The Volokh Conspiracy
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Oral Testimony at the House Judiciary Subcommittee Hearing on the "Preserving a Sharia-Free America Act"
It was notable that the GOP members and witnesses made little effort to actually defend the legislation in question.
Yesterday, I testified against the proposed "Preserving a Sharia-Free America Act" at a hearing before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government. This proposed legislation would bar or deport virtually all non-citizen Muslims from the United States by mandating that "Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States."
My written testimony is available here. In it, I explained why the proposed law violates the Free Exercise and Free Speech clauses of the First Amendment, and why - if enacted and upheld by the courts - it would set a dangerous precedent, cause great harm to many thousands of innocent people, and damage US national security by giving a propaganda victory to radical Islamist terrorists. The other witnesses' written testimony is available here.
I embed the video of the oral testimony and hearing below. The hearing featured lots of political grandstanding, as is perhaps to be expected. So I can well understand if some readers decide watching the whole thing isn't worth their time. For those interested, my own opening statement runs from about 1:03 to 1:08:
Notably, the GOP members on the Subcommittee and the other three witnesses (all called by the Republicans; the minority party is allowed only one witness, in this case me) mostly didn't even try to defend proposed bill. Instead, they focused on various issues with Sharia law that - even if valid - would not require mass deportation or exclusion of migrants to address.
I won't try to go over the testimony of the other three witnesses in detail. Many of the concerns they raised were hyperbolic, often to the point of ridiculousness. No, there is no real threat that Sharia law is somehow going to take over the US legal system or that of the state of Texas (the focus of much of the testimony). And it is no grave threat to American values if some Muslims plan to establish a private compound where they live in accordance with their religious laws, especially since it turns out the compound in question will not actually enforce Sharia law on residents. Other religious groups do similar things all the time.
On the other hand, there may be some merit to Stephen Gelé's concerns that US courts sometimes enforce judgments issued by Sharia courts in Muslim dictatorships, in cases where they should not, because it would have harmful or illiberal consequences (e.g. - child custody rulings). The solution to such problems, however, is not to deport Muslim immigrants, but to alter the relevant legal rules on comity and conflict of laws. And, in fairness, Gelé's testimony did not recommend deportation and exclusion as a fix. If Texas courts are giving too much credence to some types of foreign court decisions, the GOP-dominated Texas state legislature can easily fix that problem!
Finally, the opposing witnesses and others who fear the supposed spread of Sharia law and the impact of Muslim immigrants often act as if Islam and Sharia are a single, illiberal monolith, irredeemably hostile to liberal values. In reality, as noted in my own testimony, there is widespread internal disagreement among Muslims about what their religion entails, as is also true of Christians and Jews. Most Muslim immigrants in the US are not trying to impose Sharia on non-Muslims, or establish some kind of Islamic theocracy. Indeed, many are themselves refugees from the oppression of radical Islamist dictatorships, such as those in Iran and Afghanistan.
My Cato Institute colleague Mustafa Akyol - a prominent expert on Islamic political thought - makes some additional relevant points on the diversity of Muslim thought in a recent article.
Some Muslims do indeed have awful, reprehensible beliefs on various issues. But there are lots of ways to address any danger that poses, without resorting to censorship, discrimination on the basis of religion, mass deportation, and other unconstitutional and repressive policies. The most obvious solution is to simply enforce the First Amendment's prohibitions on the establishment of religion, and persecution and discrimination on the basis of religious belief.
This was the third time I have testified in Congress. The other two times were at the invitation of Senate Republicans (see here and here). The issues at the three hearings were very different. But in each case, I tried to defend limits on government power that are essential to protecting individual rights to life, liberty, and property. I doubt my testimony had any great impact. But perhaps it made a small difference at the margin.
