On July 21, 2010, Newt Gingrich, a former majority leader of the U.S. House of Representatives and at the time one of the Republicans competing in the primaries to be the party’s presidential candidate, gave a speech at the American Enterprise Institute, a conservative think tank, titled “America at Risk: The War with No Name.” Gingrich argued notably for the creation of a federal law prohibiting any use of Sharia in U.S. courts. He warned his listeners about “a fundamentalist political, economic, and religious movement that seeks to impose Islamic law or Sharia throughout every society in the world.”
1 In a documentary film with the same title produced by the group Citizens United, an organization “dedicated to restoring government to citizens’ control,” Gingrich decries the blindness of the federal government.
2 If the war is said to have “no name,” it is because the members of the Obama administration now refuse to use adjectives such as “Islamist” and “Islamic” to describe America’s enemies.
3 How does one win a war against an enemy that one refuses to name? To answer this question, the documentary offers testimony from people presented as recognized experts on Islam and terrorism, such as the oriental studies specialist Bernard Lewis; the neoconservative former ambassador to the United Nations, John Bolton; and neoconservative editorialists Frank Gaffney and Michael Ledeen. For all these witnesses, as for Gingrich, the enemy does have a name—radical Islamism—and its main feature is its devotion to Sharia.
Taking inspiration from this documentary, many political leaders, essayists, and activists also try to show how and why Sharia now represents one of the most urgent threats to the survival of the United States. The Oak Initiative is an organization of evangelical and charismatic leaders who seek to respond to the crisis they see traversing America by restoring “the core values that are based on biblical or kingdom principles and wisdom.”
4 On September 24, 2010, it disseminated on its website an interview with one of its members, Lieutenant General Jerry Boykin, a former deputy undersecretary of defense for intelligence (2003–2007) and a born-again fundamentalist Christian. He stated, “We need to realize that Islam itself is not simply a religion, it’s a totalitarian way of life. It is a legal system, the law of Sharia; it’s a financial system, it’s a moral code, it’s a political system, it’s a military system. Islam should not be protected by the First Amendment, especially when one knows that those who obey the diktat of the Koran are duty bound to destroy our Constitution and to replace it with Sharia law.”
5 Starting in 2010, such statements were freely repeated in the media and at political meetings, especially those of Republican candidates. In unison with Newt Gingrich and Michele Bachmann, a Republican presidential candidate momentarily in 2012, the Catholic conservative former senator Rick Santorum (R-Pa.) asserted at a campaign dinner speech in March 2011 that “jihadism is evil and we need to say what it is…. Sharia law is incompatible with American jurisprudence and our Constitution.”
6What is this so-called anti-Sharia movement that rose up in the United States around 2010 and where did it come from? It derives from the activism of a network of political actors, lawyers, conservative polemicists, think tanks, and lobbies all as hostile to the Obama administration as they are to Muslims and Islam. The antimosque movement was born from the encounter between grassroots organizers residing in particular neighborhoods and local communities and national conservative organizations. The anti-Sharia movement, though, was made out of whole cloth by a small team of individual players and organizations whose goal has been to push ever more rightward the political agenda of conservative Republicans. Newt Gingrich’s speech may be considered the inaugural moment of this movement before the American people, but the double denunciation of both radical Islamism and the naïveté of the Obama administration’s response to “global terror” has been a leitmotif of the Far Right conservatives since 2008. These alarmist themes were developed in congressional hearings held on March 10, 2011 under the direction of Representative Peter T. King (R-N.Y.), who served as chairman of the House Committee on Homeland Security. The hearings aimed to examine “the extent of radicalization in the American Muslim community and that community’s response,” with the goal of discussing forms of violence that are specific to Islam. Another goal was to denounce the inadequate commitment of Muslim Americans in fighting the war on terror. The anti-Sharia movement is defined by a precise objective: using legal measures in order to ban all reference to Islamic law from U.S. courts. But the stakes of this legal battle are, above all, political. The objective is to prolong the controversy over Islam in order to saturate the debate with arguments hostile not only to Muslims but, more importantly, to the Obama administration, the Democratic Party, and a certain conception of liberal democracy—and even toward certain conservative Republicans who are considered to be too moderate.
THE ANTI-SHARIA ORGANIZATIONS
At the base of this political and legal battle is a network of organizations that have been working for several years to build an argument hostile toward Islam and collect facts and documents likely to further their point of view.
One of the leading actors in this movement is the Center for Security Policy (CSP), a think tank created in 1988 and presided over by Frank Gaffney whose stated goal is “peace through strength.” Praise of American exceptionalism, warnings against attacks on national sovereignty, and admiring references to the Reagan legacy are at the heart of the CSP ideology. Islamic extremism is the new enemy, replacing the Communist enemy of the Reagan era: “We as a nation must also work to undermine the ideological foundations of totalitarianism and Islamist extremism with at least as much skill, discipline and tenacity as President Reagan employed against Communism to prevail in the Cold War.”
7 Gaffney, a deputy assistant secretary of defense under Ronald Reagan and an editorialist for conservative media such as the
Washington Times and WorldNetDaily, also hosts a radio show on Secure Freedom Radio. Since roughly 2000, he has made the fight against “Islamist totalitarianism” a centerpiece of his campaign to protect the Reagan legacy from the Democrats—and also from certain Republicans who are deemed to be too soft on Muslims. Besides relying on a committee of counselors and a set of academic advisers, the think tank is rather exceptional for also having a military committee composed of about ten retired generals and admirals.
8 The job of these three committees is to define a strategy to win the battle against radical Muslims and their moderate allies who seek to weaken the vigilance of American public opinion by posing as victims. Nonie Darwish, currently a senior fellow at the CSP, is a key figure in the promotion of this narrative. An American of Egyptian origin and the founder in 2004 of Arabs for Israel and a member of Former Muslims United, she plays perfectly the role of the disaffected-Muslim-woman-converted-to-Christianity, and her biography lends an air of authenticity, legitimacy, and credibility to her criticism.
9 Darwish is the author of two books that play on the most common stereotypes about Islam, which is presented as a bellicose, violent, conquering religion hostile toward women; she publishes a blog that includes sensational stories of female Muslims burned alive and Christian women forced to convert; and she is a regular participant in televised debates on Fox News. In the area of foreign policy, the CSP relentlessly denounces the Obama administration’s submissiveness toward international treaties and diktats of the United Nations and its inability to protect American sovereignty.
In 2010, the CSP published a detailed 177-page report that aims to explain why Sharia represents a grave threat to the survival of the United States. Directed by Frank Gaffney, its complete title is
Shariah: The Threat to America: An Exercise in Competitive Analysis: Report of Team B II.
10 The title alludes to a “Team B” report prepared in 1976 by a group of international security experts on the request of George H. W. Bush, then director of the Central Intelligence Agency. That report’s goal was to contest the “official evaluation” in intelligence circles concerning the offensive capacities of the Soviet Union as well as the politics of détente that it ostensibly defended. The authors of the Team B II report assert that, even though the Islamic threat has replaced the Communist threat, the credulity and incapacity of the Obama government to guarantee national security are analogous to the weaknesses of those in charge of the politics of détente a generation ago. Among the report’s authors, besides the research associates of the CSP, one finds editorialists from the conservative press and self-proclaimed security consultants, Lieutenant General Jerry Boykin, former FBI agent John Guandolo, former CIA director James Woolsey, and former assistant U.S. attorney for New York Andrew C. McCarthy III.
11 To prove that Sharia is incompatible with the U.S. Constitution, the report asserts that Islam is not strictly speaking a religion but is actually a political and legal code that aspires to subvert every existing political order: “It is a political, military, legal doctrine, rather than a religion as defined by American standards…. In reality, Islam is a revolutionary ideology and a program that seeks to transform the social order of the entire world, and reconstruct it in conformity with its principles and ideals.”
