Law professor Eugene Volokh is devoting the entire week to blogging about the mythical threat of “creeping sharia” in the United States that is so heavily promoted by the far right. His first post is an overview of the subject, on which he wrote a law review paper.
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…
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.
Volokh is, true to his professorial demeanor, being entirely too generous and civil to those who claim America is going to be taken over by sharia law. That position isn’t just wrong and misguided, it is patently ridiculous and motivated primarily by bigotry. Muslims are 1% of this country’s population. There is no scenario by which they could takeover this country and impose sharia law that is even remotely conceivable, much less plausible.