Caliphate on the Range? The Shariah Precedent in American Courts
Judging by how Oklahoma voted in the recent election, one might conclude that despite its tiny Muslim population, Oklahoma was on the verge of becoming an Islamic caliphate in Middle America. The reality is of course far different. Oklahoma State Question 755, which passed, asked voters whether state courts should be forbidden "from considering or using Sharia Law." Similar legislation is being considered in Tennessee, and Louisiana recently became the first state to pass several bills banning international law from its courts. Although the Louisiana bills didn't mention shariah explicitly, they were apparently motivated at least in part by a similar distaste for Muslims and their religious law, and a desire to "protect" constitutional law. These constitutional law protectors appear, however, to be a little fuzzy on what constitutional law actually means, how it allows for various forms of religious arbitration and what the state can and cannot do to regulate religious freedoms.
In the discussion and debate surrounding Question 755, supporters in search of an example where the bogeyman shariah was permitted inside American courtrooms kept pointing to a New Jersey case where the court denied a restraining order to a woman who was sexually assaulted by her then-husband. The judge ruled that the husband did not have a "criminal desire to or intent to sexually assault" her as the husband was merely under the impression that he was exercising his prerogative as a husband under Islamic law. What's rarely reported, however, is that the decision was promptly overturned on appeal because the application of shariah, or the "cultural defense," conflicted with civil law.
This example is noteworthy not just because the decision was overturned because it got the law wrong, or that it is the only one of its kind, but because it is an atypical example of how shariah has made an appearance in American courtrooms. The typical cases are far from frightening. For example, arbitration under shariah law is permitted in the U.S., just like arbitration according to Christian principles or Jewish religious tradition is permitted, or according to any other set of rules two contracting parties may agree to. Indeed, prominent Christian groups like PromiseKeepers have long required Christian arbitration clauses in their contracts with vendors.
The crucial feature of any kind of arbitration is that an arbitrator, whether religious or not, has no ability to enforce the arbitral decision; only state or federal courts have that power. In deciding whether to enforce arbitral awards, civil courts first review whether the parties agreed to take part in the arbitration of their own free will. Courts also review the arbitral decision to ensure that arbitrators are neutral, and that the resulting arbitral decisions are neither grossly unfair nor undermine public policy. There are thus already an array of carefully crafted safeguards in place to protect individuals.
Despite the long-standing opportunity to enforce religious arbitral awards in American courts, Sharia arbitration is still very rare in comparison to other sorts of arbitration. And oddly enough for those who believe Sharia discriminates against women, in the case of divorce proceedings, some women turn to shariah arbitration to enforce rights that are not granted by civil law but are provided under shariah. Muslim women are guaranteed a mahr (dowry given to the wife as part of the Islamic marriage contract), which becomes due and payable in the event of a divorce if it has not been paid during or at the time of the marriage. Women getting a divorce sometimes choose to arbitrate under shariah law in order to enforce the payment of the mahr. The outcome of these cases has varied depending on state law. For example, a California court would not enforce a mahr because it violated state law regarding "profiteering from divorce." However, a court in New York enforced a mahr because it conformed to state statutory requirements. As these cases show, for decades state courts have been policing shariah arbitral awards for compliance with public policy.
A civil court's involvement with religious matters is, however, limited to cases where it can enforce civil law without deciding questions of religious doctrine or requiring individuals to conform to religious law. For example, in a New Jersey case that involved the regulation of kosher foods in keeping with principles of Orthodox Judaism, local government officials had implemented regulations to monitor merchants and ensure that they would keep kosher according to a particular school of Judaism. The state court held the system to be unconstitutional because government would take on an impermissible role of setting standards that were based on religious, not civil, law.
Although the court declined to use the civil law to enforce religious standards, it did suggest a constitutionally appropriate way to prevent kosher fraud by requiring "those who advertise food products as 'kosher' to disclose the basis on which use of that characterization rests." Such regulations would be permissible because the courts could enforce a civil contract between two parties without deciding on any questions of religious doctrine or requiring an individual to conform to a religious law. The rule in the kosher case applies equally to shariah: civil courts cannot decide religious questions.
The role of civil courts in determining matters that individuals choose to regulate according to religious law is an intricate one that the courts have already clearly answered. But are these finer issues of the religion-state relationship of any significance to the backers of anti-shariah measures like State Question 755? Or is the effort a combination of both political advantage-seeking and fear of Muslims — not to mention just pure silliness? Sadly, the notion of shariah, or Islam, "taking over" America in a manner somewhat akin to the Seed Pods from The Return of the Body Snatchers seems to be infecting segments of the national political discourse, despite its inherent absurdity.
Asma T. Uddin is a legal fellow at ISPU and the founder and editor-in-chief of altmuslimah.com. She is also an international law attorney with The Becket Fund for Religious Liberty, a non-profit, non-partisan, public interest law firm based in Washington, D.C.
This article was published by the Huffington Post on November 6, 2010: