A First Amendment Analysis of Anti-Sharia Initiatives

June 21, 2012 by the Muslim observer http://muslimmedianetwork.com/mmn/?p=11355

By Asma Uddin, Legal Fellow and Dave Pantzer

Executive Summary

Ten years after September 11, 2001, the American Muslim community continues to be surrounded by a fear created and promoted mostly by a small group of anti-Muslim organizations and individuals. Collectively, these groups have spread their message in twenty-three states through books, reports, websites, and blogs. Other anti-Islam grassroots organizations have utilized this propaganda to “educate” their constituency. The Center for American Progress defines Islamophobia as an “exaggerated fear, hatred, and hostility toward Islam and Muslims that is perpetuated by negative stereotypes resulting in bias, discrimination, and the marginalization and exclusion of Muslims from America’s social, political, and civic life.” This Islamophobia movement’s ability to influence politicians’ talking has made mainstream that which was once considered marginal, extremist rhetoric.

The impact of the Islamophobia campaign upon the American public’s perception of Islam and Muslims has been very negative. Approximately half of all Americans hold an unfavorable view of Islam. To date, dozens of bills have been introduced in more than half of the states to ban Sharia and/or international law. Some of these bills are overly broad, and some in essence would outlaw any organization that adhered to any Islamic jurisprudential school. The Muslim community pushed back, specifically because the regulations on common activities such as how to wash before prayer or how much money to give to the poor emanate from these same schools of thought and would cause great restrictions on their ability to practice their faith.

This report describes the broader climate of anti-Muslim sentiment, as promoted by anti-Islam grassroots organizations, and examines the various manifestations of this hate in light of the First Amendment. More specifically, this report analyzes the anti-Sharia bills and ballot measures proposed by numerous states and determines the extent to which they comply with free exercise and establishment principles and jurisprudence.

Key Findings

The American legal system has built-in safeguards

The crucial feature of any kind of arbitration is that an arbitrator, whether religious or not, has no ability to enforce the arbitral decision; only state or federal courts have that power. Moreover, there is an array of carefully crafted safeguards in place to protect individuals. For example, arbitral decisions are annulled when there is evidence that the arbitrator completely disregarded the law or when the arbitrator refused to consider material evidence. Courts also review the arbitral decision to ensure that arbitrators are neutral, that the resulting arbitral decisions are neither grossly unfair nor undermine public policy, and that the parties agreed to take part in the arbitration of their own free will.

The anti-Sharia laws violate constitutional principles

The First Amendment to the American Constitution includes two Religion Clauses, the Establishment Clause and the Free Exercise Clause. Together, these Clauses provide guidelines for the relationship between the government and religion.

For one, the government may not officially choose among religions, or between religion and non-religion, in creating law. A significant purpose of the Religion Clauses is to protect religious groups from the overreaching of the state. They protect minority religions from state interference, which could arise where a religious (or secular) majority uses the democratic process to punish a minority, and they protect all religions, popular or unpopular, from state encroachment into purely religious matters. Moreover, the government may not generally prevent a person from believing and advocating a religious message; nor may the government prevent behavior simply because it is religious in nature.

Oklahoma’s “Save Our State Amendment,” the only anti-Sharia initiative to be challenged in court thus far, is a good example of how these laws violate the above-mentioned constitutional principles. The legislative history and the actual text of the Amendment make clear that its purpose is to treat Muslims differently than members of other faiths—it seeks to outlaw use of Sharia principles but does not mention principles of any other faith. It also places numerous burdens on Muslims’ religious exercise. For example, if the Amendment were to become law, it would be impossible to enforce a will that is based on Sharia principles or to engage in Sharia-based arbitration. This unequal treatment of Muslims and burdens on their free exercise contradict core Religion Clause principles.

Broader Implications

When religious freedom is limited for one group, it necessarily affects religious freedom for all groups. Although anti-Sharia measures name Sharia specifically, if allowed to stand, they can limit the freedoms of Christians, Jews, and other faith groups in the United States who turn to religious arbitration as the preferred method of dispute resolution.

Recommendations

1. Clarify the meaning of Sharia: The American Muslim community should engage the broader public on Sharia’s meaning and role. It should articulate what this word means generally and what it means to them specifically—that is, the articulation of the concept should not be merely theoretical but explained in concrete terms.

