A Closer Look at Sharia in the United States

The term Sharia comes from an Arabic word meaning “path to the water,” which reflects the concept that Sharia is divine guidance drawn mainly from the Qur’an and Sunnah (teachings and guidance of Prophet Muhammad) for the purpose of helping humanity draw close to God and live in kindness and justice with His Creation. The term Sharia is used by Muslims to refer to the values, code of conduct, and religious commandments or sacred laws which provide them with guidance in various aspects of life.

While Sharia is often translated as “Islamic law,” a more accurate term for “Islamic law” in Arabic is fiqh, which refers to the human endeavor to interpret and apply Sharia.

Sharia is derived from the Qur’an and Sunnah (prophetic tradition) by qualified scholars who use an interpretative process that includes qiyas (reasoning by analogy) and ijma (scholarly consensus) and also relies on precedent. This process of interpreting Sharia is called fiqh in Arabic, which means “deep understanding.” Fiqh is determined by qualified religious scholars who use their knowledge, understanding, and individual judgement to interpret religious law, often arriving at different conclusions with their interpretations. Fiqh is an interpretation of Sharia and, like halakha or Jewish law, is an ongoing effort and process. Because much of Sharia is interpretative, it has a degree of flexibility that allows it to function in different societies and cultures. Thus, Islamic law or fiqh has historically functioned in diverse areas in the world, generally with a demonstrated record of tolerance and pluralism towards other cultures and religions.

Sharia addresses both personal and communal aspects of life. For the most part, Sharia is concerned with personal religious observances such as prayer and fasting.

Sharia can be divided into two broad areas:

• Guidance in religious worship (ibadat), which is the central focus of Islam.
• Guidance in worldly matters (mu’amalat) such as visiting the sick, taking care of our parents, marriage, inheritance, investments and business affairs, etc.

It can be further divided into three more specific areas, some of which apply to Muslim Americans and some of which do not:

• Religious worship and ritual: Muslim Americans practice their acts of worship (prayer, fasting, pilgrimage, etc.) or rituals in the same manner as people of other faiths.
• Private social interactions (marriage, business, etc.): All religions have rules for marriage and ethical economics. These are private and voluntary, so Muslim Americans follow Islamic standards for these within the limits of American secular law. For example, civil law prohibits having more than one wife, so Muslim Americans must abide by this law (since Sharia recommends monogamy, this isn’t a problem). There are other aspects of marriage laws such as the mahr (gift from the husband to the wife) or the religious marriage contract which Muslims do observe. Since the Constitution allows such practices for all religions, it is also acceptable to practice this aspect of Sharia in America.
• Public law issues (criminal law, war and peace, etc.): These have no application in the U.S. Islamic scholars formulated rules in this area for Muslim-majority societies in other historical situations. But Sharia requires Muslims to obey “the law of the land” of the country they live in. The “law of the land” in the U.S. is the Constitution. Sharia requires Muslim Americans to support and follow the Constitution in all matters related to public law. Most aspects of Sharia are not meant to be government-enforced, because Sharia is largely a matter of conscience.

Any observant Muslim would consider him or herself to be Sharia-adherent. It is impossible to find a Muslim who practices any Islamic ritual and does not believe him or herself to be complying with Sharia.

Yes. Most religions have sacred laws or religious standards for the different areas of life. For example, Jews have halakhah, which is very similar to Sharia in method and content. Catholics have the teachings of the magisterium (teaching authority), which deal with things like marriage, business practices, and social justice.

Some people falsely equate Sharia with criminal or huddud laws, which are centuries-old specific punishments for major crimes such as killing, adultery, or theft. Huddud laws are only a tiny part of Sharia and can only be applied by an Islamic state; it is questionable if any of the nations claiming to be “Islamic states” actually fit that description morally or structurally, so these laws are generally not applicable in a modern context, let alone in the U.S. Unfortunately, the misapplication of these laws by the Taliban or other contemporary groups or governments generally contradict both the letter and spirit of Sharia and have given it a bad name.

Fatwa is an Arabic term that means a ruling or legal opinion that has been deduced by a qualified Islamic scholar (or someone claiming authority in Islam) on issues pertaining to Islamic law that generally have not been previously decided. Since these opinions are non-binding, Muslims are free to choose whether or not to follow them.