12 Adhering to Sharia is contrary to the spirit of America’s Constitution because it implies submitting one’s will to God and hence the renunciation of freedom: “Moreover, Sharia is a doctrine that imposes the rule of Allah over all aspects of society. More precisely, contrary to the Virginia Statute for Religious Freedom, and in a way absolutely incompatible with it, Sharia asserts that God did not create freewill but tied it to the will of Allah—the condition of human beings is submission to Allah and not freedom.”
13 It is thus urgent, the report’s authors believe, to protect the Constitution from Sharia. They also insist on the primacy of popular sovereignty: “Note that ‘We, the people’ create the Constitution; the Constitution does not create ‘We, the people.’ ‘The people’ as the founding entity was created by the voluntary act of consent to the principles in the
Declaration of Independence. In creating the Constitution to guarantee natural rights and liberties, the people acted from its sovereign capacity.”
14 This people, united and already constituted, may at any moment decide to suspend the guaranteed constitutional protections when faced with a threatening minority that is not part of “the people.” Here one is far from the liberal approach to constitutional democracy, which affirms equal rights for all and extends legal protections to religious minorities to shelter them from the chance winds of popular will.
Many other organizations and media personalities joined the CSP’s anti-Sharia campaign. Think tanks such as the Ethics and Public Policy Center (EPPC) worked on producing arguments and proof of the Islamic threat. Lobbies of conservative lawyers, such as the American Public Policy Alliance (APPA) and the American Center for Law and Justice (ACLJ) offer legal counsel and pressure politicians in various states. Grassroots organizations, both religious and nonreligious and of various sizes, seek to alert and mobilize local communities. Examples are the Concerned Women for America (CWA) and the Florida Family Association (FFA). These groups bring together former anti-Communist intellectuals and activists, diehard Reagan fans, American Copts and Maronites originally from the Middle East, and ordinary citizens still in shock after September 11, 2001, and the financial crisis of 2008. Despite their differences, all these organizations defend a single set of themes. Their aim is to protect America’s heritage of “Judeo-Christian” values against the dual threat of Islam and liberal secularism by militating, for example, in favor of obligatory prayer in public schools, teaching creationism, and a larger place accorded to religion in public spaces. The theme of freedom—religious and economic—occupies a central place in their thinking alongside ferocious criticism of the policy objectives of the Obama administration. This means, for example, favoring a tough stand on immigration and expressing fierce opposition to health-care reform—that is, the Affordable Care Act, maligned as “Obamacare” by its detractors. These organizations favor a minimalist government and express with bitterness that the American people’s constitutional rights are endangered by what they consider to be the antidemocratic legalism or “juristocracy” imposed by liberal Democrats. Within this discourse, a Europe invaded, terrorized by Islamic groups, and turned into “Eurabia” is cast in a central role as negative example. In order
not to go the way of Europe, these organizations believe it’s important to launch a preemptive war against the risk of Islamic infiltration. Organizations that defend Muslim American rights, such as the Council on American-Islamic Relations (CAIR) and the Muslim Public Affairs Council (MPAC), and are believed by the anti-Sharia camp to be in the pocket of the Muslim Brotherhood are thus a prime target.
Besides the network of anti-Sharia organizations, certain individuals have played key roles alongside Frank Gaffney—two of the most prominent being Brigitte Gabriel and David Yerushalmi. In 2003, Gabriel, an American of Lebanese Maronite-Christian origin, founded ACT! for America, an organization entirely devoted to the fight against “radical Islam.” The American Congress for Truth (ACT!) has many chapters in different states and abroad (including India, Israel, Canada, Argentina, and Norway). Presenting herself as “one of the leading national security experts in the world,” Gabriel perfectly fulfills the role of one who has known and undergone Islamic violence “from the inside” and whose testimony is thus all the more authentic. A former television news anchor, Gabriel arrived in the United States in 1989 after marrying an American. Since then, she has ceaselessly denounced America’s political correctness, which she says causes it to be blind to the true nature of Islam. Besides telling whenever asked the story of her Lebanese childhood and how she lived in terror until the day she was rescued by Israeli soldiers, Gabriel repeats over and over on her website, at demonstrations, and as a frequent television guest her hatred for Islam and her support of Israel. She is the author of several pamphlet-style publications hostile to Islam and appears regularly on Fox News to support claims that violence and conquest are inherent characteristics of Islam. The ACT! for America website currently claims to have “280,000 members organized in more than 890 chapters nationwide and 11 countries worldwide.” Gabriel has also hosted her own cable television show with Guy Rodgers, a former consultant to leaders of the Christian Coalition such as Ralph Reed, Pat Buchanan, and Pat Robertson.
On July 30, 2011,
New York Times journalist Andrea Elliot published a profile of David Yerushalmi, a Brooklyn lawyer and Hasidic Jew, titled “The Man Behind the Anti-Sharia Movement.”
15 Born in 1956, Yerushalmi lived until 2001 in the West Bank Israeli colony of Ma’ale Adumim and gained attention for his provocative remarks about women and blacks. In a 2006 essay, he lashed out at the culture of “political correctness” that prevents people from admitting the existence of genetically determined differences between races. Why, he asks, do “people find it so difficult to confront the facts that some races perform better in sports, some better in mathematical problem-solving, some better in language, some better in Western societies and some better in tribal ones?”
16 In the same essay, in a discussion of the American Founding Fathers, Yerushalmi seems to suggest that women and blacks should not have the right to vote: “There’s got to be a reason if the Founding Fathers did not give the right to vote to women or to black slaves. You may not approve or like this idea, but the founders of this country…certainly took it seriously.”
17Persuaded that the goal of Islam, unlike that of other religions, is conquest, Yerushalmi is particularly hostile toward two leading Muslim American organizations, CAIR and MPAC, which he believes are Trojan horses of the Muslim Brotherhood. He and his associates cite as proof of an alleged project to subvert the American Constitution a document made public during an investigation of the Holy Land Foundation for Relief and Development, a charitable organization based in Texas whose members were convicted in 2008 for sending funds to Hamas. This document explained that the strategy of the Muslim Brotherhood in the United States ought to seek “to eliminate and destroy Western civilization from the inside.” A list of twenty-nine Muslim American associations, including CAIR, also appeared in the document.
Yerushalmi has been highly criticized as a fundamentalist bigot by the Anti-Defamation League, a civil rights organization defending especially Jewish Americans. But besides being a member of CSP and a coauthor of its Sharia threat report, he also created his own organization to promote anti-Sharia legislation: the Society of Americans for National Existence (SANE). Its goal is to “reinforce the national existence of America by leading a new and thorough discussion that others fear or avoid.” Its website, the organization’s principal mode of existence, is open to members only for a fee of $150 per month. It mostly disseminates editorials in which Yerushalmi asserts the danger of Sharia, attacks Muslim American organizations, decries and discards the criticisms of his work made by liberal organizations, and offers advertising links to sites inviting Muslims to renounce Islam.
If all these organizations are well funded and well connected to conservative media outlets, especially Fox News, their power to harm ought not to be exaggerated. For one thing, the notoriety of each group is linked more to the charisma and prolixity of one or two media-made stars (Gaffney for CPS, Gabriel for ACT!, the Sekulows for ACLJ) than to well-organized and sustained activism. Certainly each group claims to have a large number of members and an abundance of local representatives. In some cases, such as CWA, the local “grassroots” do in fact exist, but for others this is more bald assertion than proven fact. Their dynamism depends, above all, on their high decibel level and their talent for occupying considerable airtime with simple and frequently repeated arguments that are relayed by cutting and pasting from one to another. Wajahat Ali, an expert at the Center for American Progress (CAP), said about the FFA initiative of David Caton against the reality show
All-American Muslim, “It’s literally one dude with a poorly made Web site, one fringe individual with an e-mail list, but by parroting the talking points created by this incestuous network, he’s triggered a national crisis.”
