Scholarly Article on Anti-Sharia Laws

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.

Proponents of anti-Sharia laws like to tell scary stories about the use of Sharia laws in criminal cases, such as cutting off the hands of thieves and beheading infidels, as though these entirely mundane cases of contract law will lead somehow to such terrible ends. But this is nonsense.

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.

About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • Abby Normal

    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.

    Why would we want a new law that tells courts keep doing what the existing laws have already instructed them to do? Seems kind of pointless to me. Then again, pointless may be a step up from what I see coming out of most state legislatures. So I guess I don’t object to the hypothetical legislation itself. I just reject the idea that something must be done about Sharia at all.

  • matty1

    Abby, maybe a press release.

    Having reviewed all relevant law we find that.

    1. Choice of law has only ever applied to civil contractual disputes.

    2. No contract is enforceable that violates established rights or otherwise contradicts established law.

    These existing safeguards being in place there is no case for (insert anti-Sharia bill).

    Signed

    Most junior person in the relevant AG office.

    Would that be a response you’d support?

  • Ben P

    Even with the Shuf’a thing, it’s still potentially problematic based on how it appears in the contract. (In the same way some of the family laws might be problematic).

    It’s a snap to draft an agreement that any part-owner has to give his other part-owners a first option on selling his share of the property. Any dedicated real estate lawyer would probably have form clauses for this purpose. This is fine, and wingnuts can’t even complain about Sharia law without being blatantly dishonest (as if that stops them) because the exact same principles exist in common law.

    Likewise, suppose a shorter handwritten contract that just says “the parties agree that the right of Shuf’a shall exist.”

    Now you’ve got an obscure term, and a court has to define it. If the parties agree it’s fine, if the parties disagree (as in most lawsuits) you’ve got the seeds of parties being unhappy, but I don’t foresee any problem with a US Court enforcing this.

    But then imagine a scenario where the contract merely says something really vague like “the parties agree this contract shall be governed under Sharia law.”

    Then you’ve got something that’s really tricky to enforce, particularly if the contract has no connection to another country. You end up having to call in experts on foreign law and it just gets messy very quickly.

  • Ben P

    Why would we want a new law that tells courts keep doing what the existing laws have already instructed them to do? Seems kind of pointless to me. Then again, pointless may be a step up from what I see coming out of most state legislatures. So I guess I don’t object to the hypothetical legislation itself. I just reject the idea that something must be done about Sharia at all.

    Here’s why I think you’re wrong, (and sort of on the same basis as my #3 post.)

    You make the assumption that all courts and judges “know what the law is” and “what it instructs them to do.”

    In reality this is pretty far from the truth. There are good judges and bad judges, smart judges and dumb judges, judges that seriously attempt to be neutral, and judges that just don’t give a damn, judges that care about “the law” as a logical construct, and judges that just do that they deem “fair.”

    Like many lawyers whose practices lead them to spend time before judges, the quality of judges is a pet peeve of mine. Federal judges are generally, but not always better, our state judges are elected and some are truly frustrating.

    The reality is that each and every lawsuit has two sides that passionately argue for *something.* But there are also good lawyers and bad lawyers. And sometimes lawyers the judges just don’t like.

    Adding clarity to the law is almost never a bad thing. It makes it easy for parties to cite to a statute and say “yes, this contract should be upheld” or “you can’t do this because it violates my rights.”

  • mrbongo

    Here’s an example Sharia in the U.S. that Ed has ignored.

    A group of atheists dress in religiously offensive costumes (zombie pope and zombie mohamed) and join a local Halloween parade. Of course, Zombie mohamed gets physically attacked by a Muslim. Zombie mohamed calls police (so does Muslim because he thinks it is illegal in U.S. depict Mohamed – he must be a reader of this blog).

    Muslim admits to officer that he attacked atheist. Case goes to trial.