Understandings of Sharia vary widely among Muslims; the same is true of concepts of human rights, which differ widely in different countries and among different people. The most authoritative statement on human rights is the UN Declaration of Human Rights, which has been subscribed to by the great majority of the nations of the world (and is, therefore, not peculiarly “Western”). The Declaration of Human Rights enumerates both civil liberties (e.g. the right to free expression, free association, and freedom of religion and conscience) and economic and social rights (e.g. the rights to food, housing, and medical care).

While Muslim interpretations of Sharia vary, reference to the authoritative sources of Sharia, the Qur’an and Hadith, show that Islamic scripture affirms most of what are today considered human rights. The rights affirmed include freedom of thought and expression, freedom of religion and conscience (including the right of other religious communities to live according to their own beliefs and laws), and, in particular, rights for women, including the right to inherit and own property, which were not granted to European women until the 19^th or even the 20^th century. As is the case with contemporary views of human rights, Islamic sources maintain that individual rights are not absolute, but must be understood in relation to other individuals’ rights and the public good. While no Muslim-majority country—and indeed no country in the world—has fully lived up to the ideals of the Declaration of Human Rights, Sharia as understood by the majority of Muslims clearly supports the aspiration to do so.

Views on women’s rights under Sharia differ widely according to the interpretation of Sharia in a given community. Nonetheless, the authoritative sources of Sharia accepted by all Muslims, the Qur’an and Hadith, clearly uphold basic rights for women, particularly in light of existing laws and customs around the world in the seventh century when the Islamic sources emerged. At a time when women had little economic or personal agency, Islamic teachings gave women the right to seek knowledge and teach others, to earn money and to keep what they earn, and the right to inherit—rights not fully granted to women in Europe until the 19^th or even the 20^th century. The Prophet Muhammad specifically advocated equal treatment of daughters and sons and, by implication, women and men generally. Among the Prophet’s sayings or Hadith are those which stipulate a woman’s right to marry and divorce, and which advocate good treatment of one’s wife. Some of the historic Muslim women who illustrate these rights include Khadija bint Khuwaylid, who was a successful merchant and proposed marriage to the Prophet Muhammad, Nusayba bint Ka‘ab, a courageous woman warrior, Ash-Shifa’ bint ‘Abd Allah, who was appointed by the second caliph ‘Umar as muhtasib or the one responsible for oversight of the financial workings of the marketplace, and Fatima al-Fihri, the founder of the oldest continuously operating educational institution in the world, the University of al-Qarawiyyin in Fez, Morocco.

While it is true that some Muslim groups and rulers, such as the Taliban, have followed interpretations of Sharia that have curtailed women’s rights, in other Muslim-majority countries women are making great strides in education, work, politics, and non-profit sectors. Over a dozen Muslim women have even been elected to serve as heads of state, including in Bangladesh, Turkey, Pakistan, Indonesia, Senegal, Kyrgyzstan, Mali, Kosovo, and Tanzania. This is clear evidence that while there is no universal understanding or application of Sharia or Islam generally, groups such as the Taliban do not represent the mainstream and are definitely extreme in their practices, which is why they have been condemned by other Muslims.

Muslims follow Sharia in the same way that people of other faiths follow their sacred laws and traditions. The religion clauses of the First Amendment of the Constitution allow complete freedom of belief and freedom of religious practice, so long as adherents respect other people’s rights.

The American way, as enshrined in the religion clauses of the First Amendment of the U.S. Constitution, protects freedom of religion and religious practice. It allows religious and secular groups to follow any way of life, so long as it is voluntary and they respect the rights of others. America has always had numerous religious groups who follow their own sacred laws and lifestyles (Catholics, Jews, Baptists, Amish, Buddhists, Quakers, religious communes, etc.).

American Muslims practice Sharia on a voluntary, private basis in a manner similar to Catholics who obey the magisterium or Jews who follow halakhah. The essential parts of Sharia are practices such as daily prayers, fasting during the month of Ramadan, marriage contracts, and rules for charity and investments. Muslims follow these practices without infringing on anyone else’s rights. For example, if a Muslim eats a halal or kosher hamburger, nothing prevents someone else from eating a bacon cheeseburger!

