Politics & Policy

Elena Kagan’s ‘Don’t Ask Don’t Tell’ Sharia Policy

Political willfulness is not the judicial temperament.

I wonder if Elena Kagan knows about Sakineh Mohammadi Ashtiani.

Ms. Ashtiani is about to be stoned. That’s where they bury you up to your chest and hurl rocks at you until you die. The rocks can’t be too big. You see, this is real torture, religion-of-peace torture. It’s the kind that happens every day but that Democrats prefer not to talk about. With stoning (or “lapidation” as the press gently call it on those rare occasions when it is mentioned at all), the ordeal must not end too quickly. Otherwise, it might not make the right impression, as it were, on the victim — the sinner — and the community at large.

Had the solicitor general heard about Ms. Ashtiani’s plight, one imagines, she’d have told her to get herself to the nearest courthouse and seek the protection of the law. Alas, it is pursuant to the law that this barbarity will take place. The stoning of this 43-year-old mother of two has been ordered by a court in her native Iran, where the only legal code is Allah’s law, sharia. It is the Islamic sentence for adultery, the crime to which Ashtiani confessed after serial beatings by her interrogators.

During her a stint at the Clinton White House, we now know, Ms. Kagan struck the pose of a champion of women’s rights — at least if you weren’t an unborn girl. So fierce was her devotion to the cause of “reproductive freedom” that she subverted science in the service of abortion on demand — specifically, to preserve the partial-birth abortion procedure, which exceeds even stoning in its ghastliness. She then went on to Harvard Law School where, as dean, she became the champion of sharia.

Not of stoning and other grotesque penalties, of course — nothing so obviously offensive. To hear progressives tell it, we can do nice, clean, friendly sharia, just like we do nice, clean, friendly Islam. “Lapidations,” they will tell you, are no different from jihadist suicide bombings: outmoded vestiges of a long-forgotten time. Except they’re not. They are undeniably rooted in Islamic scripture, and they are happening today, with frequency, wherever sharia reigns. That is because the “moderate Islam” progressives like to banter about is a mirage in search of a cogent set of principles. There is no moderate Islam that can compete with the mainstream, sharia Islam. Thus the crimes and punishments, in all their ghoulishness, endure.


At Harvard, Dean Kagan’s gay-rights activism was as limitless as her pro-abortion activism had been. She banned on-campus military recruitment. Doing so was a flagrant violation of federal law, but she rationalized it by her moral outrage over the armed forces’ “Don’t Ask, Don’t Tell” policy. Once again striking the leftist’s brave “speaking truth to power” pose, she lambasted DADT as “a profound wrong — a moral injustice of the first order.” 

It was a phony courage, the kind where you rattle your “social justice” saber in front of a pretend dragon, knowing your friends will cheer. The kind where you know it won’t cost you anything. The military wasn’t going to do anything to Kagan, and DADT wasn’t a mere military standard. It was a statute enacted by a solidly Democratic Congress with the approval of President Clinton. Shortly after he signed DADT, President Clinton offered Kagan a position on the White House staff. Did she grandstand? Did she speak truth to power with a scoffing denunciation about the profound moral injustice Clinton had endorsed? Not exactly. She accepted the gig in a heartbeat, ditching a coveted tenured professorship at the University of Chicago’s law school, one of America’s finest.

Real courage at Harvard would have called for condemning the university’s profoundly immoral, gluttonous promotion of sharia. While Kagan was at the law school, her patron, Harvard’s president Larry Summers, accepted a stunning $20 million donation for the creation of a program of studies to lionize Islam’s history and jurisprudence. The cash came from the Saudi prince Alwaleed bin Talal, the billionaire investor whose attempted $10 million contribution to the Twin Towers fund had been refused by New York mayor Rudy Giuliani when bin Talal blamed the 9/11 atrocities on American foreign policy. Summers, the anti-Giuliani, not only took the money but named the program and an endowed professorship in the prince’s honor. And why not? By then, as Ben Shapiro reported, Harvard’s law school already had three Saudi-funded institutions devoted to the study of sharia.

