At Christianity Today, Emory University’s John Witte mounts a defense of anti-Sharia legislation:
A constitutional battle over Muslim family law has begun. In November 2010, Oklahoma voters approved a state constitutional amendment banning the use of Muslim Shari’ah and other international laws in its state courts. This was a direct rejoinder to other Western nations allowing Muslim citizens to enforce Muslim marriage contracts in state courts and to resolve family law issues before Shari’ah tribunals without state interference. Oklahoma’s citizens wanted none of it, and they voted to ban the use of Shari’ah altogether. Twelve other states are discussing comparable measures. [ . . . ]
The three most prominent arguments for the use of Shari’ah family norms and procedures in America (and the rest of the West) are based on religious freedom, political liberalism, and nondiscrimination. Though each argument seems plausible on the surface, they are all, to my mind, fundamentally flawed.
Witte argues that we shouldn’t make special accommodations to Sharia that go outside current constitutional and legal freedoms. Fair enough. But how is this an argument for passing legislation that actually restricts freedoms to make religious contracts currently enjoyed by all Americans? If a marriage contract doesn’t run afoul of our laws or our Constitution, what does it matter whether or not it references Sharia? Should it be ruled out? If so, what about an otherwise identical contract that doesn’t reference Sharia? Witte’s argument is, at its best, an argument for inaction—not for the measures passed by states like Oklahoma and Kansas.
Witte makes a further curious argument, saying that we should be less accommodating of Muslim religious liberty claims than those of Jews and Christians because they’re relative newcomers to the Western scene:
The current accommodations made to the alternative legal systems of Christians, Jews, first peoples, and others in the West were not born overnight. They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides.
Witte offers a useful reminder that every political settlement arises from a specific historical situation and not just from the implementation of abstract principles. This is true and important.
Yet one of the features of our historical inheritance is that we see a value in applying basic standards of equality and fairness that do not make reference to otherwise arbitrary measures—like, say, how much a group was or was not persecuted in the past. By Witte’s standards, we ought to be especially skeptical of religious freedom claims made by American Protestants, the long-time guardians of America’s de facto establishment. Or perhaps we should be most skeptical of claims made by Catholics, on account of their centuries of religious dominance? Hazing is not a democratic principle, and if it were, Muslims would be well on their way to passing.
Witte’s basic error, like those of other advocates, is to mistake for a debate about the nature of Sharia what is really a debate about the nature of American law. Our constitutional system is not broken and in need of fixing. The appearance of Muslims in America has not suddenly made it possible for citizens to enter into contracts that are otherwise unallowable. The question is: Will we extend the same protections—no more, no less—to American Muslims that we extend to others? If we seek to protect American constitutionalism and guard against illiberal excesses, our answer ought to be a resounding yes. And our response to anti-Sharia measures should be an equally loud “no.”
November 20th, 2012 | 8:23 pm
The author seems to have fogotten that Sharia sets itself ABOVE all other law. If Sharia mandates corporal punishment of a quarrelsome wife or daughter, no other law has any say in the matter. She gets a beating, and that’s the end if it. If hubby wants to add another wife, our law cannot prevent it.
November 20th, 2012 | 9:34 pm
JJ Joseph,
Contract law 101, contracts that violate public policy cannot be enforced by civil courts. If the Mafia offers you a contract to kill someone, you kill them then they refuse to pay you, then you can sue for breach of contract but the civil judge will toss the case on the grounds that a contract to break the law cannot be enforced.
Likewise a contract for a man to beat his wife would have the same legal problem. Sorry, the Ok law was put forth not to protect women or religious liberty. It was put forth to placate two overlapping lobbies, the bigots and the stupids. Hopefully the courts will neuter this infringement.
November 21st, 2012 | 9:44 am
[...] in many respects, but Matthew Schmitz is not convinced. In a post at First Thoughts entitled “Christianity Today’s Dead-Wrong Defence of Anti-Sharia Laws” he argues that the Oklahoma law was less a rejection of special accommodation to Shari’a law [...]
