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Anti-Sharia and anti-feminist: The case of North Carolina

North Carolina's anti-Sharia law also strictly regulates abortion clinics.

Last Modified: 07 Sep 2013 21:06
Rafia Zakaria

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.
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North Carolina Governor Pat McCrory said the new law was unnecessary [Hal Goodtree/CC]

It has been a busy summer for the legislature in North Carolina. On August 26, 2013, Governor Pat McCrory signed into law a bill that prevents North Carolina state court judges from applying "foreign law" in family law cases. When he signed it, Governor McCrory said that the law was unnecessary. That, however, did not constitute enough of a reason for a veto.

The story of the North Carolina bill is a fascinating one, its twists and turns demonstrating just how the flavours of bigotry and patriarchy can coalesce into united political ventures. The bill began as "House Bill 695" and came up for debate late in May of 2013. In that debate, leading up to the vote, Republican members of the North Carolina House compared the threat of Sharia in the United States to the attack by the Japanese on Pearl Harbor. In the words of the bill's sponsor, Chris Whitmire: "Take it as fact that this is a very, very present threat that must be dealt with… We are making sure that the most fundamental basis on which we exist is protected." 

 

The text of the bill, fully titled the "Family, Faith and Freedom Protection Act", defined "foreign law" as a "law rule, resolution, legal code, legal system established and used and applied, in a foreign venue or forum," with "foreign" applying to any country or jurisdiction other than the United States.

Also, the bill specifically enjoined the "interpretation of contracts" via foreign law. The breadth was intentional; previous bans on Sharia in other states had been struck down by judges, because of their specific mention of the law of one religious group.

Toting this prohibitory language, North Carolina's House Bill 695 made its way to the Senate. There it found a warm reception and some new language. Late on the night of July 2, 2013, while the bill was under committee review, Senators attached to it severe abortion restrictions, including measures that would prevent the new State healthcare exchanges, established under President Obama's healthcare plan, from covering procedures.

Also attached were provisions that would restrict the ability of physicians to administer abortion-inducing medications. Finally, the Senate added safety regulations on abortion clinics that would result in the shutdown of all but one. In his defence of the additions, Republican Senator Ralph Hise said: "We cannot allow an assembly line procedure that lets doctors run down the hall as they administer death." When the bill, banning both foreign law and restricting abortion, came up for a vote before the Senate the next day, it passed 29-12.

A regular occurrence

The anti-abortion and anti-Sharia nexus is not exclusive to North Carolina

The anti-abortion and anti-Sharia nexus is not exclusive to North Carolina. According to legislative data, twenty-six states have now passed some form of anti-Sharia or anti-foreign law legislation in the past several years. Even though they haven't, as in the case of North Carolina, always tagged anti-abortion measures and anti-Sharia measures together, 15 of the states that have banned Sharia in their courts have also passed some form of legislation restricting women's access to abortions. In some cases, this has come via restrictions on state funding for organisations that provide the services or, as in the case of North Carolina, using safety measures as a means of shutting down existing clinics.

In overt terms, the arguments used to justify bans on Sharia law focus on the perceived threat of Sharia encroaching upon US constitutional law. One of the first states to do so was Oklahoma, where in 2010, 70 percent of voters voted in favour of the "Save Our State" amendment, which banned the application of Sharia in the state.

The measure aimed to amend Oklahoma's Constitution to include a clause banning Sharia. The courts however, did not find the threat of Sharia that had egged on the amendment's supporters to be very compelling.

On August 15, 2013, Federal Judge Vicki Miles-LaGrange ruled that Oklahoma's Sharia ban was not a protection of constitutional rights - but rather a violation of them. The law, the judge ruled, was a violation of the Establishment Clause of the First Amendment of the United States Constitution, which prohibits excessive entanglement between church and state relations. Two weeks later, Governor McCrory of North Carolina seemed undeterred by the judge's exhortation. In the bill passed in his state, "Sharia" was not specifically mentioned, and proponents could argue that it, unlike the Oklahoma amendment, would pass constitutional muster.

The denouement of legislative dramas involving restriction on abortions or bans on Sharia is such that advocates have often operated from a united political platform. However, those contesting Sharia bans and abortion restrictions - whether they are Muslim civil rights groups such as the Council of American-Islamic Relations, which first filed a challenge to the Oklahoma amendment, or supporters of groups such as Planned Parenthood - have almost never done so. The lack of co-operation can be attributed to the fact that Sharia bans are seen as revolving around freedom of religion, while abortion restrictions are seen as inhibitions on a woman's right to choose. In this sense, they involve different sets of rights derived from the Constitution.

More than a coincidence          

The connections between the anti-feminist restrictions on abortions and the singular ban on 'foreign' law may be far more than a coincidence

However, as the case of North Carolina suggests, the connections between the anti-feminist restrictions on abortions and the singular ban on "foreign" law may be far more than a coincidence of being tacked together in a single bill.

A closer look at the actual effects of Sharia bans, in comparing states in which they have been enforced with those in which they haven't, clarifies the picture. In July 2012, Kansas banned Sharia law. In August 2012, a divorce action appeared before a state court, in which a Muslim woman residing in a domestic violence shelter sought divorce from an older, abusive husband.

The couple had been married in Iran and had an Islamic marriage contract. Under US family law, the short duration of the marriage meant that the wife was not entitled to either marital support or alimony payments. Owing to her desperate financial situation (she was also a recent immigrant, having migrated because of the marriage), the wife sought to have her Islamic marriage contract, which stipulated support payments, be enforced.

Solely owing to the Sharia ban, the Kansas court refused to do so. While the divorce was granted, the woman, still residing in a shelter, was unable to avail any of the means she had been promised in her marriage contract. Further evidence of the anti-feminist nature of Sharia bans can be gleaned from cases in other states such as New York, where no Sharia ban exists and where women have been able to obtain support payments based on their marriage contracts when US law would not otherwise provide them.

In sum then, the case of North Carolina's Family Faith and Freedom Protection Act reveals the anti-feminist intentions of those pursuing both Sharia bans and anti-abortion measures. Since the bans do not argue that Sharia law should only be prohibited if it violates principles of gender equality, the blanket ban uses the issue of Sharia to cover not only its Islamophobic intentions - but to specifically deny Muslim women the opportunity to have their marriage contracts enforced. In this sense, it denies Muslim women, who can stipulate conditions in these contracts much like any woman would be able to under a pre-nuptial agreement, the chance to stipulate terms that would guarantee them certain things if the marriage were to fail.

In North Carolina, which has banned all foreign law, this prohibition would extend not only to Muslim women but to any and all women who have negotiated prenuptial agreements in any country other than the United States.

Proclamations by Sharia-ban supporters insisting that the bans are protections of women's rights are also proven false when one notes the robust history of already existing case law that would make it impossible for any aspects of Sharia or Islamic law to be applied, were it against the equality principles of the United States Constitution or required interpretation of religious precepts by US judges.

Sharia bans and restrictions on abortion are thus both restrictions on a woman's right to choose what is best for her. In either case, paternalistic arguments rife with the vocabulary of "protection" and "safety" are used to cover up the core belief that women themselves are not qualified to make the right decisions about their bodies or their marriages or their religious identities. A just legal system is one that respects the specificity of women's experiences and the crucial value of allowing them the freedom to make crucial decisions about their faith and about their bodies.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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