2. Differentiate Sharia from laws in Muslim-majority countries: Even more to the point, the American Muslim community should differentiate the ways Sharia is applied in differing cultural contexts. It is important to emphasize that the way it is applied in some Muslim-majority countries is very different than what is possible, or even preferable, in the American context. How does the American legal and social framework shape the application of Sharia law?

3. Disseminate information on religious arbitration and the First Amendment: Legal think tanks should organize lay-accessible information sessions on the First Amendment and religious arbitration. Many Americans are unaware that religious law is incorporated into the American legal system. How does this work in the case of Sharia? In the case of other religious laws? Americans need answers to these questions.

Abe Foxman: Shout Down The Sharia Myth Makers

(Community Matters) “The threat of the infiltration of Sharia, or Islamic law, into the American court system is one of the more pernicious conspiracy theories to gain traction in our country in recent years.”

- proud & appreciative of Abe and ADL

Op-Ed: Shout down the Sharia myth makers

By Abraham H. Foxman · August 10, 2011

NEW YORK (JTA) — The threat of the infiltration of Sharia, or Islamic law, into the American court system is one of the more pernicious conspiracy theories to gain traction in our country in recent years. The notion that Islam is insidiously making inroads in the United States through the application of religious law is seeping into the mainstream, with even some presidential candidates voicing fears about the supposed threat of Sharia to our way of life and as many as 13 states considering or having already passed bills that would prohibit the application of Sharia law.

Louisiana and Tennessee were among the first to approve such measures. The bills were based on model legislation issued by the American Public Policy Alliance, an unabashedly anti-Muslim advocacy group that defends the legislation as seeking to “protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Sharia Law.”

When the legislation was introduced in the Tennessee state Senate in early 2010, the bill defined Sharia as a “legal political military doctrine and system adhered to, or minimally advocated by, tens of millions of not hundreds of millions of its followers around the world.” In defense of the bill, state Sen. Bill Ketron said it “deals solely with a single part of Sharia that is strictly political in nature,” and “in no way inserts itself into the religious laws of Islam.”

The language was nearly identical to that of similar bills considered in other states, some of which were thinly disguised in terms of protecting against “the application of foreign law.”

All of this anti-Sharia activity has come despite the complete absence of evidence of the unconstitutional application of foreign or religious law in our judicial system. It has also come with a great deal of political handwringing — and myth making — about the threat of Sharia overtaking this country. This has led, in turn, to a false perception among a growing number of Americans that Sharia is a very real threat to our way of life and constitutional freedoms.

In fact, these legislative efforts are the proverbial solution in search of a problem. The separation of church and state embodied in U.S. and state constitutions prohibits our courts from applying or considering religious law in any way that would constitute government advancement of or entanglement with religious law.

But the anti-Sharia bills are more than a matter of unnecessary public policy. These measures are, at their core, predicated on prejudice and ignorance. They constitute a form of camouflaged bigotry that enables their proponents to advance an idea that finds fault with the Muslim faith and paints all Muslim Americans as foreigners and anti-American crusaders.

It is true that Sharia is being used elsewhere around the world in dangerous ways. While Sharia law can address many daily public and private concerns, it is nonetheless subject to radical interpretation by individuals or groups who subscribe to a more puritanical form of Islamic jurisprudence. Some individuals try to interpret Sharia law for their own radical agendas. It raises more serious concerns when it comes to implementing Sharia law in its entirety, as can be seen with the examples of Iran, Saudi Arabia and the Taliban. But that certainly doesn’t apply to America, where concerns about a “creeping Sharia law” are the stuff of pure paranoia.

If the hysteria over Sharia law continues to percolate through our political and social discourse, there is bound to be unintended consequences.

As we approach the 10th anniversary of the 9/11 attacks, in an uncertain economy with millions of Americans still out of work, we also face the prospect of a political season in which more political candidates may be tempted to invoke this mythological threat in an effort to pander to bigotry and fear, and to score political points.

We stand at a crossroads in American society. We have the option of heading down a path toward a greater tolerance of anti-Muslim xenophobia and fear of the “stranger in our midst,” or we can rededicate ourselves to the ideal of an America that is open and welcoming to immigrants as well as minority groups who have been here for decades. Let us hope that the better nature of America will enable us to proceed down the second path and reject those who seek to divide us for political gain, or those who wish to stereotype and scapegoat an entire people because of their religious faith.