November 21st, 2012 | 9:56 am
Suppose a Saudi citizen, living in Saudi Arabia, acquires moveable property (shares, bonds a deposit account, a debt) in Oklahoma and dies.
By what law is his estate to be administered? The principle of Private International Law is that the moveable estate, wherever situated, devolves according to the law of the defunct’s citizenship or domicile. Whichever test one applies, the answer in this case is the law of the Kingdom of Saudi Arabia, which happens to be Shari’ah.
How is justice served, by requiring his world-wide estate to be administered piecemeal, depending on the jurisdictions in which each part of it happens to be situated? Should the fact that my debtor moves from, say, Scotland to England mean that, if I die, that sum should devolve according to English law?
How is the public policy of the State of Oklahoma affected by the distribution of foreign-owned assets that happen to be located, it may be temporarily, within its borders? Note, I am only speaking of moveable property.
November 21st, 2012 | 10:26 am
[...] Dead-Wrong Defense of Anti-Sharia Laws – Matthew Schmitz, First Thoughts [...]
November 21st, 2012 | 10:32 am
Mr. Schmitz,
I would be interested in further clarification of what you mean by a marriage contract “referencing Sharia”. As I see it, the term “referencing” is susceptible of a variety of interpretations.
In addition, I am curious about what you think any given couple could / can do via marriage contract, such that those electing for Sharia are simply seeking freedom to “make religious contracts currently enjoyed by all Americans”?
Thank you!
November 21st, 2012 | 10:58 am
[...] Matthew Schmitz departs from Witte’s position over at First Things. He [...]
November 21st, 2012 | 11:15 am
I don’t read Prof. Witte’s article as a “defense” of anti-Sharia laws. He is writing about a larger phenomenon involving the possible conflicts inherent in the co-existence of two normative legal systems, particularly those governing family law questions. To point out that these are problems that will take time and hard work on both sides is hardly controversial. The books he cites to are mainly concerned with European examples. I couldn’t quite tell what his position was on the Oklahoma law, except that he seemed to suggest that a narrower law focussed on particular family law issues might be upheld, and he seems to suggest that these issues were the true impetus of the original law that was struck down. I don’t know why he believes this to be the case.
November 21st, 2012 | 2:50 pm
Women might have a problem with the recognition of Sharia law. Egyptian-American Nonie Darwish, in her recent book, The Devil we Don’t Know, discusses the loss of women’s rights under sharia: Women receive half of the inheritance of men; women have no freedom of movement or travel; polygamy and pleasure marriages are allowed for men; divorce can occur only at the behest of men; a woman’s testimony in court is given only half of the value of a man’s; child marriage is allowed for girls; community property is not permitted between husband and wife; the husband is given automatic custody of the children after age seven in the case of divorce; no alimony is given to women after a divorce; a woman who is raped is required to provide four male witnesses; wife beating is permissible under the law; a husband is forgiven for killing an adulterous wife; the honor killing of women and girls is permitted; and in some Muslim countries, the circumcision of women is allowed.
November 21st, 2012 | 4:54 pm
What freedom is it to draw up contracts based on Sharia law? Once again, the word ‘freedom’ is used to support the negation of freedom. But I’m very glad with Witte’s argument, the logic of which will in the long run spell the end of religious privilege for Jews and Christians, too.
November 22nd, 2012 | 8:48 am
Anyone who wants to reference Sharia law for legal support should merely re-read the above comment by Howard Kainz. Any acceptability or accommodation with Sharia law is playing with fire – a fire that will destroy Western Civilisation.
November 22nd, 2012 | 12:45 pm
You are free to draw up a contract just about however you want it. If I want to enter into a business contract that says debts will not incur interest per the dictates of Sharia law, that is my business and the person I have the contract with. The idea that a court should void that contract because of a state prohibition on ‘Sharia law’ is only something that can be held by someone who either doesn’t understand or doesn’t respect freedom of contracts and freedom of religion.
November 22nd, 2012 | 2:18 pm
Booton is right.
