Deja Vu All Over Again

Later today, I am participating in a discussion at the Indianapolis Interfaith Center on Shari’a Law. Given the current hostility to Islam, and its usefulness for some as a wedge issue, the presentations should be interesting.

When I first became aware of the passage of state laws prohibiting courts from applying Sharia law, my first reaction was “it’s déjà vu all over again.”  I grew up Jewish in Anderson, Indiana. There were a total of 30 Jewish families in Anderson, and growing up I fielded questions like “do Jews have tails?” and “do Jews live in houses like ‘real’ people?” Less naïve—and nastier—comments assumed Jews’ dual loyalty—and implicitly, that our commitment to Israel would trump our allegiance to the United States. Essentially, these folks were sure Jews constituted a disloyal “fifth column,” not to be trusted.

It hasn’t only been Jews who were subject to these suspicions. I was in college during JFK’s campaign for President, and several people explained to me that if he won, the Pope would rule America, that Catholicism was incompatible with Americanism, and that Catholics were amassing weapons in church basements. (They never said whether those weapons would be used if Kennedy won or lost…)

More recently, we’ve all heard the anti-immigrant rhetoric about Latinos. “They” won’t learn our language, “they” will change America’s culture. (No one seems all that angry about Canadians).

It’s probably human nature to fear and demonize the “other.” My son-in-law’s mother, who lives in northern England, has a friend who doesn’t trust “those people” from outside Yorkshire. When my husband’s pocket was picked in Spain, a nice man from Barcelona explained that it was undoubtedly the work of the Moroccans. But whatever evolutionary benefits such instincts conferred on us humans in the past, these fears of people who don’t look or act or believe like us have really become counter-productive.

My own history with this constant suspicion of “otherness” informs the perspective I bring to the silly anti-Sharia laws popping up around the country. Those laws typically prohibit the use of Sharia (or often simply “foreign”) law in our courts. I am firmly convinced that, in addition to the obvious bigotry/jingoism, widespread civic illiteracy goes a long way toward explaining passage of these measures.

If there is one thing I have learned after 14 years of teaching law and policy, it is that this country faces a frightening deficit of knowledge about our governing institutions. This is another example. The people agitating for these laws and the legislators who pass them have no idea what courts do, or how law works.

If I die leaving instructions to divide my estate in accordance with Islamic law, are the Courts forbidden to enforce my will? If I enter into a contract with someone from France and we both agree that French law will govern any disputes that arise, must American courts ignore our agreement? If orthodox Jews voluntarily take a dispute to the Beth Din–a Jewish arbitration tribunal–shouldn’t American courts enforce that tribunal’s decision in the same way that they routinely enforce the increasing numbers of business arbitrations?

The First Amendment’s Free Exercise Clause requires American courts to abstain from deciding purely religious disputes; they will not take jurisdiction over arguments growing out of religious doctrine, for example. And religious belief cannot successfully be used as a defense in cases where American laws have been broken. “God wanted me to blow up that building” doesn’t cut it in a court of law, no matter whose God we’re talking about.

The passage of legislation to prevent the “imposition” of Sharia law rests on profound misunderstanding of the operation of law and the role of the courts.

Of course, these measures are also a great example of the “elephant” story we’ve all heard: a man is sitting in his living room making weird circles in the air. Someone asks him what he’s doing. “Keeping the elephants away.” The questioner protests, “But there are no elephants”–to which the man responds triumphantly, “See. It works!”

During my own lifetime, I’ve seen American society get over its fear of Jews and Catholics and various “others,” and I have some confidence that we’ll live through the hysteria over Muslims aka “Islamic terrorists.” But a little civic literacy and common sense–and a little less “deja vu”– would be very welcome right now.