Muslims can be true to both America and to their religion just as Christians, Jews, Hindus, or adherents of any other religion can be true to both their country and their faith. According to our understanding of Islamic teachings, anyone living under the protection of a civil government in the country in which they reside owes obedience to that government, regardless of what type of government it is or whether or not one is living in a Muslim-majority country.

Muslim minorities living in secular societies or ones where another religion is dominant implicitly enter into a social contract with that government and therefore must respect and uphold that country’s laws and government. In fact, American Muslims enjoy the same benefits as other Americans, such as freedom of religion, economic opportunity, access to public schools and universities, America’s natural beauty, respect for diversity, etc., which is an additional reason for them to be loyal Americans.

Since Muslims make up 1 to 2% of the American population there is little danger of Sharia being substituted for U.S. law in American courts, nor is there evidence that anything of the sort is happening or even is being contemplated. However, the First Amendment clearly provides protection for the free exercise of religion, which includes protecting the rights of Muslims, as well as Jews, Christians, and others, to observe their own laws in matters of faith, including the adherence to rules regarding personal worship and some family laws. However, no religious law can supersede state or federal law. Moreover, Sharia commands Muslims to abide by the law of the land in which they reside.

No, America Muslims are merely trying to follow Sharia in their personal life just as practicing Jews try to follow Jewish law (halakha). There is no evidence of American Muslims individually or as a group trying to force Sharia on others. Muslims are obligated to adhere to the law of the land, and the observance of any laws that run contrary to the Constitution such as polygamy would be prevented even if someone tried to implement them.

American democracy is based on the Constitution. The Constitution protects rights such as religious freedom, privacy, and private property. The Constitution allows people to follow their conscience as it relates to culture, behavior, and lifestyle, so long as they respect others’ rights and their actions are compatible with the common good.

Muslim Americans can follow Sharia (Islamic values and way of life) in the same way that adherents of other religions follow their sacred laws, values, and lifestyles. The basic parts of Sharia (rituals, marriage and family life, charity and ethical business practices) are private and voluntary.

Almost all religions have some kind of sacred law. Sacred law derives its authority from God or the religion’s founder, appeals to the heart and conscience, and is a spiritual guide for the believer.

In America, the religion clauses of the First Amendment state that the government must protect itself from the imposition of any religion while at the same time protecting people’s rights to practice their own religion. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”) This means that, in the United States, individuals, families, and religious and private groups are free to follow their own sacred laws, as long as:

• they do so voluntarily,
• people are free to join or leave these groups, and
• the freedom and rights of others are respected.

Secular law also provides parameters or limits on following sacred law, to ensure that the public interest is protected (e.g., the United States prohibited Mormons from practicing polygamy).

There is an ongoing debate in the West over religion and modernity. Some say they are compatible and others say they are not. Long before 9/11, there have been significant disagreements within the West itself over the compatibility of religion and modernity. After 9/11, many people discuss Islam and modernity as if struggles over faith and reason are unique to Muslims. However, this issue has long been discussed in the West, and both Western and Muslim societies struggle over religious traditions in our modern life.

Beginning with the Enlightenment in the 18th century, many scholars and others have argued that religion and modern life are incompatible and that as societies become more modern they also necessarily become more secular and less religious. There have been many proponents of this view, such as Karl Marx, Sigmund Freud, and Max Weber and other sociologists and historians. In most of the Western world, there have been declining levels of support for religion, as measured by polls on religious belief and attendance at religious services. Jewish and Christian groups have had, and continue to have, serious divisions over modernity and tradition, sometimes resulting in institutional schisms and break-ups.

In American politics, there are also deep divisions over the role of religion in government. Liberals and progressives believe that the religion clauses of the First Amendment teach separation of church and state. Conservatives, on the other hand, frequently deny this, and claim that America is a Christian or Judeo-Christian country. We see this most prominently in the “culture war” issues such as abortion, same-sex marriage, and prayer in public schools. In general, the West is divided about whether religion should be a purely private affair, or whether it can be a means of guidance for social and political issues. So when we hear discussions of tensions between modernity and religion, it is important to realize that there are deep-rooted tensions in the West around this topic as well.