18 In truth, the anti-Sharia movement is not so much a stable, broadly based network of powerful organizations with an uncontested capacity to mobilize overwhelming force as it is a patchwork of certain key figures within the world of Christian conservatism (such as the Sekulows) and more marginal figures such as Gabriel, Pamela Geller, and Caton. As famous as they may be, thanks to their thirst for media attention, the leaders of the anti-Sharia movement are in a way second fiddles within the Republican Party and the conservative movement. From one group to another, one finds the same names among its leaders (Gaffney, Woolsey, Yerushalmi, Boykin). The serial quotations and the ceremonial circular deference create the illusion of power and of access to diverse sources of influence, whereas in reality it’s always the same small group of people who appear in every debate and at each conference. What’s more, as we shall see, the anti-Sharia movement was in a sense the result of failure. It’s because its leaders were unable to convince the true leaders of the conservative movement or those of the Republican Party or in federal agencies of the pertinence of their project that they were forced to turn instead to state-level legislative bodies and gamble on the anti-Washington reflexes of many state and local politicians. Yerushalmi openly admits that he changed strategies in the spring of 2008 after having failed to convince the Treasury Department about the danger of banking practices according to the rules of Sharia.
19
ANTI-SHARIA PRESSURE GROUPS
The Ethics and Public Policy Center (EPPC)
This think tank was founded in 1973 by Ernest W. Lefever, a specialist of moral and Christian philosophy, to be a guardian of the “Judeo-Christian moral tradition.” It seeks to defend “the major Western imperatives” such as respect for human dignity, individual liberty, and minimalist government. Permanent members of the EPPC include conservative Christian intellectuals and researchers. George Weigel, a Catholic theologian and the author of several books including a biography of Pope John Paul II, has been writing since 2005 about the threat of Eurabia and radical Islamism. Michael Cromartie, vice president of the EPPC and a former member (named by George W. Bush) of the Commission on International Religious Freedom (2004–2010), is the author of many books on the place of evangelicals in American politics. Republican Rick Santorum, a former U.S. senator and one-time presidential candidate, was a member of EPPC up to June 2011. He created within the organization the Program to Promote and Protect America’s Freedom, which is essentially a series of pieces by Santorum himself about radical Islam. Even though the EPPC is less virulent than the CSP in the anti-Sharia campaign, Santorum played a key intermediary role funneling ideas from the CSP to the EPPC in his numerous articles about the invasion of Europe by Muslim radicals, the danger of Islamic financing schemes, and the lack of religious freedom in the Muslim world.
The American Public Policy Alliance (APPA)
Created in 2009, this nonpartisan group says it wishes to work toward better protection of the Constitution and the sovereignty of the United States. A spokesperson for APPA, Stephen Gelé, a New Orleans lawyer, used his influence to get a law adopted in Louisiana that would prohibit all references to foreign law. For members of APPA, “transnationalism” is today the number-one threat to American security and sovereignty.
* Supported by Frank Gaffney, James Woolsey, and Jerry Boykin, this pressure group played an important role promoting the template of anti-Sharia legislation developed by the lawyer David Yerushalmi. While appearing neutral, its main goal is to forbid all references to Sharia. The organization seeks to apply pressure on state legislatures to alert them about the danger that Sharia represents for subverting the U.S. Constitution. The APPA is also engaged in the fight against liberal organizations such as the ACLU and CAP as well as Muslim organizations such as Karamah, whose analyses it systematically disputes or discredits.
The American Center for Law and Justice (ACLJ)
This conservative pressure group, led by Jay Sekulow and his son Jordan, uses teams of lawyers to intervene in many trials about religious freedom, abortion, and immigration. Since 2008, the privileged targets of the ACLJ have been fights against Obamacare, abortion, and immigration. The group also strongly backs Israel and Christians in the Middle East. The ACLJ has taken a particular interest in the persecution stories of Christian Iranian pastors and Egyptian priests, and makes detailed use of these accounts as evidence of the barbarism of the Muslim world and the incompatibility of Islam with religious freedom. With close ties to conservative media stars such as Glenn Beck and Sean Hannity, the Sekulows are a regular presence in the media, often on Fox News. The ACLJ also has offices abroad in Israel, Russia, Kenya, France, Pakistan, and Zimbabwe. Through various intermediaries, the organization attempts to influence international debates on the topic of religious freedom. It played a notable role, for example, in the European controversy about the presence of the crucifix in Italian classrooms. The group participates actively in current debates in many African countries about homosexuality and puts pressure on governments to adopt laws hostile toward homosexuals.
†Concerned Women for America (CWA)
Part lobby, part grassroots movement, this conservative group was founded in 1979 around six major themes: defense of family, opposition to abortion, religious liberty, education, the fight against pornography, and safeguarding American sovereignty. Present in all fifty states, CWA claims to have 500,000 members in five hundred local chapters, which lends the organization credibility as a grassroots organization of day-to-day activism. The group was founded by Beverly LaHaye, the wife of Tim LaHaye, an evangelical pastor and the author of the apocalyptic series Left Behind,
‡ originally to counter the feminist activism of Betty Friedan. The group lobbies members of Congress to maintain prayer in public schools; to discourage HPV vaccines (in the name of abstinence before marriage); and against rights for homosexuals, whom they consider to be morally deviant. CWA’s engagement in the anti-Sharia movement is not based on an emancipation agenda like one finds among European secular feminists fighting against head scarves and burkas. CWA rejects Sharia in the name of its desire to defend America’s Christian identity and its sovereignty. Liberal and republican (in the European senses of those terms) European feminists may attack certain Muslim symbols in the name of principles of secularism (in French,
laïcité) and equality, but CWA women entered the anti-Sharia battle by way of a particular discourse about sovereignty and culture. More discreet than the APPA at the national level, CWA is nevertheless very active on the local level. In every small city or town in America, CWA women are present at any and all demonstrations against mosques and Sharia.
The Florida Family Association (FFA)
This group, originally named the American Family Association, was founded in 1987 by David Caton, a former accountant and, according to his own testimony, former pornography addict turned born-again Christian. After years of activism against pornography and rights for homosexuals, he began to target Muslim Americans. Publishing an endless stream of hostile articles against organizations such as CAIR, he gained prominence in 2011 for his attack against the reality series All-American Muslim, which features the daily lives of individual Muslim Americans. Caton’s main criticism was that the show presents an overly normal image of Muslim Americans. The show’s lack of alarming stereotypes is precisely the danger because it risks weakening the proper vigilance of the American public. The FFA thus pressured over one hundred companies to withdraw their advertising support for the show.
The Religious Freedom Coalition (RFC)
This Washington-based nonprofit organization was created in 1982 to save America’s “Judeo-Christian heritage” by lobbying the public and members of Congress for the right to pray in public schools, and against abortion and gay marriage. On foreign topics, the group sounds alarms about the persecution of Christians in the Middle East and endlessly denounces the negative influence of the United Nations and Islamic law. The RFC’s president, William J. Murray, was the leader of an anti-Communist organization in the 1980s called Freedom’s Friends. In the 1990s, he established one of the first publishing houses to print Bibles in the former Soviet Union. The RFC was active in the fight against the Islamic center in New York and against the mosque in Murfreesboro.
