Q&A with Hassan Shibly

Hassan Shibly: School Curriculum and Islam, Sharia in US Courts, and the Unconstitutionality of Anti-Sharia Law Legislation

 
Q1: Has legislation been introduced that stipulates what, or how, Islam is taught in public schools in your state?

In Florida we’ve engaged with ACT for America on both the county and state level, and in several counties they’ve tried to use and hijack the local Republican party to stage protests with the aim of trying to get the school board to remove textbooks that speak about Islamic history in a favorable or accurate light. Their propaganda, and basic argument is that Islam is evil, the prophet Muhammad is evil, and therefore we shouldn’t be teaching anything about Islamic history. ACT for America’s efforts to remove textbooks happened on the county level— they’ve been fairly unsuccessful at the county level—and we’ve actually been able to stop them from changing the school curriculum. Volusia County was one of the biggest fights we had here in Florida, and there were five or six public school students, not from the Muslim community, who took charge and collected 500 signatures asking the school board not to give in to what they called ‘the book burners,’ who were advocating for the removal of certain textbooks. There was a lot of support from the local Democratic Party, and ultimately, the books remained as they are.
 
We’ve seen this fight in several counties, and now ACT has taken it to the state level, and ACT for America is really the group pushing forward efforts to impact education in public schools about Islam. At the state level, ACT for America was trying to pass legislation requiring each county to pick its own textbooks independently of the state process, and the reason ACT is pushing for this is so it would engage them in confrontation with each local county regarding the schoolbooks. The lawmaker who introduced the legislation was Senator Alan Hayes, and he’s been known for passing around extremely hateful anti-Muslim propaganda in Tallahassee, and he’s also been the one pushing the anti-Sharia legislation, as well as other anti-Muslim legislation. Thank God they failed, and although the statewide legislation they were pushing ultimately passed, we were able to water-down the legislation such that it only reinforced the existing law, which allows school boards to modify the textbook selection, but otherwise still kept the system in place where the state recommends textbooks for local use.
 
Q2: What was ultimately the intent of the bill?
 
The bill would have established that each school board not only has the option—as is the current law, and is the law that we passed—but would require school boards to independently select their textbooks. The bill didn’t mention Islam or Muslims in particular, but it was well known that the intent was to target Islam, and the bill was written in part by the same Senator who wrote the anti-Sharia legislation in Florida. The goal of the bill was to open up a fight, so that the school board fights we were dealing with in a few counties, would have to be fought statewide. All school boards would then be independently forced to review and select textbooks, and then they could push against the textbooks that spoke about Islamic history in an accurate light.
 
Q3: Did Florida pass an anti-Sharia bill using model ALAC language?
 
Yes, we fought it very strongly for five years in a row and defeated it every year. In 2015, a very watered-down version of the bill passed which right now appears to only reiterate existing law, and we haven’t fought it in the courts as of yet. Behind closed doors we were able to work with some Republican lawmakers to have them pass an amendment on the bill before the bill was passed, which essentially took out the most troubling parts.
 
What’s very interesting is, looking at Senator Alan Hayes [one of the main sponsors for the Florida anti-Sharia Law bills] and the information we have about him, we’ve been able to draw a connection to his local Republican club hosting ACT for America speakers, and anti-Muslim bigots to come and bash Islam. That’s the local Republican club he’s based out of, and then he himself is passing out anti-Muslim literature in Tallahassee, and he’s also the one pushing forward these anti-Sharia bills in Florida.
 
Q4:  Is it possible to use Sharia Law in US courts when making judicial decisions? If so, when is it implemented?
 
Firstly, I have trouble with the term Sharia Law. Sharia is a set of principles, and it’s how human beings interpret how God wants us to live our lives. There’s not one set of books, or one set of code, there are certain schools of fiqh, or schools of jurisprudence, and I would even say that the word ‘law’ is a bit too strong, but more like guiding principles of how personal and business, and other affairs should be conducted.
 