    Muslim judge calls atheist a dufus and upholds Muslism right to attack atehist depicting Mohadmed disrespectfully saying:

    ““Having had the benefit of having spent over 2 and a half years in predominantly Muslim countries I think I know a little bit about the faith of Islam. In fact I have a copy of the Koran here and I challenge you sir to show me where it says in the Koran that Mohammad arose and walked among the dead. I think you misinterpreted things. Before you start mocking someone else’s religion you may want to find out a little bit more about it it makes you look like a dufus and Mr. (Defendant) is correct. In many Arabic speaking countries something like this is definitely against the law there. In their society in fact it can be punishable by death and it frequently is in their society.”

    Its all on YouTube denialist bitches.

    http://www.abc27.com/video?clipId=6767233&topVideoCatNo=193316&autoStart=true ABC 27news from 2/21/2012

    http://www.youtube.com/watch?v=yP-X3hpCfR8

    http://downloads.iheartradio.com/media/station_content/1166/bob02171202_1329516996_26299.mp3

    http://www.youtube.com/watch?v=Sv9IyrpOnbs

  • mrbongo

    “Then what you have done is you have completely trashed their essence, their being. They find it very very very offensive. I’m a Muslim, I find it offensive. But you have that right, but you’re way outside your boundaries or first amendment rights. This is what, and I said I spent about 7 and a half years living in other countries. when we go to other countries it’s not uncommon for people to refer to us as ugly Americans this is why we are referred to as ugly Americans, because we are so concerned about our own rights we don’t care about other people’s rights as long as we get our say but we don’t care about the other people’s say”

    Actually said by a judge in Penn as he let a Muslim off for attacking an atheist dressed as Zombie Mohamed.

    Spin on this Ed. Sharia is here, you can deny, but I’ll always come back with specific examples.

    http://www.opposingviews.com/i/society/crime/muslim-admits-attacking-atheist-muslim-judge-dismisses-case

  • Abby Normal

    Ben P said:

    You make the assumption that all courts and judges “know what the law is” and “what it instructs them to do.”

    That was the best assumption I could make given the fact that every case has been decided correctly, almost always without even resorting to appeal. If the limits of contract law in this area are poorly defined I’d have expected to see some variation. But yes, my assumption is based on some fairly weak evidence. Can you offer any evidence that this is an area of the law where significant ambiguity exists? Is there something new or unique about Sharia that makes the laws that have successfully governed Christian and Jewish entangled contracts?

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    @ Mrbongo:

    That sounds more like a judge exhibiting preferential treatment of a religious person over a non religious person. Same thing would probably happen if it was a xtian vs an atheist in front of that judge. Nothing to do with sharia.

  • mrbongo

    @robertbaden

    Yes the “I’m a Muslim, I find it offensive. ” part flew right over your head.

    Or how about the “In fact I have a copy of the Koran here …” part?

    Or how about the part where the Judge excuses the Muslim’s behavior because he thought it was o.k. to attack those who inappropriately depict Mohamed?

    All fact specific to Islam.

    Wow, so robertbaden is so willing to keep his current opinion safe that he is going to look at a koran waving muslim judge that says its specifically excusable for a Muslim to attack someone who attacked zombie mohamed (not zombie pope who was right next to zombie mohamed) and says, “neh, its just an animus towards atheism, has nothing to do with sharia”.

    uh, o.k. robertbaden, you can now be the poster boy for someone who is impervious to facts.

    http://atheists.org/blog/2012/02/22/muslim-attacks-atheist-muslim-judge-dismisses-case-blames-victim

  • Abby Normal

    mrbongo, I followed your link. While it’s a disturbing story, I can’t find any indication that the judge used Sharia to reach that awful ruling. All I see is a misapplication of US law regarding the fighting words exception to free expression.

