The Scribblings of a Madman: Why Sharia Law has no Place in American Courts

I wrote this on the 5th in response to reading the following article and the comments made regarding it.

http://www.foxnews.com/politics/2010/11/04/muslim-sues-oklahoma-anti-shariah-ballot-measure/?test=latestnews#dsq-new-post

Joshua Steen
5 November 2010

First let me begin by clarifying a common misconception about the Constitution of the United States, and “Separation of Church and State.” The Constitution makes no such provision, at least not in that precise language and the term is often mischaracterized as a Constitutional protection. This has been a source of debate for years, and was indeed ruled on by the Supreme Court which found that there IS a need for and a separation of church and state.

The intent of making that distinction is for clarity relating to the issue of Sharia Law being allowed in U.S. courtrooms, and not to spark a separate debate on the “Church and State” issue or how it should be interpreted as written in the Constitution.

The actual term “thus building a wall of separation between Church & State” was in a letter written by Thomas Jefferson to the Danbury Baptist association of Connecticut. This phrase is often misquoted, and certainly taken out of context. Here is the letter in its entirety:

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

As Thomas Jefferson was one of the framers, his interpretation is most likely accurate and correct and hence the source of confusion for the modern courts, since the Constitution doesn’t specifically use that precise language.

During his Presidency, Thomas Jefferson did not follow the example of the previous Presidents and refused to issue proclamations of Thanksgiving and Prayer, due to his belief that the Church and state should be separated. The problem is the modern interpretation of the concept lacks the nuances in Thomas Jefferson’s understanding of the issue.

That being said, there are several larger more defensible positions against Sharia Law in U.S. courts, which have constitutional basis. These articles completely remove the ambiguity of the 1^st Amendment (if any exists) and clearly and definitively prevent the institution of Sharia Law in ANY U.S. Court.

1. Article V of the Constitution prevents having to answer for a “Capital or otherwise infamous crime” without an indictment from a Grand Jury, and without due process of law. Sharia Law clearly violates the Constitution in that regard, particularly in cases involving women.

2. Articles VI, VII and VIII provide for speedy public trials, Jury trials and disallows cruel and unusual punishments. Does anyone dispute that beating a spouse or woman for some violation of Sharia Law, by a rod or hand to be cruel and unusual punishment? The U.S. would call that assault and has long since abandoned “the rule of thumb” as being acceptable practice.

3. Article IX preserves the rights of the individual. As such, if Sharia Law was somehow applied in a U.S Court, then the defendant could demand the right to a normal trial by jury.

4. Article XI: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

5. Article XIII: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

6. Article XIV: Section 1. No state can make a law that abridges privileges or immunities of citizens, nor deprive any citizen of life, liberty or property without due process. The state must provide equal protection under the law. Sharia Law by its very nature violates this article.

Using these articles and excluding the 1^st Amendment all together, removes any ambiguities regarding the institution of Sharia Law. As such, passing a law that bans the use of Sharia Law does in fact support the State’s Constitutional obligation to protect its citizens as provided for BY the Constitution.

Including the 1^st Amendment, while unnecessary, makes the “Freedom of Religion” argument moot, since the Oklahoma law does not preclude any Muslim from practicing their religion. The Oklahoma law does not prevent Muslims from practicing, or establishing their religion, nor does it abridge their freedom of speech. The law does nothing more than prevent the Muslims from imposing their religious laws into our legal system. The Oklahoma law provides for the separation of church and state. The church being separated in this case is the church of Islam.

The very nature of Sharia Law would cause the United States to take a giant leap backward, as it upholds the treatment of women as property, demands cruel and unusual punishments for all manner of infractions, including those that are very minor. Removes the rights and protections from women in cases of divorce, and demands that homosexuals be put to death.

Is this the direction we want American courts to take, even if these laws and rulings are only being applied to Muslims? What happens to a non Muslim citizen who becomes involved in some sort of dispute or altercation with a Muslim? Does the non Muslim forgo their rights and acquiesce to Sharia Law? What if the non Muslim in question is a woman, who is taken to court by a Muslim man?

Once you open the door to Sharia Law, you must then allow all other religions to have a separate set of laws tailored to their particular practice and beliefs. Equal protection under the law would be the driving Constitutional precedent for all religions getting their own courts.

References:

http://www.timesonline.co.uk/tol/comment/faith/article4749183.ece

http://www.jihadwatch.org/2010/07/sharia-courts-in-the-uk-these-privatized-legal-processes-were-ignoring-not-only-state-law-interventi.html

http://en.wikipedia.org/wiki/Separation_of_church_and_state

http://www.allabouthistory.org/separation-of-church-and-state.htm

http://www.usconstitution.net/jeffwall.html

http://www.trosch.org/moh/sharia-law.html

http://en.wikipedia.org/wiki/Sharia

http://www.answering-islam.org/Sharia/

http://www.religioustolerance.org/islsharia.htm

http://www.americanthinker.com/2005/08/top_ten_reasons_why_sharia_is.html

http://www.memri.org/report/en/0/0/0/0/0/0/1091.htm