Suppose a contract says, “This Agreement shall be governed by and construed in accordance with the law of Saudi Arabia.”
Would that be void, under the new Oklahoma law? If so, how would the contract be construed?
Suppose it added, “and the parties hereby prorogate the exclusive jurisdiction of the courts in Saudi Arabia,” would a decree obtained from those courts be enforcible by an action raised in Oklahoma? If not, why not?
November 23rd, 2012 | 3:47 am
Boonton and Michael PS
And how would such contracts be enforced? Should one party feel aggrieved where do they go for a judgement? Saudia Arabia? Kansas City? Re freedom, what freedom does a Muslim woman have to NOT submit to sharia law in her marriage to a man who may also be married, under Sharia law, to three other women?
November 23rd, 2012 | 9:23 am
Boonton is actually wrong. It’s not true that you can draw up any contract that you like. The Supreme Court upheld the idea that there was an absolute freedom to contract in Lochner, a view that was subsequently discredited. A state has every right to regulate contracts. If the state decides that you can’t lend out money and charge no interest, then you can’t do that – and you will not be granted a special-privilege exemption on account of what you believe.
Sharia is antithetical to the principles of Western civilization we hold dear. For example, under Sharia, daughters get half the inheritance sons receive. The state is not a neutral actor. It is up to the state to enforce such a will, and by enforcing it, the state would be endorsing that view. That is unacceptable and should be against the law.
“Freedom of religion” is just a foil for granting some people privileges denied to others. It’s an admission that something cannot be justified on general principles, and that you want to grant one religious group favors that are denied to others. For example, if there were a draft, an atheist like myself would be drafted (even though I don’t want to be drafted), but a Jehovah’s Witness would be granted a special-privilege exemption.
November 23rd, 2012 | 12:16 pm
Kinana
In the case of a simple “choice of law” clause, the contract can be sued on wherever the defendant happens to be. The law in question is treated a incorporated by reference to the contract and, unless agreed, is proved by expert witnesses.
Such clauses are of daily occurrence in international sales, where the parties are in different jurisdictions, charter-parties, marine insurance, licences for copyrights and patents, distribution rights and many, many more.
In the case of prorogation, the action is brought in the chosen court and any decree for damages creates a liquidated debt, which can then be sued on in the courts, where the debtor happens to be, in just the same way as when parties submit a dispute to arbitration, the arbitrator’s award can then be sued on as creating a debt.
Maximilian
“For example, under Sharia, daughters get half the inheritance sons receive.”
And here in Scotland, settled land goes to the eldest son, to the exclusion of his brothers and sisters; it is only if there are only daughters that they take equally, as heirs-portioners.
November 24th, 2012 | 5:48 am
Maximilian,
True Lochner limited the right to contract but you are wrong in regards to ‘special-privilege’ here.
Sharia is antithetical to the principles of Western civilization we hold dear. For example, under Sharia, daughters get half the inheritance sons receive.
Yea so if you want to give your daugher half of what you give you sons because you think she married a jerk, it’s OK in OK. If you want to do it because your religious faith says you should your will becomes void as its ‘Sharia’.
Unlike what seems to be the law in some European countries, most US states do not require you to leave anything to your kids. If a person dies without a will it’s generally divided equally among kids without regard for gender or whose oldest.
It’s an admission that something cannot be justified on general principles, and that you want to grant one religious group favors that are denied to others.
You’re clearly unaware that there’s a huge array of private law systems in the US. I once worked with a consultant who was an Orthodox Jew and he told me how once he choose to have a business dispute settled by the Jewish religious courts rather than civil court. Both parties agreed to be bound by the decision of the rabbi and the rabbi ruled against him resulting in a real life judgement that could be enforced in a civil court.
Of course nothing says it has to be religious. Parties in a contract can specify that disputes be handled by any number of private arbitrator services.
