The George Mason Law Review is publishing an article by Muhammad Elsayed about the movement to pass anti-sharia laws in various states. It’s a review of such laws and the constitutional implications for the Free Exercise Clause and the Establishment Clause that points out that there are many legitimate ways that Islamic legal principles can be applied in ways that threaten no one’s rights.
Parties may contract into Sharia law in a variety of cases. One of the most commonly litigated cases in the context of family law is the mahr contract, an ante-nuptial agreement requiring the Muslim groom to give a certain sum of money to the bride. Parties may also incorporate Sharia into contracts governing co-owned property. For example, Sharia recognizes two kinds of joint property—indivisible and divisible. Where property is jointly owned and one cotenant seeks to sell his share, the other cotenant has a priority of right to buy that share through a right known as shuf’a (i.e., preemption). Thus, Muslim cotenants may draft a shuf’a contract that governs the disposition of their property in case of a sale or future severance of the jointly owned property. These examples illustrate how parties may contract into Sharia law, and disputes that subsequently arise may involve disputes over the enforceability and terms of those contracts and thus require courts to inquire into their religiously-based terms.
Parties may also contract into other religious laws besides Sharia. Jewish law (halacha), like Islamic law, governs a wide range of topics relegated in the West to secular courts, including family law, contracts, and private lawsuits. Like Islam, Judaism places a heavy emphasis on law as a central part of religion and rejects the strict separation of the religious and the secular. Consequently, Jewish Americans have established religious courts known as the beth din to arbitrate religious disputes, and their arbitration decisions have generally been enforced in secular courts. Jewish Americans also rely on religious contracts to govern financial transactions regulated by Jewish law, such as the heter iska, a contractual instrument used to avoid violating the ban on usury in Jewish law. Therefore, parties can contract into religious laws in a variety of ways, and inevitable contractual disputes bring these religious agreements into American courts.
There is one area where the use of civil contracts can potentially be a real problem and that is in family law. Many versions of Sharia law include rules governing divorce, for example, that are a clear violation of the rights of the wife. In many countries, husbands can divorce their wives by merely announcing an intent to divorce her three times, known as the triple talaq, and provides no legal rights for the wife to dispute the terms. But in such cases, the American courts have consistently refused to recognize such divorces as legal. In fact, American courts have consistently rejected any use of Sharia law in contract or family law if such application would violate the constitutional rights of one of the parties.
There is a way for such laws to be made constitutional and reasonable, by making them much narrower. A law that codified legislatively what the courts have already done, preventing the application of religious law of any kind in a manner that would violate the rights of either party, would be entirely legitimate. It isn’t unusual for legislatures to proscribe through statute how the courts must interpret the law; that was the whole point of the Religious Freedom Restoration Act, for example. And this would simply enhance the legal protections, especially for women in family law cases, while not eliminating the many ways in which religious law is legitimately used in private contracts, wills and international business.