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Sum of Shariah: New KS law denies use of foreign codes


06 30 12

 

 

 
By HELEN T. GRAY
The Kansas City Star
 
Women can drive in Kansas. The stoning of adulterers is not condoned, nor is removal of the right hand of thieves.
 
Yet the Kansas Legislature overwhelmingly passed and Gov. Sam Brownback recently signed a ban against state courts or agencies making any ruling based on foreign laws — read, Shariah.

The word Shariah means “path,” and in many parts of this country it is leading not to the least, but the most, resistance.

“Many people use the word Shariah and don’t know what it means,” said Jacquelene Brinton, an Islamic specialist in religious studies at the University of Kansas. “They don’t know what they are banning. They are going by the extreme examples in some other countries.”

Such cases, from beheadings of murderers in Saudi Arabia to family “honor” killings of women in Pakistan, attract censure from the West, but they tend to spring from specific cultures.

Shariah is a complex system for regulating the conduct of devout Muslims. Shaped by history and regional customs, codes and religious texts, it is more flexible than Westerners might believe, tempered by modernism, and of course, a nation’s laws.

“American Muslims are not trying to replace the U.S. Constitution with Islamic Shariah,” said Riyaz M. Lareef, director of Outreach for Islamic Circle of North America-Kansas City. “American Muslims want to have the liberty and freedom like other religious groups — such as Jews and Catholics — to follow Islamic religious principles in personal lives and private contracts.

“These rights include praying, fasting, giving to charity, building places of worship, being honest, being generous, wearing Islamic clothing, marriage, inheritance and business transactions.”

A bill passed in Tennessee, however, contends Shariah would promote “the destruction of the national existence of the United States.” Newt Gingrich, failed contender for the Republican nomination, called it “a mortal threat to the survival of freedom in the United States and in the world as we know it.”

The Center for Security Policy in Washington, D.C., warns that it “oppresses women’s liberties and human rights, denying them their unalienable rights of life, liberty and pursuit of happiness.”

Such views are Islamophobic, others argue, and are driving a wedge between most Americans and a fast-growing minority.

Kansas is just one of more than a dozen states, generally the “red” ones on the political color spectrum, where some fear encroachment of Islamist influence. Oklahoma led the way with a constitutional amendment that specifically referred to Shariah, but it was tossed out as discriminatory by federal courts.

Kansas law says courts, administrative agencies or state tribunals cannot base rulings on any foreign law or legal system that would not grant the parties the same rights guaranteed by state and U.S. constitutions. The term Shariah is nowhere to be found.

In Missouri

Nor was it in the bill that passed the Missouri House of Representatives this year, only to die in the Senate. The American Civil Liberties Union out of St. Louis provided organizational support to the Muslims as they sought to gently play the religious liberty card.

Muslims went to the state capitol in Jefferson City to lobby en masse, prompting Kerry Messer, lobbyist for the Christian Life Commission of the Missouri Baptist Convention, to write that the appearance of 120 Muslim participants was “probably the starkest culture clash I have seen personally in 27 years.

“There is a visual impact of seeing dozens and dozens of women in (head scarves). What I want to know is, will they bring a bloody wife? Will they bring a wife with a black eye? Will they bring a wife with her arm in a sling? Will they bring those wives to the state capitol and lobby for Shariah law? I doubt it.”

Raj Bhala, professor of law at the University of Kansas School of Law, said the fear of Shariah is irrational, based on ignorance not only of Islamic law but also American law that prohibits cruel and unusual punishment and provides protection for women and children.

“So it would be illegal for a state to enforce some element of Shariah that would run against American laws,” he said. “This threat of Shariah taking over the American legal system cannot happen because of the safeguards we already have.”

Supporters of the Kansas law cited a pending case in Sedgwick County involving a man divorcing his wife who has asked for property to be divided under a marriage contract in line with Shariah law. What the husband would have to give the wife would depend on the contract, Bhala said.

State Rep. Peggy Mast, of Emporia, a lead sponsor of the bill, was quoted in a Reuters article saying that research had revealed more than 50 cases around the country where courts or government agencies took laws from Shariah or other legal systems into account in decision-making.

Gary Brunk, executive director of the ACLU of Kansas and Western Missouri, said he didn’t know where Mast got her figures.

“From our perspective, that there is a Shariah threat is a myth,” he said.

Bhala said the new law should not affect cases like the one in Sedgwick County. It would make more work for Kansas judges.

“Judges now have to research Islamic family law, Kansas family law and consider whether any relevant federal rules apply,” he said. “Then they have to compare Shariah with the state and federal laws.

“They would only respect a Shariah contract if it gives the couple the same rights and privileges as Kansas and federal laws.”

He said if one substitutes Dutch law or Japanese law for Shariah law, it would be the same. People come to the state who were married under the rules of many different cultures, he said.

A campaign for understanding

In response to the perceived attacks on the faith, Muslims are trying to get the word out about what Shariah really is and how it is implemented in this country. The effort is spurred by a national campaign, Defending Religious Freedom-Understanding Shariah, implemented by the Islamic Circle of North America.

Lareef noted the billboard his group paid for in January and February in Kansas City, giving contact information for people who want to know more about Shariah. Another will go up later this year.

How is Shariah carried out in this country?

One example is that in an Islamic marriage, certain conditions have to be met: the dowry to the bride, a marriage contract, witness, etc.

“But even when following Shariah, Muslims are bound by the covenant to follow the law of the land,” Lareef said.