So, with that caveat and clarifying what Sharia is, is it possible for Islamic principles to be used in the court? The court is not going to randomly enforce anybody’s religious principles, nor would Islamic principles allow for that frankly. However, you can have a situation where parties freely and willingly choose to enter into contract that set the terms on how those contracts or transactions shall be conducted, and they make sure to have that basis be in Islamic principles. For example, somebody bought a house and they want to have the mortgage agreement be Sharia compliant and not based on interest, such as a rent-to-own contract, and therefore when they write-up the contract, they should be free to make sure that the contract is enforceable, and that both parties are willing to enter into that contract. The same applies to a marriage agreement, or a divorce. However, my perspective as a lawyer is that you should never really have a contract that says ‘our marriage, divorce, business, or anything, shall be done in accordance to the Islamic principles of Sharia’ because that in and of itself is too vague. There are schools of thought that interpret things differently, so therefore, my recommendation as an attorney is always for parties to specify the exact terms, and with reference to Sharia not even being necessary. For example, if you were to put that ‘the dispute shall be resolved according to the principles of Sharia,’ which school of thought is to be used? And do we want the judge interpreting what Sharia teaches? That opens up a can of worms, and we, as Muslims don’t want the court necessarily interpreting or applying our religious law. Rather, what we want is for parties to be free to establish the principles under which their contracts can be enforced, disputed, or applied, or even the terms under which they choose to transact business. From a lawyer's advice to clients, if the contract states, ‘this loan will be at 0% interest’ just put 0% interest, you don’t need to reference Sharia. But with that being said, sometimes contracts, wills, and agreements, do reference Sharia, and my advice is always to break down what that means exactly, and what do those terms cover. However, if they do reference Sharia, they should absolutely be free to enter into such contracts and have them be enforceable, assuming they are specific enough for a judge to safely enforce without the judge overreaching and trying to interpret what Islamic principles teach.
 
Another example, someone could do a katib al-kitab or nikah (an Islamic marriage contract), and be Islamically married, but they shouldn’t expect that agreement to be enforceable by any US court. That would fall into state law, so if the state law recognizes what’s called a common law marriage, which is when a man and women live like they’re married but they’ve never entered into a marriage and they’ve never formally been married through the state, some states recognize that. In those states that recognize common law marriage a katib al-kitab would qualify as a marriage under those state laws, and even then the marriage itself would be governed according to the state rules of marriage. However, if a state does not recognize common law marriage, then effectively while they may have been married Islamically—and they’re free to be married Islamically, nobody should, or can stop them from doing that—a court can’t treat them as a married couple for legal purposes if there’s no recognition of common law marriage in that state. Now, if a man and women want to enter into a marriage that if should there be a divorce, is governed according to the Islamic principles of divorce, then that’s when there is a need to enter into a binding prenuptial agreement before the marriage, to ensure that such happens. My position is if people don’t enter into a prenuptial agreement before the marriage, they have nothing to complain about when they go to divorce and just the state law is applicable, but I believe the US law is wide enough to encompass people’s preferences generally when it comes to these types of things. People need to take advantage of that and enter into prenuptial agreements and other contracts to make sure that their religious preferences are observed.
 
There is a principle in US law that people should be free to enter into contract as they so please, and the reason contracts are important is because people can govern their lives according to their religious principles with the people they choose to enter into contracts with. If people choose to enter into such contracts they should be protected, but at the same time if people fail to enter into such contracts, you can’t ensure and expect a state to enforce something that you never bothered to create a contract for. Now, the problem with the anti-Sharia laws is they are actually taking away people’s freedoms to enter into such contracts, because they are saying that contracts that are based in Islamic principles will not be enforceable, and that’s troubling on multiple levels. One, it’s troubling from a religious freedom perspective for limiting someone's freedom to practice their faith, and two, on a completely secular level it’s limiting people’s right to freely enter into a contract of their choosing.
 
Q5: Legally speaking, in the United States is Sharia only applicable when entering into contract?
 
That’s the only relevant or applicable need for Sharia principles in regards to legal discourse. If you want to do business in accordance with Sharia principles, or you want to have a marriage where the divorce is done in Islamic principles, both of these fall back onto contract law.
 
