Sharia Hysteria, Show-Me State Edition

Late Friday afternoon, the eagle eye of Chris Good caught this item out of Missouri, where conservative state legislators are pushing a series of measures that would preclude judges from considering "Shariah law" or the "legal precepts of other nations or cultures" when meting out justice. The most glaring of these measures, HJR 31, states as follows:

Upon voter approval, this proposed constitutional amendment requires courts, when making judicial decisions, to uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; federal regulations; and, if necessary, the law of another state if that state's laws do not include Sharia law. Courts are prohibited from considering legal precepts of other nations or cultures and cannot consider international law or Sharia law.

The story Chris caught included comments from a U.S. Attorney who said, quite reasonably, that if such a measure were to become Missouri law it would probably be subject to challenge in federal court and that the Justice Department would likely be a part of that challenge. I say "quite reasonably" with confidence because you don't have to be a legal analyst (or a federal prosecutor) to see how poorly HJR 31 is written and how unconstitutional it is. Rarely, in fact, does something like this get even as far as it evidently has. (Meanwhile, a companion bill, H.B 708, which is only slightly more subtle, passed the Missouri House on April 20th. For many of the same reasons you'll read here, it is unconsitutional, too).

Let's take the first few clauses of HJR 31:

Upon voter approval, this proposed constitutional amendment requires courts, when making judicial decisions, to uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; federal regulations;

There is no legal point to any of this since "courts, when making judicial decisions" in Missouri of course already are bound to "uphold and adhere to the law as provided in the United States Constitution; the Missouri Constitution; the United States Code; [and] federal regulations." In fact, Missouri's courts have been so bound for nearly 190 years, since August 10, 1821, when the state finally came into the the Union as part of the Missouri Compromise. So far, HJR 31 is the equivalent of a state law that says the President is the head of the executive branch or that the Congress heads the national legislature.

Although there may be no legal point to this language, it is worth stopping here for a moment anyway. For any reasonable state legislator, the above language, alone, would be enough to allay any rational concern he or she could possibly have about "sharia law" and its potential impact upon the American judicial system. Nothing more than this generic language is needed. That's because "sharia law," like Canon law or Talmudic law or any other religious law, is enforceable in the United States only in a private sense, between consenting adults, and so long as it does not conflict with federal or state law. If and when it does, sharia law loses out. Always. It's no more complicated than that.

In early April in the Missourian, columnist David Rosman explained precisely what that means. He wrote: "A search of Missouri courts and the State Courts Administrator website shows no incident in which Sharia law has been considered in Missouri courts. The state Supreme Court verified this fact." If ever there were an example of a government spending time and energy on a solution in search of a problem this is it. The reason Rosman couldn't find a single example of a Missouri judge considering "sharia law," much less imposing it over over federal or state law, is because even the worst judge in Missouri knows that's not the way our cherished legal system works.

Let's move on. Here's the next clause of HJR 31:

... and, if necessary, the law of another state if that state's laws do not include Sharia law.

Here's where we start to see conflict -- and problems for the drafters and supporters of the measure. First, this language seems to directly violate the language of the "Full, Faith and Credit" clause of the Constitution. It reads: "Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." All of sudden now, with HJR 31, Missouri is going to be making value judgments about the substance of another state's law? And is going to ignore the laws of those states which may approach "sharia law" differently? No federal judge is going to countenance that.

This clause draws out another problem with HJR 31. What exactly is "sharia law" anyway? It's certainly not something created and enforced per se by a sovereign body. It's not like Canadian law or Chinese law or even Iraqi law. And it's not even like the vexing, amorphous "international law" conservatives howl about every time Supreme Court Justice Anthony M. Kennedy references it in an opinion. It may greatly influence the national laws and governing principles of some countries. And it may guide the religious lives of its devout adherents. But so does the Bible, right? Would a state law that decreed that no judge could ever "consider" Biblical law appeal to you?

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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