We should never diminish the very real threat of terrorism motivated by Islamist fundamentalism coming again to our shores. But as responsible, free-thinking Americans we must be careful to distinguish between the true threats to our freedoms, and identifying their sources, and those who loudly declaim against phantom threats that don’t really exist.

Abraham H. Foxman is national director of the Anti-Defamation League and author most recently of “Jews & Money: The Story of a Stereotype.”

Sharia articles first week of March 2012

‘Anti-Sharia' Bill Blasted as Unconstitutional, Prejudicial

Councilman Bill Peduto blasted the bill, which would prohibit "the application of foreign law which would impair constitutional rights." He said it is based on an "anti-Sharia law" bill that was struck down by federal courts in Oklahoma.

"The bill that is being considered by Pennsylvania State Legislature caters to bigotry and prejudice," said Peduto. "Its basis is unconstitutional. It goes against the wishes of our founding fathers."

http://www.essentialpublicradio.org/story/2012-03-06/%E2%80%98anti-sharia-bill-blasted-unconstitutional-prejudicial-10387

……………..

Minn. Shari`ah Bill Dropped, Muslims Happy

MINNEAPOLIS – Facing a strong Muslim opposition, a Republican lawmaker has withdrawn plans for introducing a bill to ban Islamic Shari`ah in the mid-western state of Minnesota, a move that pleased the Muslim minority."It was never my intent to introduce legislation that was being targeted to any one group," Republican State Senator Dave Thompson said, CBS Minnesota reported on Monday, March 5.

http://www.onislam.net/english/news/americas/456102-minn-shariah-bill-dropped-muslims-happy.html

. . .

A misguided Minnesota anti-sharia bill

Whether wittingly or not, Thompson found himself caught up in the anti-Muslim antics of David Yerushalmi, a nationally known anti-Muslim activist. He was the force behind the deluge of bills introduced in more than 20 states last year opposing Islamic religious law known as sharia, which guides Muslim behavior, actions and spiritual life.

http://www.startribune.com/opinion/commentaries/141834243.html

. . . .

Jewish Divorce Caught in Sharia Law Fight

Florida Bill Could Bar Orthodox Couples From Using Beth Din

The bill’s supporters acknowledge that their proposal is aimed at Muslims. But David Barkey, an Anti-Defamation League attorney specializing in church-state issues, said that the bill will affect Jews. Because only a man can grant his wife a Jewish divorce, or get, Barkey said, a beit din —singlular forbatei din — may be seen as violating state and federal equal protection principles, which bar discrimination based on gender.

Read more: http://www.forward.com/articles/152534/?p=all#ixzz1oaJPpDla

. . . . .

Citing 'Demonizing' Fliers, Muslims Want 'Anti-Sharia' Bill Pulled

Crying "sedition," one flier stated: "Our religious, political and peaceful way of life is under attack by Islam and Sharia law." The one-page leaflet was produced by a group called Students for the Constitution.

The measure, which would restrict foreign laws from being used in Florida courts, was also assailed by the Rev. Russell Meyer of the Florida Council of Churches, Apostolic Catholic Church Bishop Chuck Leigh and the Rev. Bernice Powell Jackson of the First United Church of Tampa.

“An attack on one religion is an attack on all," Meyer asserted.

http://www.sunshinestatenews.com/story/citing-demonizing-fliers-muslims-want-anti-sharia-bill-pulled

. . . .

Religious leaders: Florida's anti-Sharia bills are "an attack on all religions"

Multi-denominational religious leaders and advocacy groups came together in Tampa to speak out against twin bills in the Florida House and Senate. The measures would ban Foreign Laws from use in Florida courtrooms. Speakers at the press conference this afternoon said the proposed law is an attack on religious freedom.
http://www.wmnf.org/news_stories/religious-leaders-floridas-anti-sharia-bills-are-an-attack-on-all-religions

American Muslims reject separate ‘sharia’ law system

Indeed, Muslims like all other people of faith would love the personal form of Sharia, guidelines regarding one’s relationship with the creator, however, the American Muslims believe that American Laws will serve the relationships between the individual and others.  http://www.huffingtonpost.com/mike-ghouse/sharia-law-not-in-america_b_653250.html

Mike Ghouse
# # #
American Muslims say they reject separate ‘sharia’ law system
 
http://news.yahoo.com/blogs/lookout/interviews-american-muslims-reject-separate-sharia-law-system-194357992.html

By Liz Goodman

A new study based on interviews with more than 200 North American Muslims concludes that a recent spate of state laws banning "sharia law" from the court system may be an overreaction to a non-existent threat.