The Sharia Awareness Action Network (SAAN)
This network is a coalition of individuals and organizations whose goal is to resist the threat of Sharia infiltration. The network includes most of the organizations just mentioned. In November 2011, SAAN organized the conference “Constitution or Sharia: A Freedom Conference” and invited the leaders of all its affiliated groups. Although the conference was originally to take place in the Hutton Hotel in Nashville, Tennessee, the hotel decided to break its contract with SAAN at the last minute out of fear of troubles that such a gathering might provoke. The conference was finally held at the Cornerstone Pentecostal megachurch in the small town of Madison, about twenty miles from Nashville.
A PRETEXT: THE NEW JERSEY AFFAIR
Feeling confident about the strong support coming from these organizations, the proponents of anti-Sharia legislation seized on a case being heard in a New Jersey court in 2010. The judge in the case had refused to issue a restraining order against a man of Moroccan origin who was accused by his wife, also of Moroccan origin and married by force at age seventeen, of repeatedly raping her. According to the victim, the husband reportedly said that such acts were in accordance with the Muslim religion: “The woman, she should submit and do anything I ask her to do.”
20 On June 30, 2009, the judge ruled in favor of the husband, who, he said, had acted without criminal intention but simply in conformity with his conscience and his religion. In June 2010, the first judge’s decision was appealed, and the reference to religious freedom was rejected by the Superior Court as a nonpertinent criterion: “The defendant’s behavior when he attempted to have nonconsensual sexual relations was undeniably intentional, no matter what his belief might have been about his religion permitting him to behave as he did.”
21 The Superior Court judge ruled that the first judge “was mistaken” when he excused the husband’s behavior out of consideration for his religious beliefs, and went on to issue the restraining order against the husband. For the anti-Sharia camp, this affair proved the reality of Sharia’s infiltration into the American judicial system. Such a generalization is surprising. Since the error of judgment of the lower court judge was corrected and his decision reversed by the appellate judge, the case seems to illustrate the good working order of the American justice system and not, as alleged, its submission to Islamic law.
In fact, many cases involving Muslim individuals or families where explicit references have been made to Sharia or Islam had up until then been handled by American courts with the strictest respect for American law and without causing the least problem. Indeed, up to that point Islam had been accorded little attention in legal debates about the First Amendment, the most heated disputes having actually been caused by claims coming from Christian groups. Generally speaking, in resolving these conflicts, the pragmatism of American judges outweighs ideology. Thus in the many cases involving the
mahr clause, a feature proper to Islamic divorce, one finds among American judges and lawyers neither Islamophobic presuppositions nor categorical refusals on principle to refer to Sharia but rather a concern to resolve the conflicts in each case individually by striking a balance between respect for the religious beliefs of the parties in conflict and respect for the First Amendment’s establishment clause.
22In other words, the anti-Sharia bills appear as a solution to a nonexistent problem. But that was beside the point for the anti-Sharia activists. For them, the very act of pronouncing the word “Islam” in an American court is a problem, and even proof of an Islamic threat. Theirs is a preemptive war. The guiding thought in this combat is not “We should respond to repeated, verified infractions against individual liberties” but rather “And what if, one day, Islamism manages to subvert the American Constitution and justice system?” Many anti-Sharia activists admit that the starting point of their involvement was not a genuine infringement of individual freedoms but imagining the establishment of an Islamic legal system on American territory. If the anti-Sharia movement is somewhat baffling, it’s more on account of its leaders’ mode of reasoning than their Islamophobic statements, which are mostly garden-variety slurs. After all, if one is willing to say that a purely fictional threat requires a reaction as firm as a real threat, then why not ask for preventive measures against a hypothetical invasion from outer space or against the future domination of America by China? What is surprising is not so much the virulence or absurdity of the anti-Sharia arguments but the increasing blurriness of the border between fiction and reality in public debates and in courtroom proceedings. For Sharia opponents, what matters most is affirming the right of the American people to be the proper guardian of the Constitution—against the wishful thinking and dilettantism of overly liberal judges and lawyers. “It’s wrong,” says Stephen Gelé, “to just accept that the courts generally get it right, but sometimes get it wrong. There is no reason to make a woman play a legal game of Russian roulette.”
23The Oklahoma referendum constitutes Act I—the first test case—of the anti-Sharia movement. Shortly before the midterm elections in November 2010, two Republicans, Senator Rex Duncan and Representative Mike Reynolds, proposed an amendment to the Oklahoma state constitution that would prohibit any reference to Sharia in Oklahoma courts. On Election Day, November 2, in a state where Muslims represent less than 1 percent of the population and where Sharia had up until then never been mentioned in any court, 70 percent of the people voted in favor of the amendment. “Question 755,” nicknamed “Save Our State Amendment,” whose aim was to modify the state Constitution’s article 7.1 (relating to the prerogatives of the courts), proposed the following changes: “The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”
24 The latter was defined very vaguely: “Sharia law is Islamic law. It is founded on two principle sources: the Koran and the teachings of Mohammad.”
Why was such an amendment proposed when the authors themselves agreed that there had never been any conflict linked to Sharia in any Oklahoma state court? In fact, the New Jersey affair is routinely cited as the proof of the imminent reality of the risk of subversion of American law by Islam, regardless of the fact that the “mistaken” decision of the first judge was reversed on appeal. In this alarmist scenario, Europe plays a central role as negative example. In an interview on MSNBC on June 11, 2010, Duncan described his amendment project as a “preventive strike”: “This is a war for the survival of America—it’s a culture war.” This war’s goal is to reassert America’s Christian values. Representative Reynolds, coauthor of the amendment, went on to add: “America was founded on Judeo-Christian values, it’s the basis of our laws and some people are trying to deny that…. I think people are becoming aware of the fate of our Christian values in our country, and they’re beginning to speak up.”
25After the election, on November 4, Muneer Awad, the director of the local CAIR chapter, filed a lawsuit against the state’s electoral commission. He asked that the amendment be declared unconstitutional on the grounds that it violates the First Amendment for several reasons. The changes would prevent the state of Oklahoma from making regulations to guarantee that businesses were not selling fake halal products to their customers. Practicing Muslims would no longer be able to have written in their wills the desire to be buried according to Muslim tradition. A couple would no longer be able to be married, beyond a civil union, according to an Islamic marriage contract, or to borrow money to buy a home in conformity with Islamic economic principles. These restrictions, Awad added, are all the more unacceptable since they target only Muslims. It is not prohibited to refer to canon law or the Ten Commandments, only Sharia. In other words, by preventing Muslims from freely exercising their religious freedom in many instances of ordinary daily life, and by “specifically” taking Islam as its target and not other religions, the Save Our State Amendment violates both the free exercise clause and the establishment clause of the First Amendment. It also violates the clause relating to the supremacy of the American Constitution, which affirms the priority of federal law over the laws of the states and requires that they apply the international treaties entered into by the federal government.
26On November 29, 2010, after a day of hearings, the district court judge in Oklahoma City, Vicki Miles-LaGrange, issued a temporary injunction against the electoral commission to prevent it from enacting the amendment.
27 Her decision shows that we are faced here with two opposing approaches to law. Those in favor of the state constitutional amendment see themselves as defending the will of the people. The latter must assert its right to proclaim the Constitution and stand up against the liberal elite of incompetent judges who endanger the nation’s sovereignty and the heritage of the Founding Fathers. On the other side, the judge reaffirms the principle of constitutional democracy, which protects the fundamental rights of minorities against the whims of the majority:
Throughout the course of our country’s history, the will of the “majority” has on occasion conflicted with the constitutional rights of individuals, an occurrence which our founders foresaw and provided for through the Bill of Rights. As the United States Supreme Court has stated: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
28In reply to those who protested against the antidemocratic character of this overturning of the result of a democratic election, the judge made the following statement: “While the public has an interest in the will of the voters being carried out, for the reasons set forth above, the Court finds that the public has a more profound and long-term interest in upholding an individual’s constitutional rights.”
