By Dr Julie Macfarlane
Recently, Florida’s House of Representatives passed a bill (which later died in the state Senate) to ban the use of “foreign law” in domestic courtrooms. Such a bill may seem innocuous but according to the Miami Herald, flyers have circulated in Senate offices describing sharia – Islamic principles which are part of a voluntary system of personal obligation – as “radical Islam’s threat to the US Constitution”.
I saw these same uninformed attitudes in the reactions of some of my colleagues to my four-year qualitative study of Islamic marriage and divorce in North America. Their response was often an amazed “Do they have divorce in Islam?” When I explained that while Muslim women are treated differently from men (who have unilateral access to divorce in classical Islamic law), and that they do have the right to ask for divorce on a wide range of grounds (and have had this right since the 7th century), the response was frequently “But don’t they just stone them?” – followed by laughter.
American public discourse on Islam is underpinned by three related misconceptions about Islam, Muslims in general and sharia in particular.
The first is that Muslims hold very different values compared to other cultures and religions. Rarely can anyone explain what these different values are – just that they are frightening. As one student told her professor, “I don’t really know anything about sharia law, I just know that it’s a bad thing.”
Most Americans are unaware that the vast majority of sharia – as it is understood and practiced by Muslim Americans as well as in Muslim-majority countries with Islamic legal systems – is concerned with family matters, including the laws of divorce and inheritance. Sharia for Muslim Americans comes down to observing Islamic marriage rituals, and in some cases asking an imam to approve a divorce – a far cry from the image of sharia as brutal penal punishment.
A second widespread misconception is the belief that Muslim Americans reject Western norms and values in favour of their own “different” ones. In my study of marriage and divorce among Muslim North Americans, the more than 200 respondents – divorced men and women and their imams – embraced the American or Canadian legal systems and saw their Muslim traditions as a supplement, not ,substitute, for legal marriage and divorce requirements. Ninety five per cent were married with both a nikah (an Islamic marriage contract) and a legal license. Many were also divorced “twice”, once in Islam, with the blessing of an imam, and once legally, by obtaining a divorce decree from a court.
I found almost no interest in establishing a parallel Islamic legal system, which most Muslim Americans regard as entirely unnecessary because they see their Islamic obligations as private and perfectly compatible with the formal legal system. In fact my respondents regularly used the courts to resolve contentious matters in divorce when they could not reach their own private settlements, just like any other Americans.
A billboard outside Detroit, Michigan in 2008 read “Shari’a Law Threatens America.” Such acts – and the sentiment behind them – illustrate the widespread and ever-growing assumption that Muslims are determined to impose “their” values on non-Muslims through the legal system (evidenced in numerous state efforts to pass “anti-sharia” laws, like Florida).
My study illustrates two counter realities. Muslims are not in the least interested in imposing sharia on non-Muslims. Furthermore, American courts, far from applying sharia are holding any Islamic contract to a higher threshold because of the proscription against interpreting religious dogma or enforcing a religious contract.
By far the most common contestation relevant to Islamic law in US courts involves payment of the mahr. Islamic marriage is a contract similar to a pre-nuptial agreement in which the mahr specifies upfront what the wife would receive during the marriage or upon divorce. In these cases, the courts have consistently refused to enforce this promise, despite it meeting all legal contractual requirements (it will have been done in writing, witnessed by hundreds of wedding guests, made voluntarily) because the nikah is deemed to be a religious contract.
In fact many Muslims in my study who used a nikah were quite secular, but wanted to observe cultural traditions. On closer examination, the much-vaunted claim that American courts need a bulwark against “creeping Islamisation” has no substance at all.
If fear and hostility against Muslims can be countered by more knowledge and better data, there is hope for transforming an impoverished public discourse into one in which Muslim Americans can again feel welcomed.
Dr Julie Macfarlane is Professor of Law at the University of Windsor and the author of Islamic Divorce in North America: A Shari’a Path in a Secular Society (Oxford University Press). For two reports summarising her research results, go to www.ispu.org.