Cyra Akila Choudhury
Florida International University College of Law
September 18, 2012
In 2011, several states passed anti-shari’ah laws arguing that they were necessary to protect the United States’ from the infiltration of Islamic law. According to supporters, these new law protect us from “shari’ah creep,” which has allegedly already influenced several recent civil cases, particularly in family law, that had an Islamic dimension or involved Muslims. Supporters further argue that any reference to Islamic law in our civil courts presages an unacceptable shift towards the formal establishment of a parallel or alternative legal code to our laws. Such accommodation, in their view, threatens to augment or replace our secular system with religious extremism. Finally, proponents of these new model laws argue that they reflect vital national security measures because terrorists follow shari’ah law and seek to install it in the United States. As such, the laws are critical to our ongoing war against Islamist terror.
This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws are the latest in an ongoing legal and social resignification of Islam and Muslims in an effort to maintain a visible and “alien” threat. It argues that even if they are ineffective as national security laws and even if they are struck down as unconstitutional, anti-shari’ah laws have social effects on Muslims, marginalizing them from the mainstream and singling them out for differential treatment. The Article then analyzes the anti-shari’ah laws as part of a broad spectrum of social and legal methods used in the post 9/11 War on Terror that have the overall effect of “casting out” Muslims from the protection of both civil and human rights law. As such, the anti-shari’ah laws which form a part of this edifice of exclusion must be taken seriously. The Article concludes with the suggestion that states should refuse to participate in the Manichean construction of the Muslim enemy in a global War on Terror, and that we should recognize that our security depends, not on the ongoing exclusion of Muslims, but on their participation and cooperation.