November 24th, 2012 | 11:01 am
Michael, I thought you were from France, given your encyclopedic knowledge of everything related to the law, and the Napoleonic Code. Your point is interesting. I did not know that there are still civilized countries in which primogeniture is still practiced. But this practice at least has a rational justification: to prevent lands belonging to a family from splintering, rather than the idea that women are less worthy of receiving property than men. The latter contradicts Western principles and should fall under a public policy exception even without anti-Sharia laws, the former does not.
November 24th, 2012 | 11:09 am
Boonton: Yea so if you want to give your daugher half of what you give you sons because you think she married a jerk, it’s OK in OK. If you want to do it because your religious faith says you should your will becomes void as its ‘Sharia’.
The former is related to conduct. The latter is related to status and is highly irrational. The state is not a neutral actor, and its powers should not be used to enforce the irrationality of its citizens, when we can avoid it.
Boonton: Unlike what seems to be the law in some European countries, most US states do not require you to leave anything to your kids. If a person dies without a will it’s generally divided equally among kids without regard for gender or whose oldest.
Then you acknowledge that the state has a right to abrogate wills and contracts, when they violate public policy. Since that is the case, the state certainly has the right to refrain from enforcing religious-based gender discrimination in wills.
Boonton: You’re clearly unaware that there’s a huge array of private law systems in the US.
And in Canada, there are Sharia courts that settle divorce disputes that give women a raw deal. Is that “religious freedom” too?
November 24th, 2012 | 12:14 pm
Public policy would only apply when there’s a compelling state interest. Any contract that would entail breaking the law would be unenforceable via that concept (i.e. the Mafia ‘hit contract’, a contract to beat one’s wife, prostitution etc.). When it comes to wills, the state’s interest is limited. I could see the state requiring that a person provide for their actual children before they can start dividing their assets among others in a will. But no normally when you’re talking about adult children you are free to leave your stuff as you see fit. If that means you want to leave less to someone for a ‘politically incorrect’ reason like you think women are less worthy than men or because you hate that your daughter married someone of a different race, courts cannot void such a will.
Likewise courts cannot void a contract entered into by consenting parties simply because it represents adherence to the precepts of a particular religion. That is a violation both of the right to contract (one of the few rights that actually preceded the Bill of Rights in the Constitution) and the First Amendment.
Rather than defending Western Civilization, those advocating nonsensical laws like this are only seeking to undermine it through their ignorance.
November 24th, 2012 | 1:22 pm
Maximillian
i am both a Scottish advocate and a member of the Paris Bar (thanks to the common market in the EU) In fact, my speciality is Private International Law or « conflit de droits » that is cases with a foreign element, as where someone dies leaving property in two or more jurisdictions, recognition of foreign marriages and divorces, double-taxation relief and so on. Hence my interest in this question.
To enforce rights acquired under a foreign law is not to agree with the grounds of it. During WWI a British merchantman was captured and condemned in a German prize court. It was purchased by a Swedish company (Sweden was neutral) and when it put into a British port, the original British owners had it seized. The British courts held that the Swedish owners had acquired a good title under the adjudication of an enemy prize court. International trade would become impossible, if such titles were not recognized everywhere.
It is as well that Oklahoma does not have Admiralty jurisdiction
Booton
I agree with your point about a decree arbitral. The same thing is true when parties choose to litigate in a foreign court.
I once had a case, where an importer in New York sued his Scottish supplier in the Campbeltown Sheriff Court. He lost and was ordained to make payment of the expenses of the action. As payment was not forthcoming, he raised an action on the decree in the Federal District Court in New York. The American court refused to allow him to go into the merits, as he had submitted to the jurisdiction of the Scottish court by suing there and gave summary judgment for the amount of the decree. Had the parties prorogated the jurisdiction of the Scottish courts in their contract, the result would have been the same.
The great American jurist and former Justice of SCOTUS, Joseph Storey, published his Commentaries on the Conflict of Laws in 1834, where he again and again insists on the principle that a legal right acquired anywhere should be enforceable everywhere. This has always been the law in the United States.
November 25th, 2012 | 4:13 pm
Boonton: Public policy would only apply when there’s a compelling state interest.