Accommodation for Muslim practices is no different from accommodations for other religious practices. American law treats Sharia just like any other religion’s sacred law, values, and lifestyle. According to Title VII of the Civil Rights Act of 1964, an employer must provide a reasonable accommodation for religious practices unless doing so would result in undue hardship. If a shop clerk wears a headscarf or takes a prayer break, this does not impose her religion on anyone else. Schools and businesses often adjust working or study conditions or allow for religious garb for Jews, Sikhs, and others. When businesses freely tailor products to certain customers (e.g., vegetarian restaurants for Seventh Day Adventists or Buddhists, kosher and halal meats for Jews and Muslims), this doesn’t hurt anyone else – it is merely an example of capitalism and the free market in action.

Opponents of Sharia argue that it is a totalitarian system because it covers so many aspects of life. Sharia provides rules, recommendations, and injunctions on a wide range of topics including religious practice, ritual purity, diet, clothing and modesty, marriage, divorce, inheritance, charitable giving, investments, business contracts, criminal law, etc.

Because Sharia has its foundation in divine revelation (Muslims believe the Qur’an, the Muslim holy book, to be the word of God), opponents allege that it is inflexible, takes away human choice, and therefore is contrary to freedom. This portrayal of Sharia is highly simplistic and fails to recognize that there is always a human element in the interpretation and implementation of religious guidance and injunctions. The current rhetoric always focuses on Sharia (divine guidance), yet fails to mention fiqh, the human process of understanding divine revelation which allows also for flexibility and diversity in the application of Sharia.

A core American value is religious freedom for all Americans. Trying to “ban Sharia” would mean banning observant Muslims from performing any religious practice. Additionally, Sharia bans single out one religion (Islam) and make its adherents (Muslims) vulnerable to harassment and persecution for engaging in peaceful religious practices, such as praying five times a day or only eating certain kinds of meat, since such practices are part of Sharia.

“Sharia bans” violate the religion clauses of the First Amendment, which guarantee that people of all faiths (and none) can practice their religious or other traditions, so long as they respect the rights of others. Such bans also create a precedent for targeting other minority religions.

“Sharia bans” are especially detrimental for observant Jews. Jewish law (halakha) and Sharia are very similar with common standards of dress (beards and head coverings), daily formal worship, and prohibition against eating pork, circumcision, and marriage and divorce practices. Any ban on Sharia practices could impact many Jewish practices as well.

“Sharia bans” also threaten the American traditions of arbitration. Our democracy allows private parties to settle disputes out of court, following their own arbitrators (within the limits of civil law). American Jews and other groups sometimes engage in arbitration following their religious traditions. Sharia bans would make these illegal.

Finally, “Sharia bans” threaten everyone’s economic livelihood, including secular Americans. America’s economy depends on international trade. Our trade agreements and business contracts often reference the laws of other countries. “Sharia bans” would make it impossible for American courts to consider those laws when handling disputes about contracts. Foreign investors, therefore, would have less protection in American courts, which would result in decreased investment in the United States, causing our economy to suffer.

The anti-Sharia movement is part of a larger Islamophobic campaign sponsored by an organized network. Muslims and their faith are also targets of various efforts—some successful—to pass anti-Muslim laws at the state level. Most of these laws follow a template furnished by an organization called American Laws for American Courts (ALAC), led by David Yerushalmi, a well-known Islamophobe. A report by the Center for American Progress describes Yerushalmi’s effort as follows: “Yerushalmi…authored the model anti-Sharia bill, which would make adherence to Sharia ‘a felony punishable by 20 years in prison.’ This template for anti-Sharia legislation was used in state legislatures across the country with the intent of stigmatizing Muslims and creating hysteria about the nonexistent threat of Sharia law.”¹

These laws are based on the unfounded claim that American Muslims are seeking to replace the Constitution with sharia law; the legislation prohibits courts from using “foreign law.” The original template for these laws in fact specified not “foreign” law in general but “sharia law”; the wording was revised when an Oklahoma law using the latter term was ruled unconstitutional; but, as proponents have made clear, the target of such laws remains “Sharia.”