  • mrbongo

    @AbbyNormal

    actually, i just realized that Ed isn’t allowing the first post with the majority of links to be posted. so, it isn’t your fault – the post has 3 links and ed’s server probably automatically holds those for moderation.

    here is another link, you see all this is on youtube, the attack, the magestrate’s rant, etc. So, while many of you will find the story tough to believe, it is utterly documented.

    http://www.abc27.com/video?clipId=6767233&topVideoCatNo=193316&autoStart=true ABC 27news from 2/21/2012

  • Chiroptera

    mrbongo, #5:

    Did the judge actually mention Sharia or quote scripture? ‘Cause if he didn’t, then how do you distinguish Sharia as opposed to the general stupidity that afflicts our court system?

    Has a Christian accused of attacking someone mocking Christianity ever been given a pass by a Christian judge? ‘Cause if so, then we don’t have an example of Sharia but a more mundane type of dumb-fuckery that afflicts American society.

    At any rate, has the case been appealed yet? I mean, we already know that judges make mistakes. That is why we have an appeals system. You can’t point to a mistake made by one or two judges and make the claim that somehow Sharia has become rooted in our court system.

    When the ordinary correction mechanisms fail to correct this error, and Muslims are given a pass more often than others for their beliefs, then you can cry about “Sharia.”

  • http://missingthepoint.wordpress.com/ W. Kevin Vicklund

    Tune in at 2:00 to see why I’m laughing my ass off at mrbongo.

  • Ben P

    Can you offer any evidence that this is an area of the law where significant ambiguity exists? Is there something new or unique about Sharia that makes the laws that have successfully governed Christian and Jewish entangled contracts?

    Conflict of laws is absolutely an area of law where ambiguity exists. The typical conflict of laws is whether a court should apply the law of Delaware or New York or Florida or Texas vs the law of wherever this happened. The law is always in flux because companies choose those laws for a reason. It’s not uncommon at all for these cases to focus on substantially unjust results.

    Just as an example. Suppose you hire some contractors to come work on your house. You sign a work order, not noting that on the back of the work order is in fine print that all disputes under this agreement shall be subject to the law of north dakota. ( A random state that neither of you are from)

    You’ve got all sorts of normal underlying questions, is the contract forcible? is the contractor entitled to enforce it?

    Is there a “substantial connection” between North Dakota and the contract? (not all states have this rule, but many do) otherwise the choice of law clause might be vague.

    Then suppose you find that under North Dakota law, the contractor wins hands down, but under your states law, you win hands down. Does this make North Dakota law substantially unjust or violate your rights in some way?

    Now suppose the same contract, but it says the law of the Czech republic should be applied. How does the analysis change? How does the judge even know what the law of the Czech republic is if the parties don’t bother to educate him on the law beyond the parts that help them?

    The judge might be uncomfortable finding that North Dakota law is unfair and therefore invalid, but does that change if its Czech law?

    There’s nothing new or different about Sharia law as differentiated from any other foreign law, and as differentiated between any other religious law, such as Jewish or christian arbitration.

    But that doesn’t make the law more clear. Conflict of laws is a very complicated field of law that’s almost always changing. Take a look at the Wikipedia articles on choice of law and conflict of laws to get just a basic view of the complexities of this particular area.

    This isn’t helped by the fact that cases involving conflicts with a civil/religious law are rare. A slim few courts, perhaps those in New York, have heard them often enough for lawyers or a judge to have seen more than 1 or 2 in their careers. There simply aren’t but a handful of appellate reported decisions on cases like this. And most of those draw analogies to more traditional conflicts issues.

    And on that point, the fact that many of these cases were resolved without appeals means almost nothing.

    Appeals, like the cases that underlie them are very expensive. Unlike civil rights cases, you often can’t get attorneys fees in many of these cases so there’s no group of lawyers waiting in the wings to handle your appeal without up front payment. 95%+ of civil cases settle before trial, and a very solid majority of trial court decisions go un-appealed.

    I’ve worked on quite literally dozens of cases where the trial judge has made rulings that I consider simply flat wrong, but we go on and settle the cases because taking it through a trial, and then to an appeal would costs tens of thousands of dollars (if not more) and we can settle the case right now for less than that.