Oklahoma, Tennessee and Louisiana each passed laws or referendums to ban state judges from considering sharia and other foreign laws last year, and more than 20 other states have debated similar legislation. Newt Gingrich has called for a federal law to ban sharia, while his fellow Republican presidential candidate Rick Santorum has said sharia law is an "existential threat" to America.

The qualitative study, by University of Windsor law professor Julie MacFarlane and published by the Institute for Social Policy and Understanding think tank, is the first to ask American Muslims what they think of sharia, or Islamic religious law. MacFarlane interviewed 101 Muslim men and women, 41 imams and 70 community leaders and specialists about their uses of Islamic law in everyday life. (About a quarter of the respondents live in Canada, but MacFarlane found no significant difference between the Canadian and American responses.)

MacFarlane asked the respondents whether they thought American courts should apply Islamic law to non-Muslims in the legal system. All of them said no.

Three imams out of the 41 surveyed said they wanted a parallel Islamic family tribunal where Muslims could go to sort out their legal problems. But this idea was unpopular with every other respondent, who were content with the separate and secular civil court system. The study's sample was not random, and MacFarlane's findings are not generalizable to the American Muslim community as a whole. But the research still offers a rare look into Muslim attitudes about sharia.

MacFarlane began her research after a small group of Muslims in Toronto petitioned the government in 2003 to set up a separate Islamic family tribunal where Muslims could get binding legal decisions on family law issues. (The city already had such a tribunal for Catholic and Jewish Canadians.) The request--which ultimately was denied--sparked protests in Canada as well as in far-off London, Vienna and Paris. Protesters said the tribunal would violate the separation of church and state. In America, a well-organized network of experts warn of the threat of "creeping sharia," whereby American Muslims--who make up less than 1 percent of the population--attempt to infiltrate courts with Islamic law.

Most of the Muslims MacFarlane interviewed use religious law for family issues such as divorce, marriages, and inheritances in tandem with the regular court system, not instead of it. She focused her research on Muslims who are divorced, interviewing 101 people in that situation. Ninety-five percent of those 101 people said they signed both a nikah, or religious marriage contract, as well as a civil marriage license. Those who had a legal marriage also all formally divorced in courts, after receiving religious permission to do so from an imam. Some imams would not grant a religious divorce until the couple first brought in the civil divorce decree.

"For most American Muslims, sharia represents a private system of morality and identity, primarily focused on marriage and divorce rituals," MacFarlane writes.
Most of the people who signed only a nikah, and not a civil marriage document, were recent immigrants to North America, MacFarlane told Yahoo News. (A nikah-only marriage is not recognized as legal in North America.) In a handful of cases, nikah-only marriages were used when a man was already married and wanted to have multiple wives. Some imams tolerated or encouraged this informal bigamy, MacFarlane says.

MacFarlane's sample isn't representative of the Muslim community as a whole. About 75 percent of the respondents were immigrants to America or Canada, and nearly all of them had at least a college degree. Half were of South Asian descent, 30 percent of Middle Eastern descent, and 10 percent of African descent. The remaining 10 percent were Caucasian converts and African Americans. (African Americans are estimated to make up about 35 percent of the total American Muslim population.)

MacFarlane's findings will be published in a book by Oxford University Press in April.

Qur’anic Sharia (laws) on Divorce

Note: Since I began my Journey into finding the truth about life and living, I have found Quraan to be document of  common sense and the broader picture is for the society to coexist in harmony. I would say with the same sincerity that all religions preach the same essence. Prophet Muhammad had reemphasized that Islam is not a new religion, it is the same message delivered in different communities. In the following document, you can see how similar it is to our laws in the United States. - Mike Ghouse

The Qur’anic Sharia (laws) on Divorce. Triple divorce, Temporary Marriage, Halala Stand Forbidden (Haram)