Stonings are common in Saudi Arabia, where, as in Iran, sharia is the only law of the land. Beheadings are common, too. A vice patrol, the mutaween, monitors the population, especially the women, to ensure compliance with sharia standards of dress, prayer observance, and segregation of the sexes. Sanctions are draconian, as a 19-year-old woman learned in 2007, when she was sentenced to 200 lashes with a rattan cane after being gang-raped. Saudi Arabia’s crown jewels, Mecca and Medina, are closed to non-Muslims; forget about building a church or synagogue in those cities — non-Muslims are deemed unfit to set foot on the ground. The slave trade was still officially carried on in the kingdom until 1961 and has been indulged unofficially ever since. Slavery, after all, is expressly endorsed by the Koran (see, e.g., Sura 47:4, 23:5-6, and 4:24) and was practiced by Mohammed himself. The Koran and the prophet’s legends are the prime sources of sharia.

Yet there were no condemnations from Dean Kagan over the prince’s lavish gift. To the contrary, she proceeded to forge the law school’s “Islamic Finance Project.” Its purpose is to promote sharia compliance in the U.S. financial sector.

To be sure, American law discriminates against homosexuals in the narrow area of military service. But it does not persecute them. Indeed, it tacitly permits them to serve as long as they keep their sexual orientation private. Were that not the case, President Clinton would not have signed DADT. In contrast, sharia brands homosexuals enemies of the Muslim state. They must be “punished, in fact, killed,” instructs grand ayatollah Ali Sistani, Iraq’s highest jurisprudential authority, one who is widely reputed to be a “moderate” and who, relatively speaking, probably is. He added in his fatwa that people who engaged in gay sex “should be killed in the worst, most severe way of killing.”

While sharia societies are backward, they do get quite creative, as Ms. Ashtiani can attest, when their legal authorities green-light severe methods of killing. It is no surprise, then, that homosexuals are brutally abused in post-Saddam Iraq. The same is true in post-Taliban Afghanistan. That is because in Afghanistan, just as in Iraq, the majority Muslim population adopted an American-brokered constitution that established Islam as the state religion, installed sharia as part of the fundamental law, and expressly stipulated that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.”

Besides gruesome deaths for homosexuals and adulteresses, these “beliefs and provisions of the sacred religion of Islam” hold that apostasy (the renunciation of Islam) is a death-penalty offense. Similar treasonous affronts to the umma, such as proselytism for Christianity, are also met with brutal punishments. Sharia regards women as chattel: Their rights to travel, socialize, marry, and inherit property are sharply restricted; their courtroom testimony is discounted to half the value of a man’s; they may be subjugated in polygamist marriages or kept as concubines; and they are routinely subjected to the pain and indignity of genital mutilation.


But no, the Kagans tell us, they’re not endorsing all of sharia. Of course they don’t mean to abet the sundry cruelties and the systematic abuse of women, homosexuals, apostates, and non-Muslims. They simply want believing Muslims to be able to participate in our markets without transgressing what they see as sharia’s worthy prohibition against the payment of interest in financial transactions.

Right. What they actually want, like Harvard wants, is to get their mitts on Gulf petrodollars. But even if we take their protestations at face value, they are wrong in every way. To begin with, sharia is not a Chinese restaurant menu, inviting you to pick one from column A and one from column B. It is the indivisible legal framework for a comprehensive socio-political and economic system: Islam. In that system, the state regulates all aspects of human life and seeks forever to expand its dominions.


