Religious Liberty, Equal Citizenship and the Threat of Anti-Shari'a Loyalty Oaths

I recall watching the Republican 2011 debates on Shari’a and Islam with a smoldering sense of frustration. Questions like “Would you appoint a Muslim to your cabinet?” seemed surreal in the country whose founding fathers generated the Federalist papers, leave alone the Independence Declaration or the U.S. Constitution.

Listening to the latest round of Republication pontifications on Shari’a and Islam in 2016 transformed the smouldering frustration to indignation and alienation.

In a debate so replete with bigotry, prejudice and outright buffoonery, perhaps Ben Carson’s balderdash about how the theology of taqiyya (dissimulation) disqualifies Muslims from holding public office took the proverbial cake.

As if the gods of bigotry had not had their fill, we were destined to be re-assaulted with Newt Gingrich’s un-American declarations on the inconsistency of Shari’a with Judeo-Christian values and the desirability of administering allegiance oaths disavowing belief in Shari’a to American Muslim citizens.

Quite sensibly, some principled writers tried to educate Gingrich on the true meaning of Shari’a, and the difference between Shari’a and fiqh and similar matters pertaining to scholarly accuracy.

I fear, however, that we have become marred in a hysterical cultural moment where scholarly accuracy does not make a bit of a difference. I will leave aside the issue of the United States having been established on Judeo-Christian values, which I confess is a claim that is supported only by a robust selective memory, and a creative mixture of political correctness towards some and bigotry towards others.

The anxiety-inducing problem in this now tiresome subject of the evils of Shari’a is not the ignorance of law makers about the truth about Shari’a. The attitudes and writings of Islamophobes have proven to be resiliently impenetrable and defiant towards any serious scholarship or rational discourse on the subject.

But now my serious and overriding concern, and source of anxiety, is that we will be revisiting some of worst hysterical periods of American politics and law when loyalty oaths were routinely demanded from a wide range of professions including teachers working in state universities. The scenario threatening to unfold in the United States is that teachers (like me) will be asked to take an oath disavowing belief in Shari’a at the risk of losing their jobs.

We should recall that no less than thirty-two states have attempted to introduce anti-Shari’a bills (and, in the case of Arizona, the bill included Halakhah and Canon law as well) but most of the bills died in committee or never made it to a vote. Oklahoma enacted a law banning its courts from considering or applying Shari’a and/or Islamic law, but the Tenth Circuit struck down the law as unconstitutional in 2012. This was influential in driving most states to enact watered down bills stated in more neutral language restricting state courts from applying foreign or religious law.

In all cases, this genre of state laws raises complex issues of federalism and international comity, and in general, is of dubious constitutionality. But the anti-Islamic animus behind this legislation is unmistakable. For one, the language for most of these laws was modelled after the template proposed by the ALAC (American Laws for American Courts), which was written by David Yerushalmi, a notorious anti-Shari’a advocate and activist.

The pressing problem, however, is not these fairly innocuous laws but the ideological impulse behind them. The problem is not that the likes of Gingrich, Carson or Yerushalmi do not realize the difference between Shari’a andfiqh or that they are unaware of the Islamic interpretive tradition. The defining issue is that they are convinced that, to coin a term, “Shari’aic Muslims” (inspired by the similar expression Halakhic Jews) are disloyal to the United States and are ideologically committed to the overthrow of the American government and the imposition of a Shari’a state.

This is well attested in the numerous writings of Islamophobes but also in the verminous oratories that took place on the floors of state legislatures and among Republican candidates. I think the point is well illustrated by a proposed Tennessee bill that sought to criminalize Shari’a organizations. It stated:

“Sharia, as defined and understood by traditional and authoritative sharia scholars and leaders, is a legal-political-military doctrinal system combined with certain religious beliefs; further, sharia is based historically and traditionally on a full corpus of law and jurisprudence termed fiqh and usul al-fiqh, respectively, dealing with all aspects of a sharia-adherent’s personal and social life and political society. Sharia serves as national and local law in several foreign jurisdictions; ... Sharia as a political doctrine requires all its adherents to actively support the establishment of a political society based upon sharia as foundational or supreme law and the replacement of any political entity not governed by sharia with a sharia political order; ... Sharia requires all its adherents to actively and passively support the replacement of America’s constitutional republic, including the representative government of this state with a political system based upon sharia.”

The fact that this bill was not enacted into law is beside the point. The bill is symptomatic of a widely shared view especially in the conservative Christian right that Shari’aic Muslims cannot be loyal to the United States, and hence, cannot be trusted.