By Muhammad Yunus, NewAgeIslam.com Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009 Qur’anic concern on the prevalent customs regarding divorce In Pre-Islamic Arabia, men could abandon their wives at whim by simply declaring, “You are to me like my mother’s back” (58:2). Since handing down a divorce was a man’s prerogative, he needed no ground and did not even release his abandoned wife, who preferred to stay in her husband’s home for want of any other place to go. There is a tradition from Aisha reported in Sahih al-Bukhari (Acc. 134/Vol.7) that institutionalizes this custom. It reads: “… the women whose husband does not want to keep her with him any longer, but wants to divorce her and marry some other lady, so she says to him: `Keep me and do not divorce me, and then marry another woman and you may neither spend on me nor sleep with me.” The Justinian Code that dominated the thoughts of the era, placed a woman under the ownership of a man. After marriage the husband became her owner and treated her as he wished. Thus, he could divorce his wife by simply declaring ‘I divorce thee triply or thrice.’   A system of temporary co-habitation (muta marriage) was also in vogue that permitted a woman to live with different men when their husbands were away from home on trading or any other mission. The Shi‘itee Ithna ‘Ashari school retains the practice. Thus according to the dictum of the theologian, al-Hurr al Amili, “The believer is only perfect when he has experienced a muta [1], though there can be little doubt that the custom virtually conflates legalized prostitution. While this did not raise any question of divorce, the married women who practiced this were virtually temporarily divorced from their husbands and had no means of livelihood for themselves or their children and therefore took to heterosexual habitation as part of social norm. The Qur’an with its key agenda “to lift from them (humanity) their burdens and shackles that were upon humanity (before)” (7:157) had to deliver the women from the curse of arbitrary divorce, conjugal oppression and lifelong bondage. At a higher plane, it recognizes the serious emotional and financial implications of a divorce for either or both the spouses, as well as the offspring of a broken marriage. It, therefore, discourages divorce by a set of well-guarded stipulations, but allows it if the alternative was life-long unhappiness for the family. The Qur’an, however, does not consider divorced women as a social burden. It protects their financial interest and those of the children born to them from their broken marriages, permits them to remarry and treats them practically like any other unmarried women. Context of the Revelation In the immediate context of the revelation, the Qur’an abolishes the pre-Islamic custom that permitted a man to abandon his wife indefinitely by an oath, but retain her in wedlock, thus preventing her remarriage or freedom. It therefore declares (2:226): “Those who vow (to abstain) from their wives must wait for four months. Meanwhile if they go back, (remember,) God is Most Forgiving and Merciful” (2:226). The concluding God’s attribute of Forgiveness and Mercy is suggestive of Qur’anic encouragement for reconciliation between the spouses and restoration of an effective marriage tie. However, if a man remains firm in his decision on divorce, and abandons his wife for four consecutive months, he must terminate the marriage at the end of this period and release his wife (2:227). “However, if they decide on a divorce, (let them remember that) God is All-Knowing and Aware” (2:227) Legislation of a Time-frame for a divorce to take effect as norm for humanity In a legally phrased passage (2:228/229) the Qur’an prescribes, among other things, a three-month waiting period for a woman under divorce notice (2:228), and commands a man who initiates the divorce to formally articulating his intention at least twice over the period (2:229), obviously in the presence of witnesses. The time-framing is reiterated in two other verses (2:231, 65:2). “Divorced women shall wait by themselves for three monthly periods, for it is not lawful for them, if they believe in God and the Last Day, to conceal what God has created in their wombs…. (2:228). (O men, you must) pronounce the divorce over two occasions. Thereafter live together (with your mates) honorably, or part with (tasrihu) them honorably…. (2:229). “And if you divorce women, and they reach (the end of) their term, then either live together honorably, or part with (sarrihu) them honorably, but do not keep them to injure them, (or) to exceed limits. Anyone who does that merely wrongs his own soul…” (2:231). “And when they reach (the end of) their term, then either live together honorably, or part with (fariqu) them honorably, calling to witness two just members from among yourselves and uphold the evidence (as) before God. This is to instruct anyone who believes in God and the Last Day. (Remember,) God will find a way out for anyone who heeds Him” (65:2). Remarriage after divorce. The Qur’an does not permit the marriage of a divorced woman with her ex-husband after the expiry of the three month-timeframe. She must marry a new spouse, live with him as his wife and should this second marriage fail and her new husband divorces her, she could remarry her first husband after the expiry of the three month waiting/notice period (Iddat) (2:230). “If he (the husband) divorces her (at the end of the waiting period), she becomes unlawful to him afterwards until she marries another man. If he (her new husband) then divorces her, there is no blame on the (former) couple to reunite - provided they feel