As Daniel Pipes recounts in reviewing the important work of Duke’s Timur Kuran, sharia-compliant finance (SCF) is the mid-20th-century brainchild of the Islamist intellectual Abu-Ala Mawdudi. His motive, the very antithesis of ecumenical inclusiveness, was economic jihad. As Pipes puts it, Mawdudi sought “to minimize relations with non-Muslims, strengthen the collective sense of Muslim identity, extend Islam into a new area of human activity, and modernize without Westernizing.” In effect, SCF is the financial iteration of sharia’s overriding objective: to insulate and fortify the umma for inter-civilizational battle.

I am indebted to the scholar Andrew Bostom for this assessment of SCF from the architect himself, an excerpt from Mawdudi’s paper, “The Economic Problem of Man and its Islamic Solution”:

If anyone thinks it feasible that this economic system can be successfully implemented even if divorced from the complete ideological, moral, and cultural system of Islam, I will humbly request him to get rid of this misunderstanding. This economic system has a deep relationship with the political, judicial, legal, cultural and social system of Islam. And all these are fundamentally based on the moral system of Islam. . . . If you do not accept this creed, this moral system and the whole of this code of life, completely as it is, the economic system of Islam, divorced from its source, cannot be maintained or administered in its purity for even a single day, nor will any appreciable advantage accrue from it if you take it out of its wider context and then seek to apply [it] to your life.

Kagan and other apologists for SCF would absolve themselves from the real-world consequences of their allegedly well-intentioned diversity fetish. But legitimizing any aspect of sharia is the endorsement of all of it. Moreover, there is no cut-and-dried separation of sharia brutality from the tidy, white-collar world of financial transactions.

To pull off the SCF chicanery, financial institutions hire as advisers Islamic clerics who are expert in Muslim jurisprudence — there being, again, no separation between divine edicts and the secular law in Islam. It is those clerics, many of them Islamists, who decide what transactions are permissible. And very often, to purge the taint, prohibited interest payments are diverted to Islamic “charities.” It all sounds wonderful . . . except for what they don’t tell you: The major schools of Islamic jurisprudence teach that support for violent jihad is a legitimate form of charitable giving.

Indeed, as the Middle East Forum’s Raymond Ibrahim observes, the Koran actually prioritizes the need to fund jihad over the need to fight it. (See, e.g., Sura 9:41: “Go forth, light-armed and heavy-armed, and strive with your wealth and your lives in the way of Allah!”) In a canonical hadith, Mohammed confers on the financial backer the same glorious status as the mujahid fighter: “He who equips a raider so he can wage jihad in Allah’s path . . . is himself a raider.”

SCF is thus the Islamist triple-play: It elbows sharia’s way into our legal system, from whence it can expand its influence; it institutionalizes financial jihad; and it pressures true Muslim moderates to shun Western practices. It is, furthermore, unabashedly anti-capitalist — another reason the Left likes it so much. As Frank Gaffney points out, the economic meltdown in late 2008 was taken by SCF proponents as “proof of the inherent corruption of capitalism” and the need to replace it with the asserted virtues of sharia.

But let’s put all that aside. Let’s pretend that there were some way you could compartmentalize sharia, some way you could even slice and dice SCF to facilitate market access without all the unsavory fallout. There would still be the matter of Elena Kagan’s bizarre moral universe.

The U.S. military is an unparalleled force for good in the world. Kagan has said as much, but she claims, straight-faced, that it is just this “extraordinary service” to our society that makes DADT “more not less repugnant” — the bathwater that requires throwing out the baby.

But let’s compare the U.S. military with sharia. Sharia is the cause of indescribable suffering in the world: for homosexuals, women, non-Muslims, and Muslims who wish to embrace the West. Yet for Kagan, sharia’s repugnance is irrelevant. Like opposition to DADT and support for abortion, the engagement of Islamists, the embrace of their case against American capitalism, is a progressive cause célèbre. So count Ms. Kagan in. She’ll worry about logic and sharia victims like Sakineh Ashtiani later — if ever.

Sheer political willfulness is an unattractive quality. In a Supreme Court candidate, it ought to be disqualifying.

Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.


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