29 In other words, the claims of those supporting the Save Our State Amendment notwithstanding, the majority that appointed itself sole arbiter to define and represent who the “people” would be does not always get its way and does not have unlimited rights. The amendment’s supporters immediately denounced the judge’s decision, seeing in it but one more proof of the contempt of judges for the popular will.
The use by the amendment’s supporters of notions of “injury” and “suffering” is characteristic of the populist mode of reasoning. As in the case of those opposed to the Manhattan Islamic center, the anti-Sharia activists refuse to countenance the rights of Muslims because it’s not about rights; it’s about the survival of America. In reply to Awad’s oral arguments, the defendant counters that the plaintiff (Awad) did not undergo any “injury in fact.” In other words, the imagined harm caused by Sharia in a hypothetical future on generations to come is considered as a more pertinent basis for action than the real and present harm caused to Muslims currently living in Oklahoma. In similar fashion, during the Ground Zero controversy, the painful memory of September 11 was presented as sufficient grounds for depriving Muslims of their right to build a community center. But ultimately this reasoning was rejected by the courts. The district court in Oklahoma City upholds, contrary to the defense’s views, that the injury is “concrete, particularized, and imminent” such that one may accept the legal case of Awad.
30On December 1, 2010,
however, the defendant’s side appealed the decision. But on January 10, 2012, the U.S. Court of Appeals for the Tenth Circuit ruled that the amendment drafted by Rex Duncan and Mike Reynolds was indeed unconstitutional, and it decided to definitively block its ratification.
31 The decision handed down by the court reiterates the arguments of Vicki Miles-LaGrange: respect for election results is essential, but the constitutional protection of minorities must be defended unconditionally: “But when the law that voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awad’s in having his constitutional rights protected.”
32 The judges also ruled that Question 755 is discriminatory because it explicitly singles out Islam and no other religion. The defense’s claim that all religions were in fact implied but only Sharia was mentioned as an example was rejected as contradictory, given “the amendment’s plain language, which mentions Sharia law in two places.”
33 The amendment as proposed stipulated that “courts shall not look to the legal precepts of other nations or cultures.” The defense was unable to convince the court that “other cultures” implies all religions and is not just targeting Islam. This reasoning does not stand up to scrutiny: “The amendment bans only one form of religious law—Sharia law. Even if we accept Appellants’ argument that we should interpret ‘cultures’ to include ‘religions,’ the text does not ban all religious laws.”
34 Unless the attorney general for the state of Oklahoma decides to appeal that decision, in which case the matter would be turned over for an eventual decision by the Supreme Court, the Save Our State Amendment may be considered definitively invalid.
AMERICAN LAW FOR AMERICAN COURTS
Although the Oklahoma controversy seems to end in defeat for the supporters of anti-Sharia legislation, they very quickly apply the lessons learned from this experience. Throughout this affair, legal specialists were elaborating a more presentable version of the legislation that does not specifically target Islam. David Yerushalmi, working on behalf of APPA, drafted a legislative proposal called “American Law for American Courts” (ALAC). The objective was “to protect the constitutional rights of American citizens against the infiltration and incursion of foreign laws and foreign legal doctrines, especially the Islamic law of Sharia.” As with the Sharia report put out by the CSP, the preamble of ALAC insists on the necessity of safeguarding the true heritage of the Founding Fathers, protecting the Constitution, asserting the people’s right over the Constitution, and strongly defending American sovereignty. In this combat, state legislative bodies “have a vital role to play to preserve these constitutional rights and the American values about liberty.” America’s exceptional status, recalls the preamble, rests on its dedication to freedom of religion, freedom of speech and of the press, the right to due process, the right to privacy, and the right to have and to bear arms. While holding back on making any explicit reference to Sharia, ALAC proposes the following declaration: “The [general assembly/legislature] finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States.”
35 This “model legislation,” even if it seems less openly in violation of the First Amendment, remains problematic and is arguably senseless. One may ask what the point is of a law that reaffirms what exists already—the impossibility for any state to pass a law that would violate the Constitution. Furthermore, while the law first speaks simply of “foreign law,” it goes on to specify in the second paragraph the interdiction of applying a “foreign law, legal code or system.” The latter are more precisely defined as a “system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals.” This wording seems, however, to be in conflict with the Constitution’s supremacy clause and in contradiction with the last paragraph of the legislative proposal itself, which states: “This statute shall not be interpreted by any court to conflict with any federal treaty or other international agreement to which the United States is a party to the extent that such treaty or international agreement preempts or is superior to state law on the matter at issue.”
The anti-Sharia camp immediately adopted this model legislation as the most effective instrument in the legal battle against an “Islamic invasion.” Senator Michael Fair in South Carolina said he had learned the lessons from the Oklahoma case and was careful to leave out any mention of Sharia from his bill. Senator Phil Jensen, the initiator of a similar bill in South Dakota, did the same.
36 In Arizona, the wording of a first bill went as far as explicitly banning from its courts all reference “to principles of any body of sectarian religious law” including “the law of Sharia, Canon law,
halakha and karma [
sic].” After this early version of the bill was rejected, one with a more neutral appearance, modeled entirely on the ALAC template, was passed on April 12, 2011. A similar law, also following the ALAC template, was passed in Louisiana on July 2, 2010. In Tennessee, a bill that directly attacked Islam and Sharia was withdrawn and replaced with a more neutral one. The first bill, proposed by Senator Bill Ketron and Representative Judd Matheny, wanted to make referring to Sharia a felony punishable by up to fifteen years in prison. It defined Sharia as a major threat that “obliges all of its members to actively and passively seek to replace the constitutional American republic, including the representative government of this state, with a political system founded on Sharia.”
37 The bill that finally passed was based on the model legislation proposed by David Yerushalmi.
As of January 2016, laws have been passed in the states of Louisiana, Tennessee, Arizona, Alabama, Florida, North Carolina, Oklahoma, and Texas—and bills that take the ALAC wording as their model are under discussion in more than twenty states, even if the anti-Sharia movement may appear to be losing steam.
38 An anti-Sharia bill was withdrawn in New Jersey after resistance from Muslim and civil rights organizations. In 2011, similar bills were set aside in Arkansas, Maine, Texas, and Wyoming. Others are near to being abandoned in Georgia, Indiana, Iowa, and Mississippi, although some could still return because the movement has proved to be quite resistant. In March 2012, South Dakota governor Dennis Daugaard, under pressure from anti-Sharia activists, signed a law that followed the ALAC model. And similar laws are on the verge of passing in Kansas, Oklahoma, Florida, and Alaska.
The debates that have taken place in all these states since 2010 and the changed strategy after the Oklahoma defeat demonstrate that the anti-Sharia movement is well organized if somewhat fumbling, and yet is capable of adjusting its strategy on the fly in reaction to its adversaries’ moves. It also pursues multiple political, legal, and media objectives, all simultaneously. This is why the anti-Sharia legislation advocates do not shy away from bills as grotesque as the one in Arizona and consider the decision of the appeals court in Oklahoma as only a setback, not a defeat. For them, what counts is keeping the debate over Sharia and Islam front and center and having the fight continue. They also embrace the technique of first proposing extreme, far-out bills and then eventually backing down somewhat so as to more easily reach a compromise on legislation that is still problematic but looks more reasonable and acceptable in comparison. Thus it’s always a winning strategy on all fronts—politically, legally, and in the media. What may look amateurish and clueless often turns out to be proof of their resistance and resourcefulness. Commenting on the appeals court decision on the Oklahoma referendum, Frank Gaffney simply reaffirmed the importance of the anti-Sharia movement. He concedes that the amendment as worded could only end up being rejected. But fortunately, he adds, the model legislation developed by Yerushalmi would allow the fight to continue and avoid such setbacks. What counts is “to pursue in Oklahoma and elsewhere across the country other means of achieving the same end—namely, protecting American citizens from foreign laws whose application in U.S. courts would violate their constitutional rights or state public policy.”
