By Mark David Blum, Esq.
Continuing my self imposed quest to shine light where I find honest or intellectual darkness, the time has come to discuss the burning question of Sharia law.
Let me perfectly honest and frank; I know nothing of Sharia law. By birth I am a Jew. By lifestyle I am a non-evangelical agnostic. By trade, I am a lawyer. Only one of these worldviews provides me any standing to speak out on Sharia law. That place is how we, in the United States, already provide for Sharia law. It is an important element of our national health and founding. Segments of our society couldn’t flourish without our respecting Sharia law. In the end, our courts may have to accept Sharia law whether we like it or not. My opinion is that we should embrace Sharia law as failing to do so could bring about an abandonment of our nation’s most cherished principles.
The place to start, as always is the United States Constitution. As stated with absolute firmness, the First Amendment of the Constitution of the United States provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Ours is a nation that respects every citizen’s right to believe and live according to any set of religious principles that motivates a person. No one has the right to determine whether one citizen’s belief system is any better or worse than another’s. Government shall play no role in the establishment or free exercise of any faith.
We do recognize that certain religious practices offend our laws. The use of opiates or hallucinogens are banned from religious practices because of our national drug policy. We do not tolerate animal sacrifices or female genital mutilation. The target of the first amendment has thus been limited to toleration of people’s belief systems but the actual practice of certain religious traditions is not. We see this in how we deal with Mormons and other religions that practice polygamy. Americans maintain a noose around the neck of practice but stand aside on what goes on inside a citizen’s head and heart. Only actions are monitored and regulated.
Going back to our beginnings, some of our founding colonies were corporate entities organized to harvest and export materials to be returned to Europe for a profit. The East Indies Company is but one example. Other societies organized themselves around religious principles. Many colonists fled Europe arguing religious oppression when in reality they fled because Europe was not oppressive enough for these strict religious fundamentalists. Such is the genesis of what is now Rhode Island. When the colonies congealed into a nation-state, we recognized both branches of our heritage and assured that both types of freedom should remain free from government oversight and control.
This fundamental value was reiterated famously by Justice Louis Brandeis, in his dissenting opinion in New State Ice Company v. Liebmann, 285 U.S. 262, 311 (1932). There, he famously recognized the duality of economic and religious freedom and how we are a nation of different societies that came together for the common good. “There must be power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts. To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Fast forward to the 1960’s and 1970’s, and the United States legal system began to recognize that it was becoming an unmanageable behemoth unable to resolve litigants’ disputes without investing substantial sums of money and time to advance a case. Cases were getting bogged down and the system itself became unresponsive to the smaller, less complicated dispute such as employment, small commercial transactions, and family / divorce matters. It was too expensive and time consuming for both the courts and the parties. A solution was demanded and the system responded by creating a world of Alternative Dispute Resolution.
Alternative Dispute Resolution grew and blossomed into a viable alternative to litigation for some. It has many parts, including specialized courts, mediation, and arbitration. For purposes of this discussion the focus is on Arbitration.
Arbitration as an alternative to litigation requires as a fundamental principle that all parties to the arbitration agree to participate therein. All sides and involved persons actually waive their right to take their dispute to court and instead prefer to turn the matter over to an independent finder of fact and determiner of the outcome. Whether you prefer this process or don’t, it is a viable alternative to the civil justice system. Participants agree to be bound by the decision and the ability for a losing party to take the case anew to a civil court is limited by law. Nowadays, the Courts and legal system actually prefer and give full throated support to parties who resolve their disputes by arbitration, mediation, or some other form of dispute resolution.
At the heart of all arbitration is that the dispute and its’ resolution is based on a contract. There is a contract between the parties and in that contract is found a provision for any disputes to be resolved by arbitration.
‘Marriage’ is a contract. It is a contract between the spouses and between them and can also be between them and their church and God. There are also civil and financial aspects to a marriage contact.
So, what if a dispute occurs between two people of a particular religious order whose mandates, decrees, history, and social construct are such that the parties involved in the dispute must take their dispute to their religious leaders for resolution. Clearly, as free Americans, they can give the finger to their church and head to the nearest secular court. The result could be devastating as the religious community could ostracize the non compliant party causing serious psychic, financial, and social injury to the party. Thus, in the party’s mind, there is no alternative but to submit to the religious resolution of the civil dispute.
A classic example is the use of what is called a “Beit Din”. (bait din). The word means House of Judgment. It is in effect a court of law presided over by Rabbis. (For the record, a “rabbi”; though a spiritual leader, is just a teacher. That is the meaning of the word). Orthodox Jews worldwide turn to the Beit Din to resolve disputes between and among them. It is part of their culture and is as important to them as their very belief in God. (Deuteronomy 16:18).