that they can keep within the limits set by God. These are the limits set by God, and He clarifies them to a people who have knowledge” (2:230). This was obviously to allow full freedom to a divorced woman to find a new spouse and marry. The absence of this clause would have led many ex-husbands to prevent their divorced wives from marrying a new spouse out of grudge that normally precedes a divorce. Accordingly, the Qur’an warns men: “And when you have divorced women (after) they have reached their term, you must not obstruct them from marrying (their would be) spouses (azwaj) if they have mutually agreed in a fair manner. This is instructed to anyone among you, who believes in God and the Last Day. (Remember,) this is more appropriate for you and purer; and God knows, yet you do not know” (2.232). Any permission to remarry an ex-husband after an irrevocable divorce would have led to the continuation of a pre-Islamic practice of a man divorcing his wife at whim and marrying her back at whim thereby never allowing her a separation. It would have totally frustrated the intent of the divorce: to release a woman from the bondage of a failed marriage. Maintenance of divorced pregnant wife, and the offspring In a clearly stated verse (2:233) the Qur’an spells out: i) the social and financial responsibilities of a man divorcing a pregnant wife, ii) the moral responsibility of his divorced wife to disclose her pregnancy, iii) the need for mutual consultation between them if they wished to put the child under the care of a foster-mother, and iv) the responsibility of the heir of the father if a child was born posthumously (2:233). “Mothers shall nurse their children for two whole years if they wish to complete the nursing.” The father (has to) provide for them, and clothe them reasonably. No soul is to be burdened beyond its capacity. A mother should not be made to suffer for her child, nor a father for his child, while the heir (is liable) likewise. If they both wish to wean the child by mutual consent and consultation - there is no blame on them; so if you wish to give your children out to wet-nurses, there is no blame on you, provided you pay what is reasonably expected from you. Heed God and know that God is Observant of what you do” (2:233). The Qur’an further commands men folk to supporting a divorced pregnant wife (65:6), and that they should spend according to their means (65:7). “Accommodate them (the women in Iddat) in the manner you lodge, according to your circumstances, and do not harass them to reduce them (to straits). If they are pregnant, meet their expenses until they bring forth their burden; and if they suckle (the baby) for you, give them their due, and consult together honorably. But if you find it difficult (for her health reason, or she intends to remarry), let another woman nurse (it) on behalf of him (the father) (65:6). (In all these matters) the rich should spend (according to) his abundance, but the one whose means is limited should spend of what God has given him. (Remember,) God does not burden anyone beyond what He has given him. Surely God will grant relief after distress” (65:7). Settlement of dower if neither marriage is consummated nor dower fixed The Qur'an directs men to give a reasonable provision to their divorced wives, even if the marriage was not consummated (2:236, 33:49). “There (will be) no blame on you to divorce women before you have consummated (marriage) with them, or fixed their dower (faridah), but provide for them: the rich according to his means, and the poor according to his means – a reasonable provision, a duty binding (haqq), on the compassionate”(2:236). “You who believe, when you marry believing women and divorce them before you have consummated (marriage) with them, you do not have to count (the waiting) period for them. So make provision for them, and part with (sarrihu) them in a handsome parting”(33:49). The verse 2:236 uses the term faridah for marriage dower, while the verse 4:4 calls it saduquat. “Give women their dower (saduquat), as a gift but if they voluntarily favor you with anything from it, take it and enjoy it in good spirit” (4:4). The former (faridah) connotes with a binding obligation, while the latter (saduqat), with a gift, or charity. Thus, the Qur'an leaves no ambiguity about the legal position of marriage dower: it is a binding obligation of a man towards his wife, and is performed as a gesture of goodwill or charity (saduquat) that s non-refundable. Thus there can be no question about deferring its disbursement and linking it with any other financial or post divorce transaction. Settlement of dower if marriage is not consummated, but dower is fixed The Qur’an states: “If you divorce them before you have consummated (marriage) with them, but you have fixed their dower (faridah), then (give them) half of what you have fixed, unless they (the women) forgo it, or the one in whose (alladhi) hands is the marriage tie forgoes it. To forgo is nearer to heedfulness (taqwa), and do not forget to be generous between yourselves. (Remember,) God is Observant of what you do” (2:237). The common gender pronoun alladhi, rendered above as whose, is traditionally identified with a husband, implying that only the husband can terminate a marriage that is yet to be consummated. But this purports to revoke a woman’s Qur’anic privilege to dissolve a marriage unilaterally under compelling circumstances (2:229). Therefore the pronoun alladhi must be interpreted in its common gender form, implying that either of the couple - husband or wife can lawfully dissolve an unconsummated marriage. Based on this, the pronouncements of the verse may be