About the anti-Sharia laws, in Tennessee they tried to pass a law saying that adherence to Sharia is treason, punishable by twenty years in jail. That’s a worse case anti-Sharia law. That’s one of the worst cases because that’s a catchall, and that will practically out-law being Muslim. For me praying five times a day that’s practicing Sharia, me giving charity that’s practicing Sharia, Sharia encompasses everything I do as a Muslim. So, for me practicing my faith in anyway, that’s become illegal under that law, and it has the worst impact. I don’t think any court would uphold that, but that’s the worst-case anti-Sharia law. Now from that, you have the watered-down versions which simply instead of banning Sharia as a whole, which includes me praying in my home, me giving charity, me doing things that have nothing to do with contracts, just my own personal state of affairs, they water it down to say ‘courts will not enforce agreements based in Sharia.’ With this version of an anti-Sharia law, if somebody did have a prenuptial agreement saying, ‘our divorce will be conducted according to Sharia,’ that agreement wouldn’t be enforceable, or if people did a business contract, or a will, that wouldn’t be enforceable, which I see as wrong. Courts should not be stopped from enforcing contracts people freely enter into, especially if the reason is based on religious discrimination.
 
Q6: Are anti-Sharia laws or anti-foreign laws necessary as judges already have the power to apply state law and US law in court?
 
The best description of the anti-Sharia legislation are ‘solutions in search of a problem,’ or even ‘nonsense in search of a problem.’ There’s no probable court enforcing or applying foreign laws or foreign principles. This isn’t something we’ve seen, there’s already this principle in the law that courts cannot enforce agreements that are unconscionable, or completely contrary to the rules of justice, a court isn’t going to enforce an agreement saying that a women can never see her children, or a husband can never see his children, not unless there is a justifiable safety reason to have that agreement. Generally, a court would come to a conscionable agreement. There’s already sufficient protection where a judge can’t simply enforce any laws they wish, they can only enforce the state law, and the state law already provides that unconscionable agreements shall not be enforced, but it also provides that people are free to enter into contracts of their own choosing. The anti-Sharia laws started out with the intent to completely outlaw the entire Muslim faith. They couldn’t do that, so then they we’re trying to stop Muslims from having their contracts honored by the courts, and that would generally fall into areas of divorce, business transactions, and wills. The anti-Sharia laws themselves are blatantly contrary to the US constitution and freedom of religion enshrined in the bill of rights.
 
Q7: Are the anti-Sharia, anti-foreign law bills unconstitutional?
 
They absolutely are. They are contrary to the United States Constitution on a few different grounds, the strongest points being that you can’t discriminate based on religion and inhibit people’s free exercise of religion, courts can’t do that, nor can you limit people’s freedom to enter into contract. Those two points, in and of themselves, are sufficient reasons to show why these laws are extremely troubling.
 
Q8: What might we anticipate are the future effects or dangers of implementing American Laws for American Courts amendments or acts?
 
The biggest danger is that ALAC demonizes and marginalizes the American Muslim community. It reinforces the message of extremist groups that want to put Islam and America against each other, and makes Muslims feel marginalized, as well as promotes conflict. That’s the first thing. We’ve noticed in the last year [2015] a 500% increase in anti-Muslim hate crimes, that’s a direct connection with the rise of politicians targeting American Muslim communities, politicians like Senator Alan Hayes are actually demonizing entire Muslim communities and legitimizing the hate crimes, the attacks against mosques, and the violence against Muslims. The second thing is that it’s giving people freedom to obstruct other people’s faith, and ability to enter into contract. Now, I think those can be overcome in the courts, I really don’t think much of the ALAC laws will last legal challenges, and generally the laws don’t expire, but they would fail on legal challenges and appeals. The bigger problem is the dehumanizing and attacking of the American Muslim community, and I would say that the damage is done in the process of trying to pass the laws.
 
Q9: Does this affect other communities outside of the Muslim community?
 
Yes, first of all these laws will even limit the rights of Jewish community members to practice their faith, ultimately even Christian people to practice their faith, and it undermines the freedom of religion of all Americans. My main talking point is that Islamophobia is one of the biggest threats this country faces because it’s the tool that’s been used to undermine freedom of religion, civil rights, and justice in America to promote conflict over seas. When one group loses their rights, all Americans lose their rights.   
 
Q10: Final comments?
 
It’s very ironic that those who claim to be patriotic Americans are promoting laws that are extremely antithetical and contrary to the US Constitution and to the Bill of Rights. Such individuals and groups are a threat not just to the Muslim community, but to the liberty of all Americans and it is something that all Americans should be concerned with.