Matthew Schmitz's recent piece on anti-sharia laws betrays so many misconceptions that we might charitably have passed it over in silence. But it provides an opportunity to revisit some Muslim issues that we haven't talked about in a while and also to give, perhaps, a slightly unusual take (you'll have to wait until nearly the end to come to that) on anti-sharia bills like the one passed in Kansas.
The biggest problem with Schmitz's piece is that Schmitz obviously doesn't understand Muslims in America. At all. His entire shtick is that Muslims are our fellow religious believers with whom we must hang together if we are not to hang separately, that conservatives' whole thrust should be to "protect" Muslims and make common cause with them, and that, apparently, all that the Muslims in our midst want is religious freedom. Just like the rest of us.
Which is baloney, as has been demonstrated times without number. Muslims in Western society tend to be extremely demanding, extremely pushy, constantly insisting on extreme accommodations and attempting overtly to change their host society fairly radically. I discussed this at length in this post, though even there I couldn't fit everything in, and some instances have come up since then.
It is on the basis of his misconception of Islam in the West that Schmitz declares airily that anti-sharia laws are completely pointless. He even goes so far as to say that they stem from bigotry. In fact, he throws around the term "bigot" and its cognates fairly freely for someone who is allegedly conservative. Apparently on Schmitz's view the problem isn't just, specifically, anti-sharia laws. Anybody who thinks Islam and Muslims in large numbers in our midst present a special problem for Western societies is a bigot. Which about tells you how deep and well-informed his entire approach to the issue is.
I wanted to note, in particular, Schmitz's shallow approach to the New Jersey case in which a husband repeatedly committed spousal rape, which he justified on the grounds that "this is according to our religion." Initially a judge (whose name I haven't been able to find easily) refused the wife's request for a restraining order, arguing that the husband was not guilty of criminal intent since he believed he was permitted to rape his wife.
The court believes that he was operating under his belief that ..., as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
The decision was overturned on appeal. My discussion of the case is here. (Search "sharia" on the page. Due to a hopefully temporary software glitch, the post is available only on this archives page, and comments are not available.)
Now here is how Schmitz dismisses the relevance of this case to anti-sharia laws:
In 2009, a New Jersey judge, in deference to his own reading of sharia, refused to grant a restraining order for a woman seeking protection from an abusive husband. The decision was overturned on appeal, not because the judge had misread sharia, but because he had misread American law, which trumps the terms of any private contract — whether it is made according to sharia, canon law, Halakhic law, or the whims of the two parties. The New Jersey Star-Ledger summed up how the New Jersey case showed the needlessness of anti-sharia measures: “In 2009, a Hudson County judge gave too much weight to the religious beliefs of a Moroccan man accused of sexually assaulting his wife. The decision was overturned on appeal, and now the convicted defendant, who lives in Bayonne, faces up to 20 years in state prison.” What we see here is a judicial error, not the vulnerability of American law to “creeping sharia.”
Ah, yes, a judicial error. How nice. A judicial error that just happened to be based on Islamic law regarding the requirement that wives be constantly sexually available to their husband. According to Schmitz, it simply doesn't matter that this "judicial error" was a result of a judge's attempt to be so culturally sensitive that he permitted spousal rape in deference to the husband's Islamic legal beliefs. Move along, folks. No sharia to see here.
Perhaps it is also relevant to point out that Italian judges committed a similar "judicial error" when they overturned the conviction of parents and a brother who severely beat the daughter of the family. They did it "for her own good," you see, not out of anger. And all that about tying her to a chair? See, she was threatening to commit suicide (because she was so miserable and afraid of her family), and that was why they tied her to a chair; a suicide prevention measure. Only thing is, that particular "judicial error" was committed at the level of the highest Italian court. So it wasn't overturned on appeal. Oops. I guess we'll just hope that type of "judicial error" that doesn't get overturned doesn't ever happen here in the U.S.
Among all the other things that Schmitz is unaware of, he seems unaware of the relevance of foreign cases to where this is all going--unaware of the Italian case, unaware of a very similar German case, unaware of the attempt to use "provocation" as a defense of honor killings in Canada, unaware of the fact that sharia councils in the UK clearly envisage the "marriage" of prepubescent girls. Schmitz doesn't even recognize that his entire view of Muslim presence in America should be changed by the very attempt to use such defenses, even if usually unsuccessful. Move along folks. That's there, this is here; only bigots think sharia could be a problem here.
But there's more even in America that Schmitz is unaware of. For example, he says nothing whatsoever about the repeated attempts by the City of Dearborn to stifle ordinary, peaceful, missionary conversations during the Arab Festival. If you just read all my posts on Dearborn you will find much about this. These egregious violations of the constitutional rights of Christians wishing to share their faith in Dearborn are obviously being done in deference to the Muslim idea (read, sharia) that proselytizing Muslims ought to be forbidden. This year, after a number of lawsuits (some still in process), the police at Dearborn are apparently behaving somewhat more reasonably. But watch this hot-off-the-press video in which a Muslim man makes it quite clear that he's just waiting for the day when sharia comes back to shut up those pesky Christians, who should go home and be Christians in private and not come and have peaceable conversations with Muslims. Y'know, that doesn't look like the kind of person with whom I want to make common cause for the sake of religious liberty. Not at all. Perhaps Schmitz should educate himself about such people and their influence in cities like Dearborn.