broken down into the following simple tenets: • If a man initiates a divorce, he has to pay half the dower to the woman, unless she forgoes it. •  If a woman breaks the marriage from her side, she has to forgo her claim on half the dower that she would have received if the man divorced her. •  A man, who gives a divorce, has the option to forgo the exempted ‘half' part, and give full contracted dower as a gesture of generosity (fadl). •   Both the partners of a divorce should be generous to each other, and refrain from exploiting one another. Maintenance for a divorced woman The Qur’an declares: “(There shall be) a reasonable maintenance for divorced women - a duty (haqq) binding on the heedful (muttaqin) (2:241). Thus does God clarify His messages to you, that you may use your reason” (2:242). The Qur’anic injunction is in broad terms: it does not say whether a man is required to make a one off provision, or give a maintenance allowance to his divorced wife until she remarries. The Qur'an, however, asks the menfolk to use reason. Thus, if a man is required to make a provision, commensurate to his income, to a woman with whom he has only contracted marriage but not yet consummated it (2:236 above), he must be fair and considerate to the woman he is divorcing after living together as a husband and wife. He must therefore arrange spousal maintenance, commensurate to his income, and to the financial need, age, health and circumstances of his spouse. This obviously is a matter for the court to decide, depending upon the merit of the case, the prevalent social conditions and securities, and the relative financial positions of the partners in a divorce case. The Qur’an forestalls any manipulative interpretation of its commandments The Qur’anic dictates on divorce as discussed above date from two different periods of its revelation. The passage 2:226-242 dates from early Medinite period, while the passage 65:1-7 from mid Medinite period. The passages, separated chronologically by at least three to four years, complement each other with immaculate consistency and clarity in spelling out a husband’s obligations during a divorce. This Qur'anic repetition is understandably to help avoid (i) any misinterpretation by later generation scholars and (ii) any ambiguity on the subject. Conclusion: The Qur’an deals with the process of divorce in a balanced and phased manner comprising a three month time frame, so that this most agonizing experience in a person’s life is faced in a balanced, phased and harmonious manner, and there is no bitterness and ill feelings between the erstwhile spouses. The institution of temporary marriage (muta) and triple divorce are in direct contradiction to the Qur’anic message and therefore stand haram. Some local customs such as Halala that allows a man to divorce his wife at the spur of the moment, such as in a state of anger or drunkenness and then force her into marriage and sexual intercourse with a friend and get him to divorce her to marry her back the next day or so totally disregarding the three month time for his divorce and that of his friend to take effect also stands utterly haram and sexually shameful sadistic. These practices that remain part of the Classical Islamic Law have defiled and demonized Islam, no matter how few Muslims practice it, and how the Muslims glorify their faith, and reduced Islam to a medieval misogynist cult in the eyes of a section of Western people as summed up By Newt Gringer the 2012 Presidential candidate from the Republicans in a speech to the American Enterprise Institute in Washington in July 2010: “I believe Shariah is a mortal threat to the survival of freedom in the United States and in the world as we know it.” It is time for the Islamic doctors of law to treat the Classical Islamic Law as a closed corpus - and draw a Modern Law of Islam based on its divine Sharia (the Qur’an) and not the Classical Islamic Law, which is not a word of God and contradicts the Qur’anic paradigms on many counts as detailed in a recent article: http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=5714 http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=5723 Final Comment: Muslim Ulema in India are sticking to the personal law that their pre-Islamic ancestors established under the behest of Hanafi law. For the medieval era, when women were grievously oppressed in the non-Muslim word, these brazenly anti-Qur’anic laws held sway. With the liberation and empowerment of women and a quantum change in gender dynamics in the non-Muslim world – much in line with the Qur’anic message (I am not suggesting they copied it from the Qur’an for if that was so, why couldn’t the Ulema do it), it is time for the Muslim Ulema to reform their laws in line with the Qur’anic paradigms. One wonders why a section of the Muslim Ulema in India pass Fatwas or stick to rulings that patently contradict the Qur’an, are highly misogynistic, grievously violate international human rights and so immensely preposterous (condoning incest, forcing Indian Government to pass a law to limit the maintenance of a woman after more than 30 years of wedlock.) that one finds it hard to make any candid comment lest it could be too unsavory. The least one may say about the practice of Halala is that a time may also come that a Maulvi from some obscure village of India may insist on watching and filming it as hard core evidence?? God save us from that day. Notes 1.         Azaf A.A.Fyzee, Our lines of Mohammedan Law, Oxford University Press, Fifth Edition, 2005, p. 117. Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009. URL: http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=6391