The idea of requiring loyalty oaths repudiating Shari’a from state employees, and especially university teachers, is not new. However, the recent Republican debates and the emergence of Trump-politics with its uncivil brand of invidious and invective speech has re-energized the movement to rid schools and universities of what Islamophobes consider offensive and disloyal public servants. Campus Watch has been publishing its list of bad professors (a list that I proudly grace) for years, and there are numerous murmurs of back door visits to state politicians with the aim of getting allies on board with a loyalty-oaths momentum - possibly beginning with California state universities.

Of course, Article 6 section 3 of our Constitution simply states:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

In other words, it is unconstitutional to administer loyalty oaths that in effect would constitute a religious test. But this is precisely why Islamophobes insist that Shari’a and fiqh are not a religion but an ideology that demands unfettered loyalty from its adherents. Our constitutional jurisprudence on the question of loyalty oaths has not always been exemplary. At times of national hysteria, such as in the post-World War II years, the Supreme Court has made its share of unfortunate decisions. It is virtually impossible to summarize constitutional precedents on this issue other than to say the court has swung from right to left and back again.

But what is the problem with anti-Shari’a oaths? Leaving aside First Amendment and equal protection issues, the serious problem is that I do not believe that Islam and Shari’a are separable. If one takes an oath to disavow Shari’a, in my view, it would be an oath to disavow the law of Islam, which simply cannot be separated from the religion itself. Praying five times a day, fasting the month of Ramadan, giving alms to the poor, or even abiding by the Mosaic ten commandants, which are integral to the Islamic faith, is also part of Shari’a. It would be akin to demanding Halakhic Jews to take an oath disavowing Jewish law.

But, does Shari’a demand the overthrow of secular constitutional orders and replacing them with a Shari’a state? The answer in my view is indisputably clear - it is a resounding: No! But again, Ben Carson would probably say that any denial of Muslim nefarious plans to overthrow our constitutional order is just a practice of taqiyya. So we Muslims are doomed whatever we say.

If Trump wins the presidential election, this country will become virtually unrecognizable, and things like anti-Shari’a oaths will become a reality in an increasingly persecutory, hate-filled and polarized society. But the problem is that even if Trump does not win, our woes as Muslims are far from over. The problem is that there is an unreasonable and irrational resistance in American culture to recognizing that religious bigotry is every bit as ugly and harmful as racism, ethnocentrism, or sexism. It is as if stereotyping, demeaning or belittling a faith community is somehow less morally reprehensible than doing so with a race, sex, or ethnicity.

Take, for instance, Bill Clinton’s recent speech at the Democratic Convention. Bill Clinton said speaking to Muslims: “If you’re a Muslim and you love America and freedom and you hate terror, stay here and help us win and make a future together, we want you.” Although it does not compare to Trump’s anti-Muslim ravings, this statement is without a doubt discriminatory and demeaning. It does not afford Muslims equal civic status to other communities of faith. It is insufficient for Muslims to be citizens to be desirable but they must love America, and freedom, and hate terror and perform some form of conscripted service in helping the state win its war against terror. This would imply that, while a citizen born a Christian or Jew indulging in the pursuit of happiness and even frivolous pleasures is “wanted” but a Muslim is presumptively charged with additional civic obligations to achieve the same degree of desirability. The end result is unequal citizenry between Muslims and other communities of faith, and this precisely is not what America is supposed to be about.

Even more troubling, Bill Clinton’s statement lends support to the institution loyalty tests to differentiate between desirable and undesirable Muslims - freedom-loving Muslims and, I guess, oppression-loving Muslims - although the absurdity of this construction is self-evident.

The visionary founding father Thomas Jefferson once said on the subject:

“It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others; or their case may, by change of circumstances, become his own. It behooves him, too, in his case to give no example of concession, betraying the common right of independent opinion, by answering questions of faith which the laws have left between God and himself.”

To say to a person, I respect your right to adhere to your own faith but I merely demand to know what that faith means, is as much an invasion against liberty of conscience as anything. But to even go beyond this and attempt to craft for Muslims the boundaries of what is a “wanted” versus an “unwanted” religious faith is to make a total mockery of the very idea of religious liberty and equal citizenship. It is this, more than any possible terrorist attack, that poses a threat to American democracy of truly Trumpian proportions!

Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor of Law at the UCLA School of Law. He is the author of Reasoning with God: Reclaiming Shari’ah in the Modern Age . 

This article was previously published on the ABC Religion and Ethics website .