Reprinted with permission from the September 9, 2013 edition of The National Law Journal © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, [email protected], or visit www.almeprints.com.

THE NATIONAL LAW JOURNAL September 9, 2013 Monday SECTION: OPINION; Pg. 39 Vol. 36 No. 2 HEADLINE: Following Defeats, Anti-Sharia Law Supporters Revert to Sneaky Tactics; Push to prohibit application of Islamic law made under guise of equal rights activism. BYLINE: MICHAEL HELFAND BODY: After three years of litigation, a federal district court last month struck down Oklahoma's 2010 anti-Sharia amendment. But don't let this development fool you. The anti-Sharia movement is alive and well in the United States—and more mobilized than ever. Since 2010, nearly 30 states have considered bills that would prohibit state courts from referencing Islamic law in their decisions. One of the most recent skirmishes in the ongoing legislative battle transpired in July with the North Carolina Legislature passing its own anti-Sharia law, making it the seventh state to do so. And the war rages on: Alabama's proposed anti-Sharia law will appear on the ballot in 2014. For this legislative onslaught to have been so successful in the United States is nothing short of astounding and nothing less than appalling. The United States was founded on principles of religious freedom—and targeting Islamic law for exclusion constitutes religious discrimination of the first order. Indeed, this is precisely why the Oklahoma anti-Sharia law was struck down as a violation of the First Amendment. But the anti-Sharia movement has learned from its failure in Oklahoma. Now, instead of explicitly referencing Islamic law, the second wave of anti-Sharia bills instructs courts to reject all forms of "foreign law." Of course, Sharia law is still included in the category of foreign law, but this semantic switch allows the anti-Sharia movement to claim that its legislative proposals are neutral, no longer explicitly discriminating against a particular brand of religious law. To be sure, there have been costs to this latest gambit. In prohibiting courts from considering all forms of "foreign law," the anti-Sharia movement has raised the ire of commercial groups, which have worried that these laws threaten many international business transactions. The movement also has antagonized Jewish groups, fearful that such enactments would void religious marriage and arbitration agreements. Amazingly, the anti-Sharia movement has combated the growing list of critics by portraying itself as the great protector of gender equality. Anti-Sharia advocates assert that by prohibiting courts from considering Islamic law, anti-Sharia laws protect women from subjugation at the hands of Muslim men. They reference a 2009 New Jersey decision in which a judge refused to grant a wife a restraining order against her husband, reasoning that the husband was not guilty of sexual assault because he thought his conduct was permitted by

Islamic law. The judge determined that the husband failed to form the criminal intent necessary to be found guilty. Capitalizing on this decision, interest groups ran commercials supporting Oklahoma's 2010 anti-Sharia law, claiming that it was the only way to stop husbands from raping their wives. And just a few weeks ago, state Representative Chris Whitmire—sponsor of North Carolina's anti-Sharia law—pitched the law as intended to protect "constitutional rights, especially of women." Of course, this is all horrific nonsense. The judge's decision in the now infamous New Jersey case was reversed on appeal. Turns out the only thing he needed to grant the restraining order was a refresher course in first-year criminal law: You can be found guilty of criminal assault if you intend to commit the act; you don't need to think the act is criminal. Thus, the husband's impressions of Sharia law were irrelevant to the case. The fact that advocates of anti-Sharia laws continue to reference the judge's flawed reasoning lays bare the nonexistence of the supposed threat Islamic law poses to women's rights. Indeed, the dirty little secret of the anti-Sharia law movement is that its legislative ambitions are just as likely—if not more likely—to harm women as they are to protect them. Consider a recent decision in which a court refused to enforce an Islamic mahr contract, an agreement used as part of the traditional Islamic marriage process. Mahr contracts provide the wife with a secured debt against the husband in the event of death or divorce. In refusing to enforce one such mahr contract, a Kansas court leveraged that state's newly enacted anti-Sharia law, arguing that mahr contracts perpetuate discrimination because Islamic law grants husbands unilateral authority to effect a divorce. But the court never quite explained how enforcing the mahr agreement would perpetuate the alleged discrimination. How does preventing the wife from collecting a debt against her husband—in this case, a substantial debt of $677,000—further perpetuate an allegedly discriminatory system whereby the husband exercises too much authority? The mahr contract existed to protect the wife from this precise scenario, and instead of doing so, Kansas' anti-Sharia law paved her road to financial ruin. This is the core problem with the revamped anti-Sharia laws. While advocates often seek to disguise their discriminatory ambitions under a thin veneer of gender equality, the truth is that the law already has a wide arsenal of doctrines that protect women. It requires that we prosecute individuals who commit sexual assault and that we void agreements that violate public policy. Instead of helping these efforts, anti-Sharia laws set us back even further, threatening religious liberty, commercial efficiency and gender equality. It is not just that anti-Sharia laws aim to solve a problem that doesn't exist; they actually create a whole new list of problems that we now need to solve. *Michael Helfand is an associate professor at Pepperdine University School of Law.