By Eugene Volokh
February 18, 2014
Many people worry about the possible encroachment of Sharia — Islamic law — into the American legal system. Oklahoma voters banned the use of Sharia and other religious law, although the 10th Circuit struck down the ban precisely because it singled out Sharia by name. Other state legislatures have considered similar bans. This week, I’ll be serialising my just-published article that discusses this controversy: Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014) (which is based on the Henry Lecture that I was invited to deliver in March 2013).
In many of the instances that critics see as improper “creeping Sharia,”, I will argue, it is longstanding American law that calls for recognizing or implementing an individual’s religious principles, including Islamic principles. American law provides for freedom of contract and disposition of property at death. Muslims (like Christians, Jews, and the irreligious) can therefore write contracts and wills to implement their understanding of their religious obligations. American law provides for arbitration with parties’ consent. Muslims can use this to route their disputes to Muslim tribunals, just like Christians, Jews and the irreligious often route their disputes to private arbitrators of their choice.
American law provides for religious exemptions from generally applicable laws and from employer regulations. Muslims, as well as Christians, Jews, and others, may claim such exemptions. American law provides for the use of foreign law in certain cases stemming from foreign occurrences (marriages, divorces, injuries and the like). Sometimes this calls for the use of foreign religious law, whether Islamic law, Jewish law, or the decisions of Christian tribunals.
Of course, American law also imposes limiting principles on these doctrines. Some contracts and foreign judgments are unenforceable. Many religious exemption requests are denied. But these limiting principles, I argue below, already adequately prevent improper recognition of Islamic law and allow recognition of such law when recognition is proper. There is no need for new law here. The current principles just need to be applied equally to all situations, whether those situations involve Islamic law or other law.
In my experience, much of the criticism of the use of Sharia in American courts has come from the political right. And I myself am generally a political conservative, and one who shares some of the concerns about the use of Islamic law in certain contexts.
Indeed, I have often criticized the bad conduct of various Muslim countries’ governments, especially suppression of perceived blasphemy or apostasy. I have criticized the occasions on which American officials have restricted speech because it was offensive to Muslims, or failed to protect such speech against private violence. I have publicly defended those who published the Mohammed cartoons, and I published the cartoons myself on my blog. I was also apparently the first person to write about (and to condemn) one example often relied on by the anti-Sharia movement — S.D. v. M.J.R., the New Jersey case in which a trial court judge refused to issue a restraining order against a Moroccan Muslim husband who allegedly raped his wife.
Nonetheless, I think many other complaints about incidents of alleged “creeping Sharia” in American law are misguided, partly because the complaints miss the way those incidents simply reflect well-settled (and sound) American law. Indeed, the alternative approach that I offer is, I think, a conservative approach. It urges courts to continue following well-established American legal traditions rather than distorting those traditions either in favor of Islam or against.
I will explain this in coming posts this week by surveying various areas in which American law arguably implements or recognizes Islamic law, and discussing how my proposed approach — simply even handedly applying established American legal principles — would play out in those areas. The posts will cover:
Enforcing contracts and wills that are motivated by Islamic law.
Enforcing contracts or wills that call for courts to interpret Islamic law.
Use of foreign law that incorporates religious law.
Allowing Muslims to claim broadly available religious exemptions from generally applicable laws or work rules.
Providing accommodations that benefit Muslim customers, employees, students, or clients.
Exempting Muslims from generally applicable laws because of their religious or cultural background, even in the absence of any interference with religious practice.
Passing laws that track Muslim law rules, or enforcing laws in a way that tracks such rules.
The “Islam is different”, argument.
Of course, if you want to read ahead, you can find the entire article here.
* * *
. Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir. 2012).
. See, e.g., H.B. 2582, 50th Leg., 1st Sess. (Ariz. 2011); H.R.J. Res. 1004, 86th Sess. (S.D. 2011).
. See, e.g., About, Creeping Sharia, http://creepingsharia.wordpress.com/about-2/(last visited Sept. 22, 2013).
