The State of Oklahoma overwhelmingly supported Measure 755 in last week’s elections, forbidding the use of international and shari’ah law in state courts. A week earlier, literary theorist Stanley Fish penned a piece for the New York Times exploring the conflicts that emerge when Muslim immigrants to Western nations “evidence a desire to order their affairs, especially domestic affairs, by Shari’ah law rather than by the supposedly neutral law of a godless liberalism.”
Fish is well-known for exposing the tensions between our political ideals and the practical demands of life in a pluralistic society. He does so in a way that is almost always entertaining and usually helpful, especially as a reminder that achieving justice is seldom as neat and clean as applying principles. Unfortunately, he also has a tendency to amp up the tension beyond all recognition of the actual conflicts we face. The results are like an overexposed photograph, interesting and provocative in that it helps us see things in a new way, but also distorting of our actual circumstances.
As is the case with a recent Times post, “Serving Two Masters: Shariah Law and the Secular State,” Fish has a tendency to pit liberal or secular theory against a strongly held religious conviction or practice. In this case, the philosophers John Locke and John Rawls are pitted against Islamic law or Shari’ah. Locke and Rawls are, of course, standard bearers for the liberal theory that, according to Fish, strongly informs our legal system, with its emphasis on individual rights. For evidence, he points to the Supreme Court’s 1990 decision, Employment Division v. Smith, the famous case in which a divided Supreme Court ruled against the religious use of peyote based on the general applicability of the law.
The answer the court gave, with Justice Antonin Scalia writing for the majority, was that the religious believer must yield to the law of the state so long as that law was not passed with the intention of curtailing or regulating his or anyone else’s religious practice.
The lesson we should learn is that the law is a blunt force, especially when it comes to limiting the rights of communities, be they Native American or Muslims who practice Shari’ah. Rather than litigate such disputes Fish advises us to rely on political processes to find compromises acceptable to the parties involved. The argument is provocative and succeeds in raising important questions, but it also makes common cause with opponents of both secular government and Islam in reinforcing the assumption that the nation’s political theory is a poor fit with Islam. In doing so, he misrepresents the nation’s political theory, Islamic law, and the place of religion in our constitutional democracy.