The United States, despite its intolerance of religious interference in social affairs, accepts the principle of the Beit Din and they flourish wherever large communities of orthodox Jews are found. Such courts handle everything from commercial disputes to divorce and are seen by the civil justice system as being a form of Arbitration. Thus, a decision by a Beit Din can foreclose any chance of appeal and not be subject to civil interference absent a denial of a fundamental right such a procedural due process. Decisions by the Beit Din are guided by religious principles. Disobey the panel’s decision and a person could be damned by their community.
It is not just the Jews. Christians too have their religious courts that are recognized by secular government. Orthodox Catholics cannot get a divorce; only an annulment and adherents follow the findings of their Church. Clearly, nobody is obligated to follow such dogma and can pursue a civil divorce. But the result is being tossed out of their church and community. For many, that would be too high a price to pay to ignore the determinations of the religious Court. Blessed are the peacemakers. (Matthew 5:9).
At present, the armies of anti-Islam are marching across the nation. In response to 9-11 and all that has happened since, Americans as a People have reservations about Islam and its’ policies and practices. It is not that we are not a religious people or an intolerant people. We are an injured people and who carry a deep wound that was carved into our national psyche in the name of Allah.
Some Americans have come to see Islam as a religion of violence and murder, of intolerance, and one seeking to dominate and take over the entire world. This mindset has led to a movement that is gaining strength in various States and communities. Specifically, some communities are enacting laws barring our civil courts from recognizing Islamic justice. The body of law to which adherents to Islam follow is called Shariah Law which is detailed in the Koran. Like the Jews and Christians, Muslims too have organized their religious law into a court-like system which resolves issues that are purely civil in nature.
So there is no confusion; all three religious courts and codes do have within them a body of law which targets criminal behavior. The current state of the law in the United States is that we will not defer criminal matters to religious courts. It would seem that the reason therefore is the fundamental reason for our national criminal justice system. Namely, that when a crime is committed, even one person against another person or property, it is all of us as a People and a nation that is hurt. We also have constraints on our responses such as heightened burdens of proof, constitutional protections, and limitations on the kind of justice that can be employed on a convicted defendant. Religious courts vary widely on how they deal with such issues. Since every American or person on American soil is entitled to constitutional safeguards, we have not enabled religious courts to engage in criminal justice. Do they do it? I have no doubt. Is there proof? I have none. Should it be tolerated? No.
Clearly society has to make it clear that Sharia law, like the Torah or the Peacemakers, has its’ limitations. It requires the agreement of all parties involved and some level of due process has to be assured. When it is misapplied, substantial injustice can occur. For example, a Muslim woman was serially raped and beaten in New Jersey by her husband to whom she was wed as a teenager in an arranged marriage. A New Jersey judge declined to give her a protective order arguing that under Sharia law, a man cannot rape his wife: “A woman cannot carry out the right of her Lord until she carries out the right of her husband.” (Ibn Majah 1854). “If he asks her to surrender herself she should not refuse him even if she is on a camel’s saddle.” This is where religion does come into conflict with our Constitution and our founding document must take precedent over any religious creed. Judges of our court system should not be basing their decisions on their interpretation of a particular religion's own doctrines. We Americans have our own doctrine and to that, the Courts must be loyal.
The above illustrates the limitations that must be kept in place when dealing with a religious court. Our civil courts should accept the findings of a Sharia court or Beit Din court. But if challenged, our civil courts should NOT be engaging in an analysis of the religious doctrine being applied. That is a gross overstepping of the boundaries that separate church and State. Our civil courts should only look at the process and whether the parties were voluntary participants therein. Beyond that, our civil hands are tied, even if we personally and individually disagree with the application of religious doctrine or decision of the religious court.
Under no set of circumstances should religious law be allowed into our criminal justice system. Likewise, our civil courts should give great deference to religious courts. This is the great social experiment called the United States of America. When you hear some right wing conservative banging the drum to ‘ban Shariah law’ from our courts and communities, tell them that doing so is UnAmerican and runs afoul of the constitution. Doing so would bring great shame upon us all.
Defend Shariah law as you would our own religious doctrine. Welcome it as part of our multi cultural heritage. Having such religious tolerance has no impact onto anybody’s life except those who volunteer to participate. We are a free people and a free nation. Religious freedom is near the top of the list of our most treasured rights. Discriminating against one religious school of thought is inconsistent with who we are.
“We hold it for a fundamental and undeniable truth, that religion, or the duty we owe our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.” (James Madison).