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Abstract

The Article proceeds in three parts: in Part II, the Article describes three anti-shari’ah measures. It describes Oklahoma’s Save Our State amendment to show how these laws target Islam. It also reviews the recent decision by the Tenth Circuit Court of Appeals affirming the grant of a preliminary injunction against the certification of Oklahoma’s constitutional amendment. It then describes Arizona’s law that targets shari’ah as well as other legal traditions. It also examines the original version of the Tennessee bill to illustrate the motivations behind the revised, watered down version that was eventually passed by the legislature. Part II concludes with an examination of the chief architects of the model law disseminated to various states and their motivations. The aim is to show how the drafters of the laws were preoccupied not by protecting Americans from a threat of terrorists in their midst, but by defining “American” identity through the law. In Part III of this Article, I take a deeper look into the claim that the laws are necessary because “shari’ah creep” is occurring through family law and will eventually bleed into other doctrinal areas of our secular system. Consequently, I focus on a number of family cases here to show how the courts have dealt with religious law in the United States, particularly in enforcing foreign judgments from Muslim majority countries. This analysis makes clear that family law is not the gateway for shari’ah to enter the judicial system (thereby posing a threat to our security) and that such a view discounts the robust constitutional, choice of law rules and public policy preferences that restrain judges from diluting our secular system. Finally, in Part IV, I raise the question of what these laws are really about if they are not about shari’ah creep or our security. I argue that while these laws may be discounted as ineffectual or unconstitutional, they have an effect on society. They continue the socially acceptable expulsion of Muslims from the mainstream and their marginalization. Far from being innocuous, such strategies of (re)constructing Muslims as the enemy have real lived consequences such as heightened surveillance regulation, incarceration, and even death. I conclude with some observations about decoupling stereotypes of racial and religious identity from counter-terrorism and integration as opposed to assimilation as a way forward. In this final section, I argue that rather than being distracted by creating outsider groups based on identity, our security is better served through inclusion of all those who have a stake in the security of their communities and their families.