  • Ben P

    http://en.wikipedia.org/wiki/Conflict_of_laws_in_the_United_States

    While not perfect this article is reasonably descriptive of the various approaches used in conflicts of laws.

  • mrbongo

    @Chiroptera

    You said “Did the judge actually mention Sharia or quote scripture?”

    Uh…. what part about pulling a Quran out and waving it around did you miss. Wow, how bad do you want to deny that this occurred!

    Listen to the transcript yourself on youtube. Or, you can make excuses and deny the sky is blue, your choice.

  • mrbongo

    The burn on Chiroptera’s denialism continues:

    Judge Martin then offered a lesson in Islam, stating,

    “Islam is not just a religion, it’s their culture, their culture. It’s their very essence their very being. They pray five times a day towards Mecca to be a good Muslim, before you die you have to make a pilgrimage to Mecca unless you are otherwise told you can not because you are too ill too elderly, whatever but you must make the attempt. Their greetings wa-laikum as-Salâm (is answered by voice) may god be with you. Whenever, it’s very common when speaking to each other it’s very common for them to say uh this will happen it’s it they are so immersed in it.”

    ““Then what you have done is you have completely trashed their essence, their being. They find it very very very offensive. I’m a Muslim, I find it offensive.

    Chiroptera asked “Did the judge actually mention Sharia or quote scripture?”

    Is this good enough for you Chiroptera? I really love shoving facts down your denialist self-righteous throat.

  • http://missingthepoint.wordpress.com/ W. Kevin Vicklund

    Seeing as mrbongo still has yet to show anything other than a religious person letting another religious person get off scot-free after assaulting someone because they found something to be offensive to their shared religion, I must come to the conclusion that this is not in fact an application of Sharia law.

  • http://www.patheos.com/blogs/dispatches Ed Brayton

    Now this is just funny. As 12:22 mrbongo — I assume this is the same annoying troll from my old blog who changed names about 1400 times — posts about an example I’m “ignoring.” Meanwhile, there was a post about that very subject scheduled to go up an hour and a half later. Not only am I not ignoring that case, I think it’s absolutely appalling and the judge should be removed from the bench immediately. But no, it does not mean “sharia law is here,” it means one local judge has his head up his ass.

  • mrbongo

    @Ed Brayton

    Ed said: “But no, it does not mean “sharia law is here,” it means one local judge has his head up his ass.”

    Interesting, I bet that if say… a fundy Catholic had attacked zombie Pope and a catholic local judge had waived a bible and let the attacker off for the same reasons as this local Muslim judge did, you would see it as part of the favoritism and pervassiven favortism that fundy Christianity receives in certain regions. But since its a Muslim attacker and Muslim judge letting the attacker go free for explicitly stated Islamic reasons you fall back on this being sui generis, isolated, nothing to see here, no pattern emerging at all… .

    Here is something that we probably both agree on, the local and regional atheists need to double up their efforts next year, there should be one hundred zombie mohameds in that parade with zombie nine-year old brides. It is the best way to fight back.

  • mrbongo

    @W. Kevin Vicklund

    W. Kevin Vicklund said “seeing as how I utterly refuse to listen to the trasncripte where the judge says he is an offended Muslim and then says the word Muslim about 50 times while waving a quran, I just assume that it can’t be anything that upsets my current world view”

  • http://missingthepoint.wordpress.com/ W. Kevin Vicklund

    In fact I have a copy of the Koran here and I challenge you sir to show me where it says in the Koran that Mohammad arose and walked among the dead. I think you misinterpreted things.

    Apparently mrbongo thinks that a judge pointing out to an atheist that he was incorrect about an aspect of Muslim faith is “imposing Sharia law.” No one here is denying that the ruling is appalling, mind you – it clearly is. It is not, however, an imposition of Sharia law, and the judge even implied that he wasn’t imposing Sharia law in the second half of the paragraph.