Nor does Schmitz seem to have heard about the American judge who thinks marching in a parade in a costume that insults Islam removes you from protections that would otherwise apply against (in this case, fairly minor) assault.
Now that we've established that Schmitz is information challenged about Islam in the West, what is the point of anti-sharia laws?
As I have said elsewhere, such legislation sends an important message--a message, to put it bluntly, that we are not the UK and that we are not going to defer to any system of "informal sharia courts." Nor is the statement that this is all unnecessary terribly interesting or relevant. There are plenty of times when existing law or precedent ought to address some issue but is not being interpreted to do so and can profitably be supplemented by a new law with a new legislative history to address the newer problem. We might call this the "this means you" aspect of law. A couple of examples: The Religious Freedom Restoration Act and the Michigan Civil Rights Initiative (which outlawed reverse-discrimination affirmative action). There is no reason why anti-sharia laws could not do the same: "Yes, we really mean that you can't interpret some foreign law so as to apply specially to a given case in the name of 'cultural sensitivity' and undermine the usual force and direction of law as it applies to that case."
This would have been yet one more reason, if such a reason were needed, for the judge in the New Jersey case to realize, "Oh, I better not even go there" on treating spousal rape by a Muslim differently from the way he would treat it for anyone else. I noted at the time that David Yerushalmi was a bit uncomfortable about the ponderousness of the appellate court in its argument that religious freedom precedents don't permit spousal rape. Yerushalmi apparently thought that a brisker, not to say brusquer, dismissal of such a ludicrous argument would have better communicated the fact that it is totally beyond the pale. My own charitable interpretation was that the appellate court was making a kind of dry legal joke by using argumentative overkill. But if Yerushalmi was right that there was something ominous in the lengths the appellate court had to go to in making this obvious point, a state anti-sharia law should make for a useful shortcut. In fact, I would say that it is at the appellate (state) level that anti-sharia bills will most come into their own--another string to the bow of lawyers who have reason to believe that their clients have been treated unjustly because of trial judge deference to Muslim beliefs.
But: If anti-sharia bills are to be most effective, more needs to be done. In particular, the energy and frustration reflected by their passage needs to be channeled into a larger understanding of the Islam problem in America. In other words, we need to fuel precisely the concerns that Schmitz and many others want to call "bigotry." And those concerns need to lead to a broader approach, of which anti-sharia bills can be only a part. As I said elsewhere,
Sharia is multifaceted and multidimensional. It's a much harder sell to talk about lots of Muslims not on-board with sharia. Functional sharia will as a matter of course result from the existence of large Muslim communities in the U.S. And judicial and police deference to sharia will, does, and can take the form of applying the law selectively, prosecutorial discretion in refusing to prosecute Muslims, designating crimes as accidents, designating non-crimes by uppity Christians as "disturbing the peace," refusing properly to police Muslim areas and protect Christians, and so on and so forth--all of which are virtually impossible to root out by any single or comprehensive legal approach.
[I]t seems to me that only comprehensive anti-Muslim immigration reform can stem the tide of sharia, specifically. Jihad, too, but sharia even more, because you just really cannot prosecute someone for, say, voting for Police Chief Haddad in Dearborn! Nor can you prosecute the Florida police department for negligence in the case of the death of this girl, even if they really were negligent. You have to stop the development of powerful, influential, Muslim communities.
To my mind, then, the real danger (if we should call it that) of anti-sharia bills is not that they will foster negative ideas about large numbers of Muslims in America but that they won't. The effect could be like that of a vaccination: "I'm safe now. I've taken care of that." It would be completely incorrect to believe that we can continue to allow Muslim enclaves to form in America and then counter the negative consequences of doing so with creative new laws. Moreover, let's remember: If judges are determined to be lawless and to defer to Muslim sensibilities, they will find ways of doing so. The New Jersey judge should have faced impeachment for such an outrageous ruling, but I'd be astonished if any such thing happened. An anti-sharia law could have made things brisker at the appeals level and is a good first move, but the problem we face with sharia is a problem all too much like corruption--only an ideological rather than a monetary corruption. And as everyone knows, corruption is as hard to root out of a legal and enforcement system as dandelions in a yard. I really find it difficult to believe that Italy, for example, has no legal safeguards against the outrageous ruling in the case of Fatima R. (the girl whose parents and brother beat her). The safeguards just didn't work, because the system was corrupted.
Anti-sharia laws, then, have a point, but their best and most important point is as a wakeup call to a larger problem that can be dealt with and prevented from growing worse only by a type of "immigration reform" that almost no one is talking about.