. E.g., 9 U.S.C. § 2 (2012).
. See Eugene Volokh, Some Background on Religious Exemption Laws, The Volokh Conspiracy (June 12, 2010, 7:07 PM), http://www.volokh.com/2010/06/12/some-background-on-religious-exemption-law-2/.
. See generally Eugene Volokh, Foreign Law in American Courts, 66 Okla. L. Rev. 219 (2014).
. See infra Part II.
. See infra Part V.
. See, e.g., Eugene Volokh, Singaporean Resort Owner in Malaysia Arrested, Loses Permanent Residency, for Letting Buddhists Meditate in Muslim Prayer Room, The Volokh Conspiracy (Aug. 19, 2013, 2:59 PM),http://www.volokh.com/2013/08/19/signaporean-resort-owner-in-malaysia-arrested-loses-permanent-residency-for-letting-buddhists-meditate-in-muslim-prayer-room/; Eugene Volokh, 7 Years in Prison + 600 Lashes in Saudi Arabia for “Insulting Islam,” The Volokh Conspiracy (Aug. 1, 2013, 12:53 PM),http://www.volokh.com/2013/08/01/7-years-in-prison-600-lashes-in-saudi-arabia-for-insulting-islam/; Eugene Volokh, Schoolteacher in Egypt Fined $14,000 for Allegedly Insulting Islam, The Volokh Conspiracy (June 17, 2013, 2:37 PM),http://www.volokh.com/2013/06/17/schoolteacher-fined-100000-in-egypt-for-allegedly-insulting-islam/.
. See, e.g., Eugene Volokh, Terry Jones Jailed, Apparently for Refusing to Promise Not to Demonstrate in Front of a Mosque, The Volokh Conspiracy (Apr. 22, 2011, 7:19 PM), http://www.volokh.com/2011/04/22/dearborn-jury-holds-terry-jones-may-be-barred-from-organizing-rally-outside-mosque/.
. See, e.g., Eugene Volokh, Charges Dismissed in Pennsylvania Prosecution for Attack on “Zombie Mohammed” Atheist Parader, The Volokh Conspiracy (Feb. 24, 2012, 12:12 AM), http://www.volokh.com/2012/02/24/charges-dismissed-in-pennsylvania-prosecution-for-attack-on-zombie-mohammed-atheist-parader/.
. Eugene Volokh, The Twelve Mohammed Cartoons, in Detail, The Volokh Conspiracy (Mar. 10, 2006, 6:01 PM),http://www.volokh.com/posts/1142035265.shtml.
. Eugene Volokh, Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal, The Volokh Conspiracy (July 23, 2010, 5:45 PM), http://www.volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/. Searching for New Jersey and Morocco! in Lexis Advance, limited to 7/20/2010 to 7/25/2010, finds no earlier stories; a 7/24/2010 post on an anti-Sharia site, Atlas Shrugs, links to the volokh.com post. Pamela Geller, Sharia (Islamic) Law in New Jersey Court: Muslim Husband Rapes, Beats, Sexually Abuses Wife, Judge Sees No Sexual Assault Because Islam Forbids Wives to Refuse Sex, Atlas Shrugs (July 24, 2010, 11:35 PM),http://atlasshrugs2000.typepad.com/atlas_shrugs/2010/07/sharia-islamic-law-in-new-jersey-court-muslim-husband-rapes-beats-sexually-abuses-wife-judge-sees-no.html.
. 2 A.3d 412, 418-19 (N.J. Super. Ct. App. Div. 2010). The husband was later indeed convicted of rape. Michaelangelo Conte, Bayonne Husband Convicted of Sexually Assaulting Wife; She Testified He Told Her “This Is According to Our Religion”, Jersey J. (Sept. 23, 2010), http://www.nj.com/news/jjournal/bayonne/index.ssf?/base/news-6/128522312420240.xml&coll=3.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.