Out of fear, he is willing to sacrifice the values that millions of Americans have sacrificed for and even died to preserve. I hope that all Americans, Republican, Democrat and Independent, rebuke Mr. Gingrich and resist his call for religious bigotry and violation of our constitution.

Reader Comments (7)

In principle, though I agree with you that freedom cannot be sacrificed to preserve freedom, the Sharia issue is a separate case. Christian and Judaic beliefs do not run contrary to principles of religious freedom, Islamic Sharia does. In the mindset of true believers who advocate Sharia think that it is THE law, as given to them by Allah, and any other laws man-made that conflict with its precepts are overruled by 'God's law'. Further, Sharia is inimical to our freedoms, even if only on domestic issues such as gender equality, so is in opposition to what our Constitution stands for. The issue is clear where Muslims advocate overthrow of our government with Sharia, which is seditious, but obfuscated in cases where freedom of belief, freedom of speech, gender equality, or equal rights for all are involved. In fact, the testimony of a non-believer, or woman, is worth only half of that of a male believer, which is a stealth form of bigotry. Given the animosity Sharia displays towards our (man-made) laws, it would be right for Congress to address a stress test for believers who advocate it. It may not be a popular idea, but Newt's proposal has merit as a potential law against Muslim sedition, without violating our Bill of Rights. Even an atheist, secular humanist should be able to see the difference.

July 15, 2016 | Unregistered CommenterHumancafe

I'm afraid that I think that your evaluation of the danger of Sharia Law compared to laws based on Christian or Jewish beliefs is an ethnocentric or religio-centric one. Christian beliefs against a woman's rights to choose whether or not to have an abortion or against gay marriage or against being gay in itself, have led to attempts, sometimes successful, to put in place laws outlawing abortion, preventing gays marrying each other, and in several states, allowing businesses to refuse to serve gays. In Israel, ultra orthodox Jews have tried to put in place laws that would prevent people from driving or using equipment on the Sabbath. In Arizona, a Christian state congressman last year proposed that it be made a state law that everyone must attend church. Historically, both religions have made women the servant of men and severely circumscribed women's rights. It has only been in the modern era that these discriminatory practices, based upon scripture, were overturned by more secular governments and populations. Some Christians continue to sincerely believe that women who have abortions or doctors who perform them are murderers because the Bible teaches them that life begins at conception. This belief has led to several instances of bombing abortion clinics and killing doctors. Should we test Christians for such beliefs to decide if they should stay in this country? First of all, Sharia law may be less "enlightened" than our Western laws, but we have many Westerners who believe in less enlightened rules based upon their Jewish or Christian upbringing. Second, we live in a constitutional democracy where such religioius beliefs do not determine our laws so we do not need to fear that Sharia Law nor rabbinic law nor Christian law is going to become the law of the land (I would fear most that Christian law would, because that's the majority of Americans' religion and our politicians are overt in basing their actions upon their Christian beliefs). Third, to pick our a group, based on their religion and subject them to a test to determine if what they think should allow them to remain in the country is completely contrary to our constitutionally based freedoms. It is 1984ish. We CANNOT say that we will make an exception to our constitutionally based laws to discriminate against one religious group, regardless of the reason.

July 15, 2016 | Unregistered CommenterCasey Dorman

I would also add that, there is overwhelming evidence that in the many Muslim countries that employ Sharia law to one degree or another, a) there is no connection between this belief and jihadist leanings and b) they do not try to impose their laws or beliefs upon non-Muslims. Newt Gingrich and our populace is confusing belief in Sharia Law with jihadism. They are not the same. The majority of jihadists may favor Sharia Law and even imposing it upon others; the majority of Muslims who believe in Sharia Law are not jihadists. And of couse many Muslims do not subscribe to Sharia Law and no doubt there are Muslim terrorists who do not either (the Bataclan theater terrorists in Paris had histories of violating virtually all Islamic laws and were not devout Muslims).

July 15, 2016 | Unregistered CommenterCasey Dorman

It seems your reasoning is making a 'moral equivalence' between the three Abrahamic faiths. But where Christianity and Judaism, even in their most fundamentalist forms are intolerant of others, the intolerance in Islam is on a higher scale, I would even say vehemently intolerant of others. This is not to mention their odious practices of throwing gays off buildings, beheading and mutilating hostages, killing apostates, all punishments allowed by Sharia. There seems little in other faiths to compare. So the moral equivalence is a weak comparison. Of course, it is more puzzling a modern day Left-liberal-atheist would support the idea that 'some' Sharia, a religious based ideology, is okay. Legally, it is neither endorsed nor forbidden explicitly by our secular laws, except where Sharia violates our human rights, and our laws. Historically, centuries ago, a moral equivalence might have held up, their differences being a matter of degree. Today such equivalence is absurdly unequal, and dangerously unfair, especially to women.

July 15, 2016 | Unregistered CommenterHumancafe

You are attributing the actions of ISIS to Sharia law, despite the fact that most Muslim countries include some form of Sharia law and don't do any of the things you mention, such as the beheadings, throwing gays off of buildings, or mutilating hostages (they don't even take hostages). Although many Muslims, particularly in the U.S. don't believe in any version of Sharia Law, many from foreign countries do and are used to thinking in its terms. They aren't thinking in terms of mutilations, beheadings or murdering apostates, however, because such things are not legal in their countries ( just like Christians or Jews who "follow the Bible's teachings" don't stone fornicators or forbid people to touch the hide of a pig or any of the other brutal rules and punishments that they claim are the word of their god). I go back to the point that screening Muslims for belief in Sharia Law is based on misinformation. We don't want militant jihadists in our country. What else someone believes is beside the point. We all have to obey the same laws. Whether the three faiths are "morally equivalent" is not my call nor probably not the call of anyone who professes to one or the other of them. Its not my call because I'm not sufficiently sophisticated in all the faiths or how people actually practice them to come to a judgment, although I and everyone else do and should make moral judgments when we know what we are talking about, but we are encapsulated in our own beliefs and it takes great effort to find the truth beyond them. We have to fall back on our laws, which prevent religion being either the rule of law or being persecuted. If we suspend that part of the constitution because we feel some group is so bad that they don't deserve to be accorded the rights our constitution guarantees them, then we have lost our democracy.

July 15, 2016 | Unregistered CommenterCasey Dorman

You said:
<<We CANNOT say that we will make an exception to our constitutionally based laws to discriminate against one religious group, regardless of the reason.>>
In its strictest definition, Sharia is considered in Islam as the infallible law of God; it is a legal form of social jurisprudence, not itself a religious belief, such as protect by the American First Amendment. So does a stress test on a Muslim's belief in Sharia violate a religious group's right to their belief and practice? No, it does not, as Sharia is a social and legal jurisprudence, NOT a 'religious belief'. Attending a mosque, praying and assembling, is protected by our First Amendment. A seditious parallel legal system is not protected. See the difference?

July 17, 2016 | Unregistered CommenterHumancafe

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