This Islamophobia network is made up of a number of conservative foundations, intellectuals, think tanks, grassroots organizations, religious leaders, and various conservative media outlets and politicians. Both the Center for American Progress and CAIR-DC have published extensive reports on what they term “the Islamophobia Network,” a cluster of organizations that promote and disseminate Islamophobic views. Their 2015 and 2016 reports² name 33 organizations whose primary purpose is to propagate Islamophobia (the “inner core”) and 41 whose primary focus is not attacking Islam but which nonetheless contribute to and support Islamophobic ideology (the “outer core”).

Groups such ACT for America, the organizer of anti-Muslim protests in more than two dozen cities in June of 2017, and, according to the Southern Poverty Law Center, the largest grassroots anti-Muslim group in America, states on its website that “Sharia is incompatible with Western democracy and the freedoms it affords.” It promotes the idea that Islamic principles don’t fit with American values. This and other groups also make the unfounded claim that American Muslims are trying to sneak Sharia into the American legal system in ways that are counter to American legal principles or beliefs. Because many Americans think of Sharia as an Islamic legal system characterized by misogyny, intolerance, and harsh punishments, such claims are often taken very seriously by those who know little about Muslims and their faith.

In addition to being flat out wrong and totally far-fetched in the claim that Sharia is taking over our legal system, defining Sharia as a threat to the constitution and American way of life automatically assumes all adherents of Sharia to be anti-American. This casts suspicion upon all observant Muslims and conveys the inaccurate view that Islam is not only incompatible with American values but also a threat to the American way of life.

The anti-Muslim sentiment that such attitudes convey is clearly intended to further demonize and marginalize Muslims and prevent Americans of all faiths from working together for the security of the U.S. In an increasingly globalized world, Islamophobic rhetoric and actions in the U.S. further endanger our national and global security. Mainstreaming “anti-Muslim” and “anti-Islam” sentiment in America only strengthens the perverse narrative of violent extremists that the West is indeed at “war” with Muslims and so creates a cycle of provocation and response that is harmful to both Muslims and the West.

Even if the most extreme interpretation of Sharia were the correct one, there is absolutely no evidence that the U.S. legal system is in any danger of adopting tenets of Sharia. It is important that these anti-Sharia laws be examined rigorously, in order to understand their implication; as emphasized by Jewish Americans, according to a report from the Jewish Telegraphic Agency, “a prohibition against ‘Sharia’ and ‘religious law’ in the U.S. would infringe upon the rights and customs of other religious communities, who have relied upon contract law and civilian courts to enforce their arbitrations based upon their religious customs.” That is why many “Jewish groups across the spectrum have generally opposed bids to ban sharia law, arguing that Muslim Americans apply sharia in much the same way Orthodox Jewish communities apply halakha, or Jewish law, through religious courts: to grant divorces and to settle disputes of religious matters, while always deferring to civil courts. Jewish groups that address civil society issues, like the ADL, have also said that the movement to ban sharia often masks an anti-Muslim bias.”³

Ten states prohibit the use of foreign law in their state courts, which is another way that they have worked to ban Sharia without appearing to discriminate against Muslims. These states are Alabama, Arkansas, Arizona, Louisiana, Kansas, Mississippi, North Carolina, Oklahoma, South Dakota and Tennessee.⁴

In 2017, sixteen states have legislation on the subject. They include Arkansas, Colorado, Connecticut, Delaware, Idaho, Indiana, Iowa, Kentucky, Maine, Michigan, Missouri, Montana, North Dakota, Oregon, South Carolina, and West Virginia.⁵

Many advocates of the “Sharia threat” also refer to taqiyya, an Arabic word which means concealing one’s faith out of fear of death, to mean religiously justified lying. However, the majority of Muslims know nothing about, let alone subscribe to the theological concept of taqiyya, in fact, it is a minority opinion and is generally discussed in the context of a war where one’s life is threatened.

The charge of taqqiya is often deployed by “Sharia threat” advocates when confronted with evidence that refutes their thesis. Under this methodology one cannot trust any practicing Muslim. Even if a Muslim preaches and practices non-violence, these individuals would say that person is either not a true Muslim or is practicing taqiyya. While providing a mechanism for critics to ignore any disconfirming evidence, adopting such an interpretation of taqiyya would almost certainly result in every observant Muslim being branded a liar or suspect simply by virtue of being Muslim.