What role, if any, should Sharia law play in American civil law?

21 Nov

Emory Law Professor and expert on Law and Religion writes an interesting piece defending a rather unaccommodating position in the pages of Christianity Today.  Here’s a clip:

A constitutional battle over Muslim family law has begun. In November 2010, Oklahoma voters approved a state constitutional amendment banning the use of Muslim Shari’ah and other international laws in its state courts. This was a direct rejoinder to other Western nations allowing Muslim citizens to enforce Muslim marriage contracts in state courts and to resolve family law issues before Shari’ah tribunals without state interference. Oklahoma’s citizens wanted none of it, and they voted to ban the use of Shari’ah altogether. Twelve other states are discussing comparable measures.

In January 2012, however, a federal appeals court upheld a lower federal court injunction of Oklahoma’s amendment. Singling out a specific religious law for special prohibition, the court of appeals concluded, violated the First Amendment Establishment Clause and unjustifiably injured Oklahoma’s Muslim citizens. This leaves Oklahoma courts with a stark choice: allow Muslims to use Shari’ah to govern internal religious affairs and the private lives of voluntary members, or equally prohibit all religious groups from exercising comparable authority through organs of internal mediation, ecclesiastical discipline, and canon law.

Oklahoma can likely escape this choice by crafting a more neutrally-phrased constitutional amendment. But deft legal drafting will not end the matter. As American Muslims grow stronger and anti-Muslim sentiment in America goes deeper, constitutional and cultural battles over Muslim laws and tribunals will likely escalate.

Many Shari’ah advocates reject America’s sexual revolution of the past half century, built on cultural and constitutional ideals of sexual privacy, equality, and autonomy. They reject the easy-in/easy-out system of American family law that has brought ruin to so many women and children. They reject America’s legal protections for nonmarital sex, sodomy, abortion, and same-sex marriage. Distrusting the modern liberal state’s capacity to reform its laws of sexuality, marriage, and family life, Shari’ah advocates want out.

They have two main objectives: to give Muslims the right to opt out of the state’s liberal family law into their own religious community’s morally rigorous system; and to give Muslim religious officials the right to operate that system for voluntary members without undue state interference or review.

Some advocates want separate Muslim arbitration tribunals that operate alongside the state; others want independent Shari’ah courts akin to those of Native American tribes or those of modern-day India. Some are pressing for gradual, piecemeal accommodations of Muslim family law, fearing the dominance of one form of Shari’ah over another. Others want more rapid wholesale change in pursuit of what they call “family law pluralism.” But the bottom line is the same: to allow Muslim communities eventually to become more of a law unto themselves in the governance of marriage and family life. For the past decade, law journals, blogs, and conferences have been full of sophisticated papers pressing this case. Readers can get a good sampling of these arguments in two superb new edited volumes: Shari’a in the West (Oxford University Press) and Marriage and Divorce in a Multicultural Context (Cambridge University Press).

The three most prominent arguments for the use of Shari’ah family norms and procedures in America (and the rest of the West) are based on religious freedom, political liberalism, and nondiscrimination. Though each argument seems plausible on the surface, they are all, to my mind, fundamentally flawed.

Here’s the rest

Elsewhere, Matthew Schmitz departs from Witte’s position over at First Things.  He writes:

Witte argues that we shouldn’t make special accommodations to Sharia that go outside current constitutional and legal freedoms. Fair enough. But how is this an argument for passing legislation that actually restricts freedoms to make religious contracts currently enjoyed by all Americans? If a marriage contract doesn’t run afoul of our laws or our Constitution, what does it matter whether or not it references Sharia? Should it be ruled out? If so, what about an otherwise identical contract that doesn’t reference reference Sharia? Witte’s argument is, at its best, an argument for inaction—not for the measures passed by states like Oklahoma and Kansas.

Witte makes a further curious argument, saying that we should be less accommodating of Muslim religious liberty claims than those of Jews and Christians because they’re relative newcomers to the Western scene:

 The current accommodations made to the alternative legal systems of Christians, Jews, first peoples, and others in the West were not born overnight. They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides.

Witte offers a useful reminder that every political settlement arises from a specific historical situation and not just from the implementation of abstract principles. This is true and important.

Yet one of the features of our historical inheritance is that we see a value in applying basic standards of equality and fairness that do not make reference to otherwise arbitrary measures—like, say, how much a group was or was not persecuted in the past. By Witte’s standards, we ought to be especially skeptical of religious freedom claims made by American Protestants, the long-time guardians of America’s de facto establishment. Or perhaps we should be most skeptical of claims made by Catholics, on account of their centuries of religious dominance? Hazing is not a democratic principle, and if it were, Muslims would be well on their way to passing.

Witte’s basic error, like those of other advocates, is to mistake for a debate about the nature of Sharia what is really a debate about the nature of American law. Our constitutional system is not broken and in need of fixing. The appearance of Muslims in America has not suddenly made it possible for citizens to enter into contracts that are otherwise unallowable. The question is: Will we extend the same protections—no more, no less—to American Muslims that we extend to others? If we seek to protect American constitutionalism and guard against illiberal excesses, our answer ought to be a resounding yes. And our response to anti-Sharia measures should be an equally loud “no.”

This issue will continue to emerge as a kind of paradox where the constitution’s protection for religious liberty might be used by some to foment views and practices that potentially undermine the constitutional order itself.  Stay tuned.

NOTE: According to Pew Surveys, American Muslims (unlike many of their European counterparts) appear far less interested in implementing Sharia law.  That’s true of them in general, though younger Muslims are warmer to the idea.

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