39CHANGING THE CONDITIONS OF COMPROMISE
Asked many times to give concrete examples that prove the need for an anti-Sharia law during hearings of the North Carolina House of Representatives in April 2011, Representative George Cleveland ended up saying, “I don’t have any precise examples in mind.” In March 2011, in the House of Representatives in Missouri, Representative Paul Curtman gave the same answer to a similar question: “I don’t have the details with me today. But if you go to…uh, I can’t remember the name of the website. But any Google search on the use of International law in the United States in state courts will give you examples.”
40 In almost every state where anti-Sharia laws have been discussed, senators and representatives in favor of the legislation have admitted that they know of no cases where reference to Islamic law in American courts had caused a problem. Thus as the ACLU and MPAC have noted, these bills offer “a solution in search of a problem.”
41Not only are anti-Sharia activists often incapable of proving the reality of an Islamic threat, but the few cases they do put forward to strengthen their argument prove in fact exactly the reverse of what they allege. In a report published in May 2011, the ACLU considered one by one the cases cited by the APPA as proof of the existence of an Islamic threat.
42 For example, the APPA cites the case of
Shaheed Allah v. Adella Jordan-Luster. In 2007, a Muslim prisoner filed a complaint against the prison administration where he was held because halal meals were not served every day, which, he explained, prevented him from freely exercising his religion. The APPA sees this as a clear sign of the subversion of American law by Sharia. But according to the ACLU, if this case proves anything, it’s exactly the opposite because, first, in this case the court rejected the prisoner’s complaint and sided with the policy of the prison, which held that serving meals without pork was sufficient as respect for the religious constraints of the prisoner. Second, even if the court had sided with the prisoner, further accommodation would not have been contrary to American law. It would have been no different from measures that are regularly taken to satisfy certain dietary requirements of Jewish and Catholic prisoners.
But in the Sharia controversy, facts that actually prove the opposite of what they’re supposed to show can nevertheless be cited as relevant proof. A fact becomes proof not because it corresponds to the concrete reality of what happens in courtrooms but because it solidifies a fantastical edifice constructed in advance. Thus the question of what Sharia truly is—a definition that Muslim and liberal organizations seek to establish—like the question of what exactly happens in courtrooms, is of hardly any importance.
For the partisans of the anti-Sharia movement, what matters above all is to win what they call the “lawfare.” The term, derived from “warfare,” literally means “the legal battle” but here refers to the battle that uses law for political and ideological purposes. The passage or not of anti-Sharia laws is practically a secondary matter. The first goal is to create, sustain, and amplify the controversy and thereby elevate ever higher the threshold of Islam’s acceptability among the American people. David Yerushalmi stated in July 2010 that “if the law were to pass in all fifty states without any friction, it would not have fulfilled its goal…. The goal was heuristic; it was to push people to ask ‘What is Sharia?’”
43 Similarly, in November 2011, he insisted on the decisive character of this lawfare, which opposes “American patriots” and “the union of the Muslim Brotherhood and progressives.” Patriots must stand ready: “You’re going to get bloodied, but at the end of the day you hope to draw more blood than you’ve lost.”
44 The battle, he declared, will have negative consequences for Muslims and liberals no matter what the outcome. Because the more virulent and passionate the attack, the more difficult and costly will be the defense or counterattack of the opposing camp. If the general aim is to change the law, the specific tactics aim to change the behavior of the adversary:
You have to get ready to pursue trials against the organizations of the Muslim Brotherhood. The latter will have to calculate the costs of such trials, and what impact it will have on their public image, how much it will cost in legal fees, and how long they will be held up in court. This calculation by the bad guys will force them to change their behavior, just as it changes ours. The good guys often give up writing a book, change an editorial, or use a different term, all out of fear of being taken to court. The same calculation will take place in the camp of those who adhere to Sharia.
45While most Muslim organizations and liberal groups are still motivated by the ideal of rational deliberation founded on a rule-governed exchange of arguments, the anti-Sharia camp has a warfare mentality where each side adjusts its strategy according to the moves of the opponent, and one speaks of spilling blood on behalf of the good cause. While Muslims and liberals organize conferences and debates about “what Sharia is,” the anti-Sharia movement organizes aggressive coaching sessions where the goal is to develop, fine-tune, and deploy adequate tactics. Yerushalmi gives his audience advance warnings about the kinds of criticisms they will face: “You’re going to be attacked by the Muslim Brotherhood and progressive liberals. They will unleash their propaganda machine decrying ‘Islamophobia.’” The courts are a privileged site to counter this propagandistic narrative. They
provide a unique opportunity to change policies in a way that is more effective than grassroots activism…. Nothing attracts more attention than the dramas and testimonies in the courtroom…. That is the biggest advantage of a trial. In court, even if you have a progressive judge, the facts create a playing field. And once they are in the record, even if you lose—and then you take it up on appeal and create your appellate record—that then becomes the facts of the case, the law of the case, and even if at the end of the day the opinion or the judgment is against your client, that survives and can always be pointed to later on.
46Even in defeat, the anti-Sharia movement is always a winner in such battles, since its aim is to establish a dominant narrative and not to lay out convincing arguments. Whether it succeeds in passing laws—and it has succeeded in several states—it always succeeds in radically altering the terms of compromise within the public debate. By working to impose such a radical and unfounded narrative—“Sharia threatens the survival of the United States”—the movement achieves its two main goals. First, on account of having to devote so much time and money to endless court battles over absurd arguments, Muslim American organizations are left with few resources to pursue other goals, such as encouraging Muslims to engage in politics or civic affairs and educating the public about Muslims and Islam. Second, by responding to the accusations made by the anti-Sharia movement, the liberals and Muslims inadvertently legitimize somewhat the narrative of their opponents. It hardly matters that the fight is over an imaginary threat founded on specious reasoning—it still remains very difficult for the liberal and Muslim organizations to win this battle. Any utterance, any action can become a piece of evidence. If the Muslims say they don’t want to impose Sharia, it’s proof of their deceitfulness and their hidden agenda. If they say they do want to follow certain aspects of Islamic law, it’s proof of the reality of the Islamic threat. The general suspicion that the Muslim population has decided to subvert the very foundations of American law can only have a negative influence on more specific debates, such as over the building of mosques or over extending to Muslims certain accommodations similar to those granted to all other religious communities. The result is that the bar of acceptance of American Muslims has been placed much higher. They no longer only have to prove, like in 2001, that they are not terrorists; they must now answer to the widely held suspicion that being a practicing Muslim in and of itself represents a threat to the U.S. Constitution and American law.
ANTI-SHARIA OR ANTIGLOBALIZATION
At the base of the anti-Sharia project, one finds not so much a moral or religious vision but rather a set of defensive postures around a certain imagined conception of politics that combines constitutional populism, anti-elitism, “originalism” (i.e., legal literalism that believes the Constitution can and must be strictly interpreted the way it was first intended at the time of its ratification), and a binary approach to the world founded on the distinction between friends and enemies. The rhetoric about defending Judeo-Christian values failed to convince a number of Christian and Jewish leaders who denounced the negative effects for religious freedom in their communities of the anti-Sharia laws.
