In recent weeks, there has been an uptick in anti-Sharia legislation, an Executive Order implementing a de facto Muslim ban, and the introduction of a bill in Congress seeking to designate the Muslim Brotherhood a foreign terrorist organization. So-called “alternative facts” informed by anti-Muslim prejudice and hatred are the commonality threading these legal developments together.
In the twelve weeks that have elapsed since November’s presidential election results, at least five anti-Sharia bills have been introduced in state legislatures including, Montana, Oregon, Idaho, South Carolina, and Arkansas. These proposed laws are ostensibly designed to prevent state and federal judges from applying Islamic law in the cases they adjudicate; in practice, they stigmatize and marginalize the minority faith community. To be sure, such legislation is not new although the recent uptick is notable.
According to researchers Elsadig Elsheikh and Basima Sisemore at UC Berkley’s Haas Institute, 191 anti-Islam bills have been introduced in 39 states between 2009 and 2016. Interestingly, their research finds that no such legislation was proposed in the immediate aftermath of September 11 or during President George Bush’s eight-year tenure in the Oval Office.
Rather, the anti-Sharia legislative movement seems to correspond with the emergence of the birther movement, questioning President Obama’s citizenship, and the rise of the Tea Party. It peaked in 2011–with 56 bills introduced–when Rep. Peter King (R-NY) led congressional hearings titled, “The Extent of Radicalization in the American Muslim Community and that Community’s Response.”
Several months later, the American Bar Association, the largest voluntary professional organization of lawyers and law students in the country, adopted a resolution opposing such bills, depicting them as “duplicative of safeguards that are already enshrined in federal and state law.” The resolution also asserted, “… such initiatives that target an entire religion or stigmatize an entire religious community, such as those explicitly aimed at ‘Sharia law,’ are inconsistent with some of the core principles and ideals of American jurisprudence.” In essence, laws that single out Americans on account of their religious beliefs are unconstitutional.
The recent uptick in anti-Sharia legislation in the wake of Donald Trump’s ascension to the White House is notable particularly given his distressing record of vitriolic rhetoric during the 2016 U.S. presidential election cycle. For instance, on the campaign trail – from North Carolina to Florida, from Wisconsin to Nevada, from Minnesota to Michigan, from Virginia to Iowa – Trump frequently referred to “radical Islamic terrorists” in his speeches while promising to keep them “the hell out of our country.”
Trump also often tweeted about “radical Islam,” to criticize President Obama and Hillary Clinton’s reluctance to use such terminology; to distract voters from Gold Star parents Khizr and Ghazala Khan’s patriotic message; to attack Senator John McCain; and to support Gen. Michael Flynn, who now serves as his national security advisor. Additionally, in a CNN interview, Trump explained to Anderson Cooper, “Islam hates us.” When asked whether hate was intrinsic to the world’s second-largest religious tradition with more than 1.6 billion followers, he answered, “You’re gonna have to figure that out, OK?”
According to the Haas Institute researchers, eighteen anti-Islam bills have already passed in eleven states. Significantly, American Laws for American Courts (ALAC), an anti-Muslim extremist initiative, has provided model statutory language primarily drafted by David Yerushalmi. The impetus for such Islamophobic initiatives is described by the Center for Security Policy (CSP), an anti-Muslim extremist organization for which Yerushalmi serves as general counsel.
In its 2015 publication, Shariah in American Courts: The Expanding Incursion of Islamic Law in the US Legal System, CSP President Frank Gaffney warns, “…our own legal system can be – and is being – used as a mechanism to anchor and expand in this country shariah…” Gaffney, at whose events Trump has spoken, also states, “the effort to invoke shariah in U.S. courts is expanding.” Touted by Steve Bannon (now Trump’s assistant and strategist) as an expert, he credits the Muslim Brotherhood with that expansion and lauds ALAC’s anti-Sharia legislative movement for upending the Brotherhood’s “secret plan” to “destroy Western Civilization from within” apparently by subverting the state and federal judiciary.
To support this argument, Shariah in American Courts cites 146 alleged cases since 1950 that raise the specter of Islamic law, including international commercial transactions. Assuming for the sake of argument that any reference to Islam in court proceedings constitutes a more nefarious threat to Western civilization than Judaism, Christianity, Buddhism, Hinduism or any other faith tradition, CSP overstates it. In California, where CSP alleges ten Islamic law cases since 1950, for instance, there were more than 7 million new cases filed in 2015 alone. In Florida and Georgia, more than 3 million new cases were filed the year of the report’s publication. Texan courts saw more than 12 million new cases in 2015.
Yet, in one Islamophobic publication after another, CSP alleges a stealthy Muslim Brotherhood agenda that seeks the “triumph of Shariah.” Significantly, CSP also warns that even Muslim immigrants, including refugees fleeing violence in war torn countries, are waging “a form of jihad via colonization called hijra.” CSP misstates, “the hijra strategy is an important part of a covert, pre-violent ‘civilization jihad’ pursued by the Muslim Brotherhood.”
Essentially, CSP foments fear and suspicion about Islam and Muslims by falsely claiming, “migration is a religious obligation for Muslims to spread Islam and build the Islamic state.” Once settled in the America, CSP misleads, Muslim immigrants will seek to implement sharia. In fact, in April 2015, just months prior to the San Bernardino attack when Trump first proposed a Muslim ban, CSP advocated for a moratorium on Muslim immigration.
But, even prior to Trump’s Executive Order making good on his campaign promises about “Islamic radical terrorists,” discussions surrounding anti-Sharia bills in state legislatures were often shrouded in xenophobia. As proponents of those initiatives, modeled after the ALAC statute, discussed their concerns, many of the Islamophobic conspiracy theories articulated above emerged.
In Montana, for instance, where the proposed bill references “foreign law” but means Islamic law, local news media reported, “proponents repeatedly expressed fears that immigrants and refugees coming to the United States would eventually demand sharia law supersede the constitutions of the United States and Montana.”
According to another news report, “…many of the dozens of speakers told the Senate Judiciary Committee they were afraid that Muslim refugees and immigrants would attempt to introduce Sharia Law, the Islamic legal code, in the absence of Regier’s bill.” A former state senator noted, “I have great concerns about the motivation behind resettlement of dangerous immigrants disguised as humanitarian refugees, which is of course the lead-in purpose for this kind of bill.”
Since Trump signed the Executive Order into law, many experts have observed that it is not supported by research-based evidence. For instance, according to a recent 2017 report from Duke University’s Triangle Center on Terrorism and Homeland Security, violent extremism dropped by 40 percent in the Muslim American community in 2016 as compared to the prior year. The report notes that while those self-identifying as Muslims have taken 123 American lives over the course of the past fifteen years, more than 230,000 Americans were murdered in the same period. Moreover, in 2016, 188 Americans were killed in mass shootings.
Indeed, the de facto Muslim ban, anti-Sharia bills, and the new legislation seeking to designate the Muslim Brotherhood a foreign terrorist organization are not actually about protecting us from terrorism.
It’s about Islamophobia.
Engy Abdelkader, JD, LL.M., is full-time research faculty at Georgetown’s Edmund A. Walsh School of Foreign Service where she is teaching a graduate seminar, International Human Rights Law and Terrorism. A senior fellow with the Bridge Initiative, a research project on Islamophobia, Abdelkader is the author of When Islamophobia Turns Violent: The 2016 U.S. Presidential Elections. She graduated from the University of Pennsylvania Law School with academic distinction.