According to Islamic law, the right to divorce is the unilateral decision of the man. Brinton said the woman would have to gain such recognition in her religious community, but it would be up to her to pursue that. Still, she could always get a divorce in a U.S. civil court and legally remarry.

Other religions have their own long-accepted domestic rules, which Muslims note do not interfere with the U.S. courts.

In a Jewish marriage, the two parties each have responsibilities to the other, but it is the husband’s responsibility to support his wife, said Rabbi Simcha Morgenstern, at the Torah Learning Center in Overland Park.

The husband must be the one to grant his wife a divorce. This goes before a Jewish court, and she receives a document officially stating the marriage is over.

If the husband refuses, the Jewish court can exert pressure, but it is still up to the husband. A resulting divorce in a secular court might result in a larger settlement than in the Jewish court, but Morgenstern said, “under Jewish law, she would still be considered married. It’s two different worlds.”

In Catholicism, canon law governs marriage, among other things. Couples to be married by a Catholic priest or deacon must meet certain requirements, said Deacon Tony Zimmerman of the Office of Marriage and Family Life in the Archdiocese of Kansas City in Kansas.

The church believes God ordained marriage to be for life and does not recognize divorce, he said. A Catholic tribunal, however, can decide whether a bond between the couple actually existed, and if not, can issue a decree of annulment.

Scholars also note how many Protestants saw Catholicism as a threatening foreign intrusion for much of two centuries, but today the majority of the Supreme Court justices are Catholics. Similarly, Jews in Europe once were considered second-class citizens or worse for not giving up their theology, language and traditions.

Eliyahu Stern, a Yale professor writing an op-ed in The New York Times, warned that some measures in legislatures would go farther than curtailing marriage disputes through religious arbitration, “while others would go even further in stigmatizing Islamic life.”

Bhala, a Catholic of Indian ancestry, modestly calls himself a student of Islamic law. But he’s more than that. He spent three years writing a book, “Understanding Islamic Law.” The 1,500-page book covers the history, religion and law of Islam.

There are roughly 1.3 billion Muslims in the world, he said, only about 2 million in the United States, less than 1 percent of the population.

Bhala noted three major misconceptions about Islam:

“One is that Muslims are entirely different from us; it is us (vs.) them.

“When we think of them being fundamentally different from us, it denies the fundamental truth that all people are made in the image and likeness of God,” Bhala said. “Once you go down that line, it becomes very easy to demonize them.”

The second is that if one says they are not like us, it is much easier to stereotype them and say they are all extremists.

“It’s a slippery slope,” he said.

Third, if one believes that Muslims are monolithic — which they are not — then anti-Shariah legislation is based on stereotypes, he said, “and stereotypes lead to prejudice.”

Article Courtesy: Kansas City Star

 

  • William

    You claimed this misconception:“One is that Muslims are entirely different from us; it is us (vs.) them”

    I read the Koran to remind myself this most unenlightened book has at its core doctrine a separation of Muslims and Kaffurs. There can be no peace between Islam and REST OF THE WORLD

  • Sadaf

    @William:

    Every single religion on earth claims to be the most true and right religion, thus labeling the rest to be invalid; it is not just Islam. By belonging to any religious group you are claiming to be true, and consider others religions to be invalid. But we all can have our views as long as they do not affect others in a negative way. Like the word “Racism”; its called “Racism” when one benefits from their prejudice towards a race/group otherwise it is prejudice.

    Because Muslims come from a very diverse background you will find them to be tremendously different in the way they practice Islam. I am a Muslim, and I am sure I do not support most of the harsh punishments certain groups have come up with, but by completely ignoring a religious law such as disapproval of Sharia law in courts, and the vow of not ever using it, we are giving a different message.

  • David

    If no one has any intention of ever applying elements of Sharia law in this country and all Muslims really believe that the law of this country takes precedent over all other laws, I would have 2 questions:
    1, why would Muslim groups feel the need to fight the legislation, since in your own words it isn’t relevant.
    2, why would Muslim groups feel the legislation was about them, since no mention of sharia is contained in the laws?

  • Matthew

    Islamic Shariah has two definitions the legal one and the common usage one. The common usage itself has different meanings when used by Muslims and when used by non-muslims. For a non-muslim, Shariah is any law coming out of a muslim country regardless of the basis used for its justification. For Muslims it means the Islamic code of law as derived from the Qur’an, ahadith, and legal precedent in muslim courts (as opposed to secular courts). From a legal stand point, Shariah is only the laws specifically mentioned in the Qur’an and Ahadith (sayings of the prophet). The rulings of scholars and jurists, the laws made derived from the “legal shariah” and other laws made in line with both of those utilizing local custom (common law) is called Fiqh. Shariah in the legal sense does not change, but fiqh is different depending on location, which is why muslim women have to wear burkas and a veil in some areas and others can wear a head scarf, jeans, and a shirt.

    For a muslim, the Qur’an set forth how inheritance is to be divided, who inherits what percentage, etc, what types of business contracts re lawful and unlawful (interest and usury are prohibited and this involves more than just charging an interest rate, for example, agreeing to trade high quality oranges for low quality apples and then trading low quality oranges instead or a mix of high and low apples or oranges instead of what was agreed to is a form of interest or usury and is forbidden in Islam.

  • Matthew

    It is these types of rulings that Shariah (and fiqh) cover and that muslims use in our contracts and legal affairs that potentially are prohibited by this State legislation. This is partly why it is important.

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