47 Nathan Diament, director of the Orthodox Union Advocacy Center, who earlier had contested the Islamic center in Lower Manhattan, expressed warnings about the negative consequences that ALAC’s prohibition laws could have on the Jewish religious tribunals known as
beit din and therefore the religious freedom of American Jews. These laws, he said, “are problematic particularly from the perspective of the Orthodox community—we have a beit din system, Jews have disputes resolved according to halachah. We don’t have our own police force, and the mechanism for having those decisions enforced if they need to be enforced is the way any private arbitration is enforced.”
48 Many organizations, such as the American Jewish Committee, joined forces with the ACLU to alert political leaders in various states about the liberty-killing effects that the anti-Sharia legislation would have on all religions.
The recurring link between Sharia and international law and then, in the ALAC template, the replacement of references to Sharia with “foreign law” reveal an antiglobal, antiliberal way of thinking as much as it does Islamophobia. According to the logic of the anti-Sharia movement’s leaders, respecting international law is not an obligation but a voluntary matter. References to the American Revolution and the Constitution as exceptional founding moments play a decisive role that allows a fresh claim for the sovereign authority of the people (whether the issue is Social Security, gun ownership, abortion, or obeying international treaties). The authority that undergirds this claim allows those making it to fight better against “this modernist pathology of legal regulation.”
49 According to this way of thinking, the politician’s fundamental question is about identity and sacrifice (“Who are we, and what must we do to remain who we are?”) and not about justice or contracts (“What should the law be?”).
50 This is why the arguments put forward by those opposed to the anti-Sharia movement, which prove that such legislation would violate the rights of Muslims as well as those of other religious communities, are so ineffective. The anti-Sharia leaders are operating within a logic based on the affirmation of will instead of rational deliberation. As Paul Kahn observes, “Sacrifice is always an act of will, not of reason. Its logic is that of the gift, which can never be demanded.”
51Within this mind-set, Europe plays an ambivalent role and is looked to alternately as a source of inspiration or as foil. The Old Continent is presented as the absolute negative example—what America risks becoming if it
does not resist the Islamic menace. Deploying ideas developed by the “Eurabia” theorists, the anti-Sharia leaders, just like the antimosque groups, claim that America is on the brink of collapse. The United Kingdom is invaded by Sharia tribunals, extremist groups threaten national security in France on a daily basis, freedom of expression is threatened by Muslim bigotry in the Netherlands, and so on. During the conference organized in Tennessee in November 2011, an entire panel was devoted to painting an alarmist portrait of the European situation. One participant, Paul Diamond, a British lawyer and member of the Christian Legal Centre, described in detail the numerous victories of Islam over the secular state but especially over Christianity.
52There is a striking resemblance between the strategies and arguments developed by those participating in the controversies against minarets, mosques, and the
niqab in Europe and the American arguments against Sharia and mosques. The Swiss campaign against minarets, led by the Democratic Union of the Center, was based on the same arguments used by Yerushalmi and his followers.
53 What mattered was creating a polemic and making noise, not engaging in argued debate. The Swiss artist who designed an Islamophobic poster was entirely frank about it when he declared, “We make posters and the other side goes to the judge. I love it when they do that.”
54 The antiminaret campaign rests on a prevention argument, just like the anti-Sharia campaign. It does not matter that there are really only a handful of minarets in Switzerland—they are to be seen as the first sign of an imminent invasion. Similarly, the Northern League opposed the construction of a mosque in Milan in 2010, claiming that it was a secret training camp for terrorists. More surprisingly, the anti-Sharia argument and strategy bears certain resemblances to the French controversy over wearing head scarves at school and burkas in public spaces. Even though in 2004 many American commentators rushed to interpret the veil debate as a French idiosyncrasy—an obsession of authoritarian, secular republicanism with legislating behavior—the anti-Sharia movement seems to invalidate the idea of this being exclusively a French thing. American calls for legislation (remember that the whole movement began with Newt Gingrich’s plea for a federal anti-Sharia law), for proper government action (“What is the state doing? We need laws that reflect the will of the people”), and the many declarations demanding that Muslim Americans “assimilate” all sound curiously “French.” Thus the anti-Sharia movement can be seen to exhibit a mind-set founded on a properly American political history, but one also observes increasingly formatted discussions of Islam in Europe and the United States that use the same model.
CREATING A BETTER ENVIRONMENT FOR CONSERVATIVE POLITICS
The opposition between the theological-political mind-set and the contract-based, liberal model is not, however, a point-for-point face-off between liberals and conservatives or Democrats and Republicans. If the leaders of the anti-Sharia movement relentlessly denounce the Islamic-leftist alliance, they are no less critical toward a number of conservative and notably Republican politicians. They seek to keep the pressure on to maintain the conservative wing as far to the right as possible and fight against what they describe as a dangerous centrist or even liberal tendency. Even though they have access to major financial resources and an undeniable capacity to attract media attention, the anti-Sharia leaders are actually on the margins of the conservative movement. Having been unsuccessful at selling their argument to the elite within their own political family, they have opted for another strategy. With the success of the Tea Party as inspiration, they too turned to grassroots public appeals in search of easy explanations and solutions as a way to cope with the lingering trauma of September 11. In the media, the anti-Sharia activists may claim to speak in the name of the entire conservative movement, but utterances at conferences and meetings tell a different story of important internal divisions. For example, the position of the Federalist Society, an organization of conservative judges, lawyers, and law studentsm was denounced by activists as much too moderate. The latter reject arguments that make a distinction between Islam as a religion and political uses of Islam. For the anti-Sharia movement, this distinction, defended by a large majority of conservative Republicans, is a trap. For them, Islam as a religion is intrinsically bad, dangerous, and hostile to America.
This explains why Frank Gaffney’s speeches are mostly devoted to criticizing the Islamophilia within the conservative camp. Considering himself the sole true heir to the Reagan legacy, Gaffney is capable of harshly attacking much more influential types such as Grover Norquist, an important figure of the conservative movement thanks to his work as a lobbyist and the founder and president of the antitax organization Americans for Tax Reform. Norquist is married to a woman of Muslim origin and has been involved in many initiatives to improve relations between ethnic and religious communities in order to not lose the Latino and Muslim vote to the Democrats. He was a vocal critic of those opposed to the Islamic center in Lower Manhattan, and he also opposed the anti-Sharia legislation template developed by the APPA.
55 As a result, Gaffney labeled him a “useful idiot” and an “agent under Islamic influence” and close to the Muslim Brotherhood in the United States. The acrimony became especially harsh due to Norquist’s support for his friend Souhail Khan, a Muslim American of Indian origin and professor of political science at the University of California, Berkeley. Khan had been an aide and spokesperson for Representative Tom Campbell (R-Calif.). In that role, he had worked on issues of religious freedom, the right to bear arms, and the reform of affirmative action policies. Khan is active in organizations such as the American Conservative Union and the Council for National Policy, a powerful network of conservative groups, but he’s also an associate member of the Institute for Global Engagement in charge of Islamic-Christian dialogue. In February 2011, during the annual meeting of the Conservative Political Action Conference, a major gathering of American conservatives, Pamela Geller, David Horowitz, and Gaffney accused Khan and Norquist of working for the Muslim Brotherhood.
56 Thus, for these radical conservatives, besides their denunciation of the liberal Democratic establishment, they wage war on their own camp to extend the competition for the Reagan mantle and to keep the political agenda and the rhetoric of conservatives as far to the right as possible.