Muslim without sharia?

Muslim without sharia?

By Harris Zafar

http://www.washingtonpost.com/blogs/guest-voices/post/muslim-without-sharia/2012/01/19/gIQApEbIBQ_blog.html

On Tuesday, January 17th, former Speaker of the House, Newt Gingrich said that the only way he would ever support a Muslim for the presidency of the United States is if that person would “commit in public to give up sharia,” thereby continuing his trend to exhibit his ignorance on the subject of Islamic law (sharia) as well as his ignorance of the United States Constitution.

To be fair, Mr. Gingrich did say that “a truly modern person who happened to worship Allah would not be a threat,” thereby acknowledging the fact that there are indeed trustworthy and moderate Muslims. This statement expresses that he does not condemn all Muslims wholesale, which is encouraging, and I applaud him for those words.

On the other hand, I’m disappointed with his lack of understanding of sharia and the United States Constitution itself when he then continues to say “a person who belonged to any kind of belief in sharia, any kind of effort to impose that on the rest of us, would be a mortal threat.” This is in line with his previous comments, calling sharia “totally abhorrent to the Western world” and “a mortal threat to the survival of freedom in the United States and in the world as we know it.” He suggests there are “violent jihadis” who use violence to spread sharia, as well as “stealth jihadis” who use cultural, religious and intellectual means to manipulate sharia into legislation. So whether the Muslim is violent or not, apparently we all have sharia on the mind.

 The hysteria around sharia continues to grow, especially with the GOP presidential primaries in full swing. The message is that we better do something fast before sharia law usurps the American Constitution. This exposes their absolute ignorance of sharia and the American Constitution itself. The Supremacy Clause of the U.S. Constitution suffices to protect the Constitution as “the supreme law of the land.” Furthermore, the Establishment Clause prohibits the federal government from establishing or preferring any religion (including Islam) in the United States. No law can trump the Constitution of the United States.

Besides, there is nothing in Islam’s teachings about taking over the law of the land. The Koran, Islam’s holy scripture, instructs that absolute justice, not religion, must be the ruling government’s guiding principle, irrespective of different faiths, races, etc.

For Mr. Gingrich to ask Muslims to publicly “give up sharia” is akin to asking them to publicly give up the Koran because sharia is simply the Islamic code that guides everyday Muslim beliefs and actions. Sharia is far from merely a set of punishments or legal obligations. Rather, it is a set of obligations of a personal and private nature dictated by faith. A religious legal system cannot be imposed in the current global society with people of different faiths in all countries.

People like Mr. Gingrich cite some countries to assert that Muslims want to institute harsh punishments for certain crimes. There is no doubt that countries that claim to follow sharia have used it as an excuse to gain power and sanction religious extremism. No country in the world today has implemented a system of government that truly follows Islamic sharia.

When the Prophet Muhammad became the de facto ruler of Arabia, he required all residents be allowed to worship in peace and without oppression. Sharia teaches freedom of conscience and religion. The Koran goes as far as to oblige Muslims to fight on behalf of Jews, Christians and people of other faiths and to protect their churches, synagogues and temples from attack.

The Islamic system of punishment must be examined in the context of Islamic moral teachings, and the atmosphere of high moral standards that Islam first wishes to establish in a society. When that happens, society rises to such heights that crimes become very rare and unnatural. Without creating that society first – where everyone’s needs are met, where honesty, integrity and safety are accepted principles and crimes are an anomaly – no attempt can be made to institute criminal punishments. Islam does not command us to enact punishments. That’s putting the cart before the horse.

Although some exploit the sharia hysteria to rally the base in this election year, accusations levied against sharia are patently absurd. The nearly two dozen proposed bills to ban sharia in the United States are an exaggerated response to a non-existent and manufactured problem. I invite Mr. Gingrich, as well as lawmakers at all levels of government, to meet with us to better understand sharia’s role in the life of American Muslims.

Harris Zafar serves as the national spokesperson for the Ahmadiyya Muslim Community - the oldest Muslim organization in America - and is a frequent lecturer about Islam around the country. He can be contacted at harris.zafar@ahmadiyya.us.