Faculty Publications
 

Document Type

Article

Publication Date

2013

Excerpt

The Article proceeds in three parts: in Part II, the Article describes three anti-shari'ah measures. It describes Oklahoma's Save Our State amendment to show how these laws target Islam. It also reviews the recent decision by the Tenth Circuit Court of Appeals affirming the grant of a preliminary injunction against the certification of Oklahoma's constitutional amendment. It then describes Arizona's law that targets shari'ah as well as other legal traditions. It also examines the original version of the Tennessee bill to illustrate the motivations behind the revised, watered down version that was eventually passed by the legislature. Part II concludes with an examination of the chief architects of the model law disseminated to various states and their motivations. The aim is to show how the drafters of the laws were preoccupied not by protecting Americans from a threat of terrorists in their midst, but by defining "American" identity through the law. In Part III of this Article, I take a deeper look into the claim that the

Abstract

This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws are the latest in an ongoing legal and social resignification of Islam and Muslims in an effort to maintain a visible and “alien” threat. It argues that even if they are ineffective as national security laws and even if they are struck down as unconstitutional, anti-shari’ah laws have social effects on Muslims, marginalizing them from the mainstream and singling them out for differential treatment. The Article then analyzes the anti-shari’ah laws as part of a broad spectrum of social and legal methods used in the post 9/11 War on Terror that have the overall effect of “casting out” Muslims from the protection of both civil and human rights law. As such, the anti-shari’ah laws which form a part of this edifice of exclusion must be taken seriously. The Article concludes with the suggestion that states should refuse to participate in the Manichean construction of the Muslim enemy in a global War on Terror, and that we should recognize that our security depends, not on the ongoing exclusion of Muslims, but on their participation and cooperation

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