I misspoke. I didn’t mean the public policy exception, but the law. You acknowledged that European countries require parents to include children in their wills. So it is clear that there is no right to a will that is unencumbered by the law. The law can stipulate that no will discriminating on the basis of gender will be enforceable.
Boonton: Likewise courts cannot void a contract entered into by consenting parties simply because it represents adherence to the precepts of a particular religion.
When there is a law prohibiting such, courts can and are obliged to void the terms that are unacceptable to the law. For example, you can’t draw up a Sharia marriage contract that states that the husband can divorce his wife by saying it three times. This does not violate any Constitutional provision.
Boonton: Rather than defending Western Civilization, those advocating nonsensical laws like this are only seeking to undermine it through their ignorance.
This is about combating the outrageous demands for privilege emanating from some communities. These are individuals who feel that they have a right to trample the law, if they do not like it. They call this “religious freedom”.
November 26th, 2012 | 3:40 am
Maximillian wrote, “For example, you can’t draw up a Sharia marriage contract that states that the husband can divorce his wife by saying it three times…”
Of course one can’t. Marriage is not a mere contract, but a civil status and, as such the subject of public law. One cannot agree to marry for ten years, or that the wife shall be the head of the family, or that the children shall not inherit. As Lord Meadowbank said in Gordon v Pye, “These are all pacta privatorum and cannot impede or embarrass the steady uniform course of the jus publicum, which, with regard to the rights and obligations of individuals affected by the three great domestic relations, enacts them from motives of political expediency and public morality and nowise confers them as private benefits resulting from agreements concerning meum et tuum, which are capable of being modified and renounced at pleasure.”
It is quite otherwise with those matters, which the law leaves in the discretion of the parties and which can properly form the subject of a pre-nuptial agreement. There the parties can choose to adopt the rules of any code they please.
November 26th, 2012 | 6:40 pm
Thank you Boonton and Michael PS for your replies. I have much to learn for sure but you have not alleviated my fears of Sharia laws. Arbitration courts are used in the UK to bring in Sharia principles into marriage and family disputes — to the detriment of women and children. You speak of consent, and Islam allows for the so-called marriages of very young girls with their consent but consent can be ‘by silence’, as Mohammed has said (Bukhari (007.62.64)).
November 27th, 2012 | 12:05 am
I misspoke. I didn’t mean the public policy exception, but the law. You acknowledged that European countries require parents to include children in their wills. So it is clear that there is no right to a will that is unencumbered by the law. The law can stipulate that no will discriminating on the basis of gender will be enforceable.
Not what is being proposed here. You can certainly write a law that says wills *must* divide estates equally to all children. You can write a law that says estates can be divided based on giving the oldest children a larger share. You can possibly even do a law in America that doles out estates based on which kids have more grandchildren etc.
What this law says, though, is that you can leave your daugher less than your son if you hate her boyfriend. You can leave her less if you think girls are wimpy and can’t handle money. You can even leave her less if you are following some religious sect that says girls should inherit less than boys….except one particular religious sect. That is prohibited by the Constitution.
Kinana,
I think your concerns about valid consent are very valid. But that isn’t really addressed by laws like this. Consider two savy, 50 year old businessmen who enter into a partnership to do business with each other who include a clause that any disputes between them must be settled by a Sharia arbitrator. If one of the men sues the other before going to arbitration, he has breached the contract. But this law would say the contract cannot be enforceable as it includes ‘Sharia elements’. Yet is anyone really concerned about ‘consent’ here?
On the flip side an abusive Muslim husband may browbeat his wife into singing off on a ‘fast divoce’ that does not reconize her interests…yet this law does nothing for her as there’s nothing especially ‘Sharia’ about that.
Non-coerced consent is a basic element of all contracts. If this is really the concern then I would suggest a better use of the law would be to push for greater scrutiny of ‘vulnerable’ parties in the court system with judges willing to toss contracts of any type if there’s even a whiff of coerced consent at play.
Links
Blogs
Find Us
Contact