…and it’s a good thing, too!
It’s hard not to alternatively ridicule and condemn disgraced former House Speaker Newt Gingrich’s call to ban Sharia law in the United States. Josh Marshall does both through commentator NR, who argues that applying Sharia law in US courts would violate the Establishment Clause.
I think that’s wrong, for the simple reason that Sharia constitutes the substantive law of many countries. And it shows just how ignorant and irresponsible Gingrich is.
Say you sign a contract with a firm in the United Arab Emirates. That contract will have a “choice of law” clause, mandating under the law of which country the contract will be construed. Firms obviously haggle over this, and usually firms will want to have the choice of law clause based upon a law with which they are familiar. Indeed, I know several trasnactional attorneys who specialize in drawing up contracts to comply with Sharia for big investment deals, and undoubtedly some of those contracts say something along the lines that they will be construed according to Sharia, or at least will not directly violate Sharia.
So when Gingrich says that he wants a statute forbidding the enforcement of Sharia in the United States, he is saying he wants to 1) tell businesses how they are supposed to write their contracts; and 2) thus give American businesses a competitive disadvantage via-a-vis their foreign competitors.
Similarly, Sharia would come into play if US courts have to construe contracts written and executed in Muslim countries that use Sharia as part of their domestic law. A contract might be signed, executed, and acted upon in another country, making Sharia law clearly the governing body of law; but then the litigant moves to the United States (thus getting the jurisdiction of American courts), requiring the court to construe the contract and use Sharia in doing so.
This happens not infrequently when it comes to marriages, because of course marriages are contracts, and family relationships are made in other countries. Then one of the spouses (probably the wife) moves to the United States. The court then has to apply Sharia in determining custody, child support, etc.
We might very well say that a marriage/divorce is precisely that situation where US courts should not apply Sharia because of perceived bias against women. That may or may not be true, but the bigger point is that other federal statutes as well as the equal protection clause would forbid the application of foreign law that would discriminate against women.
Of course, Gingrich couldn’t say any of this. He couldn’t make the point about not discriminating against women because Values Voters seem to believe in that sort of discrimination: Christine O’Donnell has made comments saying that the US military is weakened by women’s participation. Virtually all Republicans voted against the Lili Ledbetter Act, which strengthened sex discrimination provisions in Title VII. Conservatives celebrated when the Supreme Court struck down provisions of the Violence Against Women Act (and don’t use the federalist argument here: none have moved to implemenet VAWAs at the state level).
And he couldn’t make the point about businesses because he didn’t think about it. He didn’t know. He didn’t care. He wasn’t concerned about the impact of his position on US business. He just wanted to be an anti-Islamic bigot. And he succeeded.