Political Myth: There is an imminent danger that “Sharia Law” will be adopted by courts in the United States.
Reality: Not even remotely likely.
It was 1531, and King Henry VIII of England wanted the Convocation of the Clergy to declare him (as opposed to the Pope) to be the Head of the Church of England. This was, needless to day, a highly controversial issue among the English clergy. They reached a compromise: They declared King Henry to be the Head of the Church of England “so far as the Law of Christ allows.” Of course, nobody had any idea what the “Law of Christ” had to say on the subject, if anything, but that was the point. The proviso could mean anything you wanted it to mean.
“Sharia Law,” is, in many ways, a lot like the “Law of Christ” of the 16th Century in that what people think it requires varies widely from one Islamic sect to another. Sunni “Sharia Law” differs substantially from Shea “Sharia Law,” which, in turn, is significantly different from the Sufi idea of “Sharia.” Perhaps the biggest difference between the “Sharia” of today and the “Law of Christ” of the 16th Century is the simple fact that Islam is much more fragmented than Christianity was — at least back then. There has never been an Islamic equivalent of a “Pope,” or any other centralized authority who could declare authoritatively and for everybody what the “Law of Christ” (or Sharia) does or does not say. So, in some countries, “Sharia” permits polygamy on a limited basis; in others, “Sharia” strictly forbids it. In some countries, the penalty for theft is, literally, amputation — in others judges can (and generally do) impose lesser penalties.
But if you happen not to be a Muslim, the above probably doesn’t make you feel much better about Sharia law. Even if you do happen to be a Muslim, you probably wouldn’t want to live under a legal system that imposes a type of Islam you don’t happen to agree with on you. If that is your point of view, then you will be glad to know that neither the United States nor any of the 50 states has a legal system based on any version of Sharia law, nor do they have any plans to adopt Sharia as the basis of its legal system, nor have they ever. The Establishment Clause of the First Amendment, as applied to the states via the due process clause of the 14th Amendment, would forbid any government in the United States from trying to adopt a legal system based solely on its interpretation of the cannons of a particular religion. If it were to do so, then it is important to keep in mind that 78.5% of Americans self-identify as Christians, while only 0.6% of Americans self-identify as Muslims. Thus, if the United States were to adopt the precepts of a particular religion as the basis of its legal system, it would far more likely be the “Law of Christ” than Sharia.
49 of the 50 states, and the United States itself, use English Common Law (which has nothing to do with Sharia) as the basis of its legal system, while Louisiana uses a legal system based in part on the French and Spanish Civil Codes (which also have nothing to do with Sharia). Yet, there are still legitimate reasons why Sharia law (or foriegn law generally) might play a role in deciding a case, even if the case is being litigated in a jurisdiction that hasn’t adopted Sharia law. Here are some examples:
- A in Texas makes a contract to buy goods from B in Pakistan. A dispute arises. Should that dispute be litigated under Texas law, or Pakistani law? Oftentimes, the contract itself contains what is commonly called a “choice of law” clause that specifically answers that question, and American courts will generally honor a “choice of law” clause as long as the jurisdiction whose law is being chosen has some interest in the dispute (in other words, it’s okay in this example to chose Texas law or Pakistani law, but not Chinese law, since nobody involved in the transaction is in China). Of course, there is always a “strong public policy” exception to this principle, such that if, for example, a contract interpreted under foreign law were to require one of the parties to become a slave, such a provision would not be enforced in the United States even if it would be valid in the foreign jurisdiction.
- Sometimes, a dispute that occurs entirely within a foreign jurisdiction might be litigated in an American court. If, for example, A, and American, travels to London and gets into an accident as a result of forgetting that he was supposed to be driving on the left side of the road, when B, the Englishman who gets hit, sues A in an American court the American court will adjudicate the dispute according to English traffic laws. Similarly, if a dispute of some sort arises entirely within a country that has adopted “Sharia law,” the American court — subject to the “strong public policy” exception noted above, will adjudicate the dispute according to the law in effect where the events occurred.
- Under the legal doctrine of “comity,” an American court will generally enforce a judgment entered by a foriegn court, provided the foriegn court had jurisdiction over the case, and subject to the aforementioned “strong public policy” exception. In one of the cases sometimes sited by those who claim that Sharia law is being used in the U.S. court system, Ali v. Ali, the plaintiff was trying to enforce in a New Jersey court a custody decree that had been issued by a Sharia court in Gaza. The New Jersey court refused to do so, saying “The law of the Sharia Court is undeniably arbitrary and capricious and cannot be sanctioned by this court, which uses the ‘best interest of the child’ as the overriding concern.” Thus, it is odd that this case should be cited as an example of Sharia law being used in U.S. courts when it stands, instead, as an example of a U.S. court refusing to apply Sharia law.
Here are a few more examples of cases that Sharia law alarmists use in an attempt to prove that the U.S. legal system is in immenent danger of being replaced by some version of Sharia:
- In S.D. v. M.J.R. a husband whose wife was seeking a restraining order against him tried to raise the defense that what was being characterized as “domestic violence” was, in fact, consistent with the couple’s cultural norms (they were Muslims from Morocco). The court rejected this claim, saying:
Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defen[s]e of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion; it was still belief, and belief only.
[W]hen the offense consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.
- In In re: Marriage of Obaidi, to children of Afghani immigrants signed a prenuptial agreement before getting married, which is customary in most Muslim countries. The problem was, the prenuptial was drafted by the wife’s family, and it was written in Farsi, so the husband did not know what he was agreeing to when he signed it. The couple got divorced, and the Washington court expressly ruled that it would not use Islamic law to determine whether or not to enforce the prenup, but it would instead use the same Washington contract law that it uses with prenuptial agreements generally. It ultimately found the prenup unenforceable.
- In In re Marriage of Shaban a California court refused to apply “Islamic Law” in dividing property after a divorce, and instead applied California law, despite the fact that the couple, who had been married in Egypt, had signed a prenuptial agreement that called for property to be divided according to Islamic law in any dispute. The reason why this case is often cited as an example of how Sharia law is influencing American courts (despite the fact that it, like the ones discussed above, is really an example of the opposite), is because the Court bases its ruling, not on any general distaste for Islamic law, but instead on the vagueness of the phrase “Islamic law” (as noted above, there are many competing schools of Islam), and on the fact that the agreement had been signed by the wife’s father rather than the wife herself. In other words, the California court treated it like any other prenuptial agreement in deciding whether or not it was enforceable.