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Dan Miller

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April 30, 2011 - 1:53 pm

The U.S. Attorney for the Eastern District of Missouri, Richard Callahan, assured Muslims on April 29th that “the Obama Administration would likely step in on behalf of Sharia law should any state try to ban it.” This may be of interest because various laws are pending in many states to prohibit or limit the application of Sharia Law in their courts.

Much depends on what a state law actually does. If parties to a judicial proceeding agreed freely and contractually to be bound by arbitration, the court concludes that they did so and that the arbitration procedures do not contravene requirements under state law, then it’s probably acceptable for the parties to be governed by their arbitration agreement. However, significant problems can arise when a judge has to analyze the suitability or findings of an arbitration proceeding — or for that matter anything else — under Sharia Law. With no background or training in Sharia Law, he would have to rely quite heavily on the expert testimony of “Islamic scholars.” In the event of disagreement between two experts, how could he decide which if either might be right? Both might be right or both might be wrong.  Indeed, it is argued here in support of the use of Sharia Law that

There is no one thing called sharia. A variety of Muslim communities exist, and each understands sharia in its own way. No official document, such as the Ten Commandments, encapsulates sharia. It is the ideal law of God as interpreted by Muslim scholars over centuries aimed toward justice, fairness and mercy.

State laws concerning inquiry into the circumstances under which an arbitration agreement was entered into should be followed.  Arbitration agreements (as well as contracts in general) specifying the applicability of Sharia Law are properly treated differently than those specifying the applicability of, for example, California law.  While the laws of California may be “foreign” in Virginia, making it difficult for a Virginia court to deal with a contract expressly requiring that issues arising under it be resolved under California law, courts do so frequently. The laws of the fifty-seven fifty states are not terribly different and are more readily understandable by a judge trained only in the laws of the United States than is Sharia Law.

Beyond that and in the absence of a valid arbitration agreement? A divorce proceeding? A prenuptial agreement where one or both of the parties was a minor when it was entered into? Custody of minor children (who could not, due to their status as minors, be bound by such an agreement even were they parties to it)? Criminal proceedings? Civil litigation except that involving a contract expressly stated to be interpreted under Sharia Law? No way.

It appears that the U.S. Attorney may have got some things wrong.

Speaking at the Islamic Foundation of Greater St. Louis, Muslims also raised concerns about supposed Islamophobia that has gripped the country. Adil Imdad, one of the organizers of the even[t], stated: “There is a worse kind of Muslim hatred recently. Especially in the last two years, Islamophobia and fear-mongering have been spreading like wildfire, and it’s causing a lot of stress for our youth.”

The Daily RFT continues:

The problem is now hitting a little closer to home, said Imdad, pointing to three bills currently circulating through the state legislature that seek to limit Sharia law (Islamic law) in Missouri courts. Sharia law could come into play in rulings considering child custody or prisoner rights for Muslims. As we’ve reported, the bills have become a source of controversy.

Callahan responded by hinting that, should anti-Sharia legislation get passed by the Missouri Legislature, it could be overturned by the federal courts. “The Department of Justice has a good history of challenging laws passed by state legislatures,” he said. “If some laws are passed, I think you will see challenges by the federal government on the constitutionality of them.” (link re Islamophobia added: the Devil made me do it.)

Child custody? Again, that must depend on state laws intended to safeguard the well being of minors, not Sharia Law. Prisoner rights? Muslim prisoners are entitled to the same rights under various state laws as others subject to them, no more and no less. If the laws of a state provide for special meals as approved for a prisoner’s religion, then he can have them; otherwise, not — unless his rights under the Constitution would thereby be violated because Buddhists are given special meals and so he is entitled to them as well.

It is argued here, rather less than persuasively, that anti-Sharia laws are unnecessary and simply an outlet for anti-Muslim hysteria:

Tennessee is debating a law, one of more than two-dozen nationwide, that would block the implementation of Sharia Law in America. Seriously, are there any Republicans who have ever read the Constitution they claim they are defending? Sharia is a set of laws, whose full structure is subject to the interpretation of the sect of Islam, that is categorically religious in nature and barred from implementation by the First Amendment. In our entire history, no one has ever suggesting a law barring the implementation of Judaic law, have they? It might have taken a while, it did everywhere, but we have divorce which is forbidden under Catholic law (without a Papal dispensation, please call for the price). Technically, we do not have laws that are drawn directly from religious laws. That’s technically. We have a raft of anti-gay and anti-abortion laws that are based solely and exclusively on religious doctrine, but until someone in the legal community grows a set and fights them on the grounds of the First Amendment, we’re stuck with those.

True, the First Amendment guarantees freedom of religion. People not desiring to be subject to the dictates of a religion cannot be required to abide by them, and that’s where the main problems can arise. Even if the linked article is correct to the extent that it argues that anti-Sharia laws would be redundant with the First Amendment, that’s not much of an argument. Redundancy with parts of the Constitution or other laws is hardly a valid basis for constitutional challenge; if it were, lots of federal and state laws would fall. Inconsistency is hardly the same as redundancy.

Roman Catholic Canon Law has little if anything to do with contemporary judicial determinations in state and federal courts, and neither should other religious laws. It is argued here, at great length, that most Muslims abide by a modern and evolving interpretation of Sharia Law and that it presents no dangers to others. It probably won’t, unless it slowly becomes part of the corpus of United States law. Then it will.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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