Welcome to Kalamna, the student blog of the Hagop Kevorkian Center for Near Eastern Studies at NYU.

Tuesday, February 8, 2011

Efforts to Ban "Foreign Law" in South Carolina Legislature: Proposal Targets the <em>Sharīʿa</em>

Three weeks ago, Sen. Mike Fair and Rep. Wendy Nanney (R-Greenville) sponsored a bill in the South Carolina legislature. If passed, it would bar courts in South Carolina from enforcing foreign laws that are deemed to be in violation of constitutional rights. Islamic law (sharīʿa) is not explicitly mentioned; a prior version of the bill included an overt ban on sharīʿa, but failed to pass). The Associated Press / LA Times picked up the story last Friday.

"What we're trying to do is, with certainty, restate the obvious, particularly for our newcomers, that culture from a foreign country or religion does not dictate our law," Fair told the Associated Press.

Rep. Wendy Nanney (R-Greenville), argued that the bill was intended to address international child custody cases, and had little to do with the sharīʿa. However, Sen. Mike Fair (R-Greenville), referred to a 1993 court case in Virginia when explaining the bill, in which the legality of a sharīʿa-sanctioned marriage was recognized in a divorce case.

The South Carolina bill is part of a wave of recently proposed legislation targeting the sharīʿa in states like Louisiana, Oklahoma, Tennessee, Texas and Wyoming. In Texas, Rep. Leo Berman (R-Tyler) proposed a bill by which "a court of this state may not enforce, consider, or apply any religious or cultural law."

Another case is of particular interest: in New Jersey in 2009, a court denied a woman a restraining order against her Muslim Moroccan husband who, she claimed, had repeatedly raped her. The judge initially found that the man "was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices." He claimed that the sharīʿa guaranteed him the right to have intercourse with his wife, therefore, according to the judge, he "did not exhibit criminal intent by raping his wife." The ruling was later overturned, based on Supreme Court precedents, which prohibited the husband from using his religious beliefs to disobey "neutral, generally applicable laws."

The New Jersey case helped inspire a "Save Our State Amendment" in Oklahoma, which explicitly banned the sharīʿa from courts. The amendment was passed in a referendum in November 2010 with 70% of Oklahomans in favor. The author of the bill, Rep. Rex Duncan (R-Sand Springs) called it a "preemptive strike" against the sharīʿa. The bill also prohibited states from referring to "legal precepts of other nations or cultures," including international law. It was later repealed by a federal judge, who found (among other things) that it violated First Amendment rights.

Most obviously, these cases reflect fear and ignorance which are exploited for political gain. Today, the sharīʿa seems to be well known by the layman for honor killings, beheadings, amputations, stoning, oppression of women, etc. However, I am less interested in these aspects; I see myself neither as an apologist for the sharīʿa nor as an ideologue attacking it. Rather, I will focus on the problems and inconsistencies associated with these bills.

So, stay tuned for the next post, when I will take a closer look at the South Carolina bill.

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