A federal appeals court will soon consider a challenge to an Oklahoma measure prohibiting the use of Sharia, or Islamic law, in the state's courts. The constitutional amendment is part of a national trend in which politicians — including Republican presidential candidate Newt Gingrich — argue that it is vital to prevent Sharia from insinuating itself into the administration of justice in U.S. courts. Never mind that there is scant evidence that American judges are resolving cases on the basis of Sharia.
Like the belief that President Obama wasn't born in the United States, the fear that Islamic law will become a touchstone of American justice is delusional. What is depressing is how widespread it is. The American Civil Liberties Union, which is representing a Muslim man challenging Oklahoma's law, says 24 states have adopted or considered measures forbidding the use of Islamic law. In the paranoid anti-communism of the 1950s, it was said that Americans feared a Red under every bed. Now the dark fantasy is an imam on the bench.
Are American judges applying Islamic law? Rarely, if ever. In New Jersey last year, a judge declined to issue a restraining order against a Muslim man accused of forcing himself on his wife; the judge said his behavior was "consistent with his [religious] practices." An appeals court overturned the decision, rejecting the idea that courts should take religious law into account.
Speaking of the courts, they may be the undoing of anti-Sharia laws. The plaintiff in the Oklahoma case made two arguments: that the amendment favored one religion over another, thus violating the 1st Amendment's ban on an establishment of religion, and that it interfered with his free exercise of religion. The first argument is more persuasive than the second, which is based on the idea that the courts might not probate his will because it refers to elements of Islamic prophetic traditions. But a federal district judge found both arguments persuasive enough to issue a preliminary injunction blocking enforcement of the law while the case moves through the courts.
The courts may save Oklahoma from itself by continuing to block the anti-Sharia amendment. But a legal test of such measures wouldn't be necessary if politicians stopped pandering to Islamophobia. Almost 10 years after 9/11, and despite the preachments of two presidents, too many Americans still regard their Muslim fellow citizens as subversive strangers. That attitude is a bigger threat to American values than Sharia is.