Quoting from the Wall Street Journal, Nov. 5, 2010: in Oklahoma “State Question 755, which passed Tuesday with 70% of the vote, declares “the legal precepts of other nations or cultures” off-limits to Oklahoma courts. “Specifically, the courts shall not consider international law or Sharia Law,” it reads.”
The Council of Islamic American Relations has challenged this law, and as of this writing a Federal Court judge had temporarily blocked enforcement of the ban.
According to the WSJ article, and other sources, the concern of Oklahoma is that judges might take into account religious or customary laws that work against the spirit and letter of state law. In particular there was a case in New Jersey about which I’ve written elsewhere.
In the New Jersey case a judge ruled that a man had legitimate expectations of his wife based on the custom of their home culture. This was overturned on appeal, by a court citing a Supreme court ruling on the application of religious law over U.S. law, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” Chief Justice Morrison Waite wrote. (WSJ above)
Three questions arise. First – is this new Oklahoma law necessary? And Secondly – does it target the religious freedom of Muslims unfairly as the lawsuit by CAIR alleges? Thirdly – what does it say about our misunderstandings about Islamic law?
First it seems that the Oklahoma law is not necessary. The appeals court in New Jersey, citing a Supreme Court decision, makes clear that members of a religious group cannot claim that their religious law takes precedence over state or federal law. Passing a law that makes this explicit is redundant. Complicating the question is the fact that religious people, quite apart from appeals to religious law, are and have been working out forms of contracts and prenuptial agreements that are valid under state and federal law and conform to their religious law. This, it seems, will be impossible to stop – even if it is desirable. Islamic banking is already well established in the United States, for example. Will Oklahoma courts no longer recognize contracts related to loans, credit instruments, and partnerships that were drawn up to conform to Islamic law? Because it isn’t just Muslims that have signed these. It is major U.S. banks and many other non-Muslims interested in getting involved in a potentially lucrative market for financial instruments. Will Oklahoma courts no longer recognize prenuptial agreements drawn up in accordance with U.S. law but shaped on the basis of religious conviction by Muslims or others?
It is easy to say that Oklahoma courts will not recognize religious or customary law. The problem is when that law is the basis for valid contracts drawn up in accordance with existing U.S. and state law. So the Oklahoma law is not only unnecessary, it is seriously detrimental to the public interest far beyond the bounds of the Muslim community.
Secondly, does this law violate the religious freedom of Muslims? Let’s look at the problem from a Muslim point of view. Matters which are regulated by state law in the United States, such as property rights in marriage, spousal support, and child custody were, in Muslim societies, governed by Shari’a law. It is the Qur’an and Hadith of the Prophet Muhammad that dictate what constitutes a valid marriage contract, who owns what in the marriage, who is obligated to support the children, and in whose custody the children will come in case of divorce. And much of what is designated in the Qur’an and Hadith is directly contrary to state laws in the U.S. Of course the same conflict has arisen in the past with Christian marriage law, Mormon law and practice, as well as that of Orthodox Jews and many smaller religious groups.
And this gets us to the nub of the issue. In pre-modern societies there always existed a division between matters regulated by religion and those regulated by the government. Marriage, whether in Christian Europe, Hindu India, Buddhist China, Jewish communities everywhere, and the Muslim world was not a matter for the government unless you had the government specifically enacting religious law. Even in Islamic lands there were two court systems, one for government made laws and one for Islamic laws. Jews in both Europe and the Muslim world maintained their own court systems for religious law, and some still do in the U.S. today. An American Catholic may have a legal divorce and legal remarriage, but still be refused participation in the life of the church because the marriage was not annulled by church authorities. Indeed this is common.
The problem for Muslims is that modern states everywhere in the world may allow religious communities to regulate within themselves matters like marriage and divorce, but also claim as states a right to also regulate these same social institutions in the interests of society as a whole. Zoning laws restrict the building of religious buildings of certain types. Religious rituals that involve what is deemed cruelty to animals are forbidden. And marriage, divorce, and inheritance are deemed by all modern states as institutions in which the state has a legitimate interest.
Hence, although I think the Oklahoma law was wrong-headed, I cannot agree with CAIR that as such it violates religious freedom. Religious freedom, as the Supreme Court case cited above makes clear, does not extend to taking actions that the citizens of the country have decided are against the fundamental interests of individuals and society. The state is not obliged to sanction (or deny) any particular religious practice, but rather to protect the interests of all the members of society and the society as a whole. If Muslims believe that they have a right to follow a religious law in contradiction to state law then they are mistaken.
The better point, and the one which ultimately prevailed in appeals to Federal Courts, is that the Oklahoma law was discriminatory by targeting only one religion and the intersection between that one religion’s law and civil law.
Finally, what does this tell us about Islamic law? It suggests that both Muslims and non-Muslims are not fully aware of the historical limits of Islamic law, and the complex ways in which it interacted with laws enacted by governments whose understanding of public interest extended beyond that of religious law.
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