Keeping an eye on them pesky Ottomans

WORLD VIEW:The idea of Sharia law as a threat to the US legal system emerged in recent months

IN THE great scheme of things, in the midst of global economic crisis and political turmoil, the prejudices and tilting at windmills of the good but deluded people of Oklahoma may not seem to amount to a hill of beans.

And yet there is in the “Sooner state’s” bizarre phoney war against the phantom Islamisation of America – a “stealth jihad” by Muslims – a strange story that tells of both a genuine sense of fear of many ordinary Americans, beleaguered in a hostile world beyond their understanding, and of the sort of idiocy that a cocktail of referendum democracy and demagogues may produce.

And then there’s a strong hint of the ol’ unreconstructed racist south reasserting itself in a new guise.

On November 2nd, as America gave a drubbing to Obama and the Democrats in the midterms, the citizens of deeply Republican Oklahoma also passed a referendum to ensure that, as a Washington Post correspondent put it, “henceforth, there will be no public stonings in Ponca city, no forced burka wearing in Bartlesville”. By a 70 per cent majority they backed a proposition requiring that the state’s courts “shall not look to the legal precepts of other nations or cultures. Specifically, the court shall not consider international law or Sharia law.”

The idea that the imposition of Sharia law is actually an imminent threat to the US legal system has emerged in recent months from conservative circles and talk radio, a subtext in the running Islamophobe demonisation of “Muslim” Obama and controversies such as that over the planned Manhattan mosque. The neocon Center for Security Policy in Washington described it as “the pre-eminent totalitarian threat of our time”.

“The question arises, given the quiet on the prairies, against whom?” writes New York Times columnist Roger Cohen. “A prominent Oklahoma pastor, Paul Blair, told me it was aimed at those ‘whose plan is not to coexist but bring the whole world under Islam’.”

The Oklahoma initiative – State Question 755 – had come from Rex Duncan, a Republican state representative, who freely acknowledges that the state does not yet have problem, “but why wait until it’s in the courts?” It’s a novel rationale for pre-emptive legislation that can, and probably will, inspire almost unlimited nonsense; and Republicans in Arizona and South Carolina, among others, are talking about similar measures.

Duncan says Muslims want to take away American liberties and freedom and Sharia is a “cancer that must be removed with a pre-emptive strike”.

He has denounced as a “liberal activist” determined to thwart the people’s will the local federal judge Vicki Miles-LaGrange, who last week granted a temporary injunction to a member of the state’s tiny Muslim population against implementation of the measure.

She found a prima facie case that the proposition has no secular purpose and has the primary effect of inhibiting a religion in breach of the Bill of Rights, what others have called “faith baiting”. The issue is likely to go all the way to the supreme court.

Sharia law does in fact, like Jewish Halakhic law or indeed Catholic canon law, occasionally rear its head in the US courts. Supporters of SQ755 are wont to cite a New Jersey case that considered Sharia law in denying a restraining order to a woman who alleged that her husband had raped her.

But the decision was swiftly overturned by an appellate court because, under the First Amendment, religion cannot excuse criminal conduct.

State and federal courts also currently treat religious tribunals as they do other arbitration panels that litigants can use as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, courts routinely “confirm” them, making them legally enforceable.

But, Oklahomans please note, under the “public policy exception”, courts cannot enforce any arbitration award that undermines US public policies. Just as a court cannot enforce a contract to hire a hit man, a court cannot enforce an arbitration award that requires something such as stoning.

Nor, for example, could a court confirm a religious tribunal’s child custody decision without making its own independent determination as to what was in the best interests of the child.

And Oklahoma’s business community is supporting an appeal, worried that SQ755’s prohibition on recognising international law may interfere with contracts that have an international dimension. Article IV of the US constitution will also be a problem to the state – the “supremacy clause” provides that treaties “shall be the supreme law of the land”. But the plain people of Oklahoma are adamant and will not be persuaded.

Roger Cohen, taking the state’s pulse, met 86-year-old Ken Sherman in a rural cafe to talk about the issue. A worried Sherman asked him what “that huge Muslim movement that took over Europe” was called. Cohen was stumped.

“Begins with ‘O’,” Sherman said.

“The Ottoman Empire?” Cohen ventured.

“Yep,” Sherman said.

“Case closed,” writes a bewildered Cohen.

Gotta keep an eye on those pesky Ottomans.