  • http://missingthepoint.wordpress.com/ W. Kevin Vicklund

    Interesting, I bet that if say… a fundy Catholic had attacked zombie Pope and a catholic local judge had waived a bible and let the attacker off for the same reasons as this local Muslim judge did, you would see it as part of the favoritism and pervassiven favortism that fundy Christianity receives in certain regions.

    Yes. But we would also point out (if issue was brought up) that that is not an imposition of ecclesiastical law. Now a ban on birth control, for instance, would be considered such an imposition. See the difference?

    This case is an incidence of (Muslim) religious favoritism. It is not an instance of imposing Sharia law.

  • Chiroptera

    Okay, I will apologize (and sincerely) to mrbongo. mrbongo can be excused for not knowing that I do not make a habit of clicking on video links and that I find it tiresome when someone posts a link with just a comment saying, “Watch this! It’s bad!” or some such. mrbongo has no duty to pander to my quirks.

    mrbongo actually did write a comment associated with his link. I assumed that the comment was a complete summary of the relevant facts in the video. In hindsite, it was an assumption that I shouldn’t have made. At the very least, I should have noted that I don’t usually watch video links and left it up to mrbongo to decide whether to just tell me that I needed to watch the video, thus ending our part of the conversation, or to supply the relevant facts that he left out of his initial comment.

    To now reply to mrbongo’s comments:

    I still haven’t bothered to watch the video; going by mrbongo’s subsequent comments, it’s still not clear that either Sharia is being applied (as opposed to the judge just doing the common dickery that religious conservatives are wont to do in this country).

    It is not clear whether the outcome would have been different had the judge or the defendent (but not both!) been Christian.

    Finally, it is not obvious that this case is going to set the type of precedent that will allow us to conclude that Sharia is taking root in our court system, as opposed to one individual judge not understanding his job.

  • Abby Normal

    Ben P, thanks for the link. I think we’re just looking at this from different directions. I am looking specifically at the idea that the supposed threat of Sharia creates a need for new laws like, “preventing the application of religious law of any kind in a manner that would violate the rights of either party.” You say there’s nothing unique about Sharia to separate it from other religious or foreign laws. So I think we’re in agreement. If a law like the one quoted above would be helpful in resolving broader conflict of law questions, I’m not one to stand it the way of progress.

  • Chiroptera

    mrbongo, #20: Interesting, I bet that if say… a fundy Catholic had attacked zombie Pope and a catholic local judge had waived a bible and let the attacker off for the same reasons as this local Muslim judge did, you would see it as part of the favoritism and pervassiven favortism that fundy Christianity receives in certain regions.

    Ed has now posted on this topic and people have been commenting.

    What differences would you expect if the judge and defendent were Catholic?

  • Ace of Sevens

    I wonder what Maryam Namazie would think of this?

  • Chris from Europe

    @Ace of Sevens

    I don’t want to know. The last time I looked she was lying (yes, she clearly lied) about arbitration.

  • http://www.patheos.com/blogs/dispatches Ed Brayton

    My dumbass troll writes:

    Interesting, I bet that if say… a fundy Catholic had attacked zombie Pope and a catholic local judge had waived a bible and let the attacker off for the same reasons as this local Muslim judge did, you would see it as part of the favoritism and pervassiven favortism that fundy Christianity receives in certain regions. But since its a Muslim attacker and Muslim judge letting the attacker go free for explicitly stated Islamic reasons you fall back on this being sui generis, isolated, nothing to see here, no pattern emerging at all… .

    The difference is that there really IS a pattern of favoritism in the courts toward Christianity. We see it in many custody cases, for example, where a Christian parent is automatically considered more suitable for custody than an atheist parent. There are lots and lots of such cases. There is no such pattern for Muslims. There are exactly two legal cases you can point to, one in New Jersey two years ago that was immediately overturned and this one, a low-level elected state judge who is clearly an idiot and should be removed from the bench. That does not a pattern make. And you aren’t even comparing apples to apples. There’s a difference between “favoritism” toward a religious group and the imposition of sharia law. You are vastly overclaiming the evidence here.

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