In the minds of many conservatives who occupy powerful positions, the Islamophobic tactic is destined to fail and, moreover, seems rather irrelevant. At the Conservative Political Action Conference, Norquist called on the Right to distance itself from the Islamophobic discourse, claiming that it went against the Reagan legacy and was politically counterproductive. Similarly, in a press conference in August 2011, New Jersey governor Chris Christie explicitly defended Sohail Mohammed, a Muslim American lawyer who he had nominated to be a state judge. This nomination provoked a controversy in conservative ranks, with a number of commentators accusing Mohammed of having links to extremist Islamic networks. Questioned about the anti-Sharia legal initiatives and the alleged links between the judge and radical movements, Governor Christie expressed his exasperation with Gaffney and his followers: “Sharia law has nothing to do with this at all. It’s crazy. It’s crazy. The guy’s an American citizen who has been an admitted lawyer to practice in the state of New Jersey, swearing an oath to uphold the laws of New Jersey, the constitution of the state of New Jersey, and the Constitution of the United States of America.”
57 There is no clearer way to say how annoyed many conservative Republicans have become with the anti-Sharia movement.
EFFECTS ON THE RELIGIOUS PRACTICES OF MUSLIM AMERICANS
This whole controversy has had immediate tangible effects on the daily life of Muslim Americans and their strategies to integrate into public, civic, and political life. Anti-Sharia activists force Muslim organizations like CAIR and MPAC to spend large amounts of their resources (time, money, expertise, energy) countering the efforts to prohibit Islamic law, answering accusations claiming affiliation with extremist groups, and correcting erroneous or caricatural representations of Islam. A Muslim American finds himself having to be the spokesperson for “the Muslim world” and forced to account for every negative news story associated with Islam anywhere in the world: an honor crime in London, the treatment of women in Afghanistan, female genital mutilation in Africa, polygamy, and so on. But in making statements on all these matters, Muslim Americans are indirectly letting stand a definition of Islam that they do not necessarily agree with, a vision of Islam that gives scant recognition to it as a religion defined above all by faith, interiority, sincerity, and where the Islamic community’s symbols, customs, and habits are considered at most anecdotally. In fact, to contest the literalist, scriptural approach of the anti-Sharia activists, which seeks to apply over a diverse Muslim American population a single fantastical definition of Islamic law as a juridical and political code of conquest, Muslim Americans have ended up defending an opposite definition of Sharia as a simple spiritual moral code of personal good behavior. This explains why the legal scholar Intisar A. Rabb would say in an interview,
We have never had a threat to our democracy from the long-time religious practices of Muslims in America. I think in part that stems from the nature of Muslim religious practice in this country—it is more of a private religious matter than a very public iteration…. There are many who claim to speak for Sharia. In Islam there is no church akin to the Catholic Church. There is no pope. With so little hierarchy, you get a very diffuse, Protestant-like view of what Islamic law means in the religious lives of individual Muslims and communities.
58To answer accusations made against them, Muslim Americans tend to reinforce the distinction between, on the one hand, political Islam or “Sharia Islam” and, on the other, “spiritual Islam” of a “Protestant” style that conforms to American culture. This opposition between a religion of faith and interiority and a political religion is at the heart of most debates about Islam since 2001. Muslim Americans have become trapped in a way by the terms of a debate that were defined by the anti-Sharia activists. Any effort to doubt the truth or usefulness of this opposition is also immediately seized on as proof of culpability or duplicity. But in trying to establish their good faith, in all senses, by proving that American Islam does meet the criteria of a good religion—spirituality, interiority, faith—the Muslims wind up adding to the weight of this type of argumentation in public debates. In a context of hysteria, it’s impossible to have nuances be heard or to explain, for example, that one’s attachment to a literalist reading of sacred texts or to a form of orthopraxy does not necessarily mean that one wishes to subvert the Constitution.
It should be noted that Muslims are not the only ones forced to submit to the hegemonic character of this argumentative strategy. Mormons, among others, are regularly the object of attacks and suspicion for the same reason as Muslims. Given this vision of the world founded on a distinction between good and bad religion, the association of faith with a certain number of obligatory practices and with a particular form of socializing is perceived as a danger. But because of the September 11 attacks, the more recent arrival of most Muslim immigrants, and the large amount of ignorance about Islam in the general public, Muslims have to put up with the negative effects of their approach to religiousness more than others.
Moreover, those who take the side of Muslims adopt the same perspective. To reject the argument of those in favor of the Oklahoma amendment, Judge Vicki Miles-LaGrange defined Sharia as a faith and a tradition disconnected from any obligatory legal dimension:
Based on this testimony, the Court finds that plaintiff has shown “Sharia law” lacks a legal character, and, thus, plaintiff’s
religious traditions and faith are the only non-legal content subject to the judicial exclusion set forth in the amendment. As a result, the Court finds plaintiff has made a strong showing that the amendment conveys a message of disapproval of plaintiff’s faith and, consequently, has the effect of inhibiting plaintiff’s
religion.
59By upholding this opposition between religion as faith and political religion, the discourse of intellectuals and liberal lawyers of all religious backgrounds reinforces a certain “teleological” conception of democracy and of the relation between religions in America. According to this narrative, all minorities were first the object of suspicion and attacks, but by progressively adapting to American culture, they were finally able to put these suspicions to rest.
Paradoxically, the anti-Sharia movement has also led to some good things for Muslims. If the strategy of seizing every occasion to blacken Islam and Muslims in the hope of gaining something by it brought the anti-Sharia movement a lot of publicity, it also seriously compromised what little credibility its leaders had. The anti-Sharia movement also contributed significantly to placing the defense of Muslim rights nearer the top of the agenda of many organizations, liberal or not. Given the extreme character of militant anti-Muslim criticisms, their adversaries were forced to stake out their position more clearly and engage more forthrightly in the defense of Muslim rights. Left-leaning think tanks such as CAP, important civil rights organizations such as the ACLU and the Southern Poverty Law Center, journalists, and ordinary citizens all took up the Muslim cause. Within the Republican Party, certain influential figures such as Chris Christie and Grover Norquist denounced the excessive and unjust character of the whole anti-Sharia undertaking. Jewish and Christian religious authorities also lent their support to the Muslims.
But what this controversy reveals most of all is the striking contrast between the sphere of political discourse and activism and that of law. One may have witnessed an unfurling of verbal violence toward Islam, but one can also observe an unwavering attachment among American judges to constitutional principles and the legal protection of minorities. The role of the latter is all the more decisive and the court decisions all the more intriguing given that the populist mind-set bent on “originalism” and antiliberalism seems to hold a privileged place in public debates. The word “liberal” seems most often to be an insult, and bringing up the notion of equality is enough to get one labeled a socialist. The American situation is in a sense the opposite of the European controversies over Islam. In the United States, the theological-political mind-set, founded on ideas of will and sacrifice, seems to dominate in the public sphere; yet it does not have a direct influence on the law and the justice system, which are the best allies of Muslim Americans. In contrast, the contract-based norms of liberal political theory in Europe are much more influential in public debates. Even if the attacks and criticisms against Muslim symbols and places of worship are numerous in Europe, one sees less tolerance in their public debates for the far-fetched arguments that American anti-Sharia activists resort to. The rejection of the display of religious symbols in public continues to be argued for in the name of principles such as equality, emancipation, freedom of expression, and the republic. But whether it is head scarves, burkas, or minarets, Muslims in Europe have not been able to use the law to defend their interests as effectively as they have in the United States. All the national legislatures may protect freedom of speech and religious practice, but European Muslims are much less likely than American Muslims to go to court to protect their rights. Beside the problems linked to the acceptance of religious symbols in various public spaces, disputes over discrimination in the workplace, for example, are numerous and often still unresolved. Given the wide diversity of situations that exist across different countries in Europe, the European Union continues to grant each member state considerable “freedom to choose” when it comes to applying the directives set down to protect the rights of religious minorities.
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