Challenges to religious legal pluralism in 21st-century America: the case of Shari'ah

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Notes

¹Martha F Davis and Emily Abraham, ‘Oklahoma's Anti-Shariah and Other Antitransnational Law Proposals: A Backgrounder for Domestic Human Rights Advocates’ (2011) September–October J Poverty Law Policy 45 Clearinghouse Rev. 243.

² Lawrence v. Texas, 539 U.S. 558 (2003).

³State Question 755, passed by Oklahoma voters in November 2010, amends the state constitution to prohibit courts from considering or applying foreign or religious law, including specifically Shari'ah law. Held to be unconstitutional and its enforcement restrained by a Federal District Court, the finding of unconstitutionality was upheld by the 10th Circuit Court of Appeals in January 2012.

⁴Rep. Peter King (R.-NY), ‘Hearing on the Extent of Radicalization in the American Muslim Community and that Community's Response’ (House Committee on Homeland Security, 10 March 2011) <http://homeland.house.gov/hearing/hearing-%E2%80%9C-extent-radicalization-american-muslim-community-and-communitys-response%E2%80%9D>.

⁵Eileen Sullivan, ‘Peter King: Hearings on Muslims in American Will be Fair’ Huffington Post (9 March 2011) <http://www.huffingtonpost.com/2011/03/09/peter-king-hearings-on-mu_n_833543.html>.

⁶‘Pluralism, Immigration and Civic Integration Survey’ (PPR/RNS Religion News Survey 2/2011, released 6 September 2011) <http://publicreligion.org/research/2011/09/what-it-means-to-be-american>.

⁷Liz Goodwin, ‘Is There Really a Creeping Sharia Threat?’ The Upshot, Yahoo! News (5 November 2010) <http://news.yahoo.com/blogs/upshot/really-creeping-sharia-threat.html>.

⁸Roundtable participants were attorneys Gregory Mitchell, Anthony Simpkins, and Janaan Hashim; scholars Sherman Jackson and Aminah McCloud met in a short series of teleconferences to discuss issues over two months in 2011.

⁹For a summary of these laws, see the Appendix.

¹⁰Laureve Blackstone, ‘Note: Courting Islam: Practical Alternatives to a Muslim Family Court in Ontario’ (2005) 31 Brooklyn J Int Law 207.

¹¹James Madison, To the Honorable, The General Assembly of the Commonwealth of Virginia: A Memorial and Remonstrance (1785).

¹²Elwyn A Smith, ‘The Fundamental Church–State Tradition of the Catholic Church in the United States’ (1969) 38(4) Church Hist 488.

¹³ S.S. & B. Live Poultry Corp. v. Kashruth Association, 285 N.Y.S. 879, 883 (Sup. Ct. 1936).

¹⁴ People v. Ruggles, 8 Johns. 290 (N.Y. 1811).

¹⁵ Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532 (1993).

¹⁶Ibid.

¹⁷ Employment Division, Department of Human Resources of Ore v. Smith, 494 U.S. 872, 879 (1990) (quoting U.S. v. Lee, 455 U.S. 252, 263 n. 3 (1982) (Stevens concurring)) (emphasis added).

¹⁸ Smith (n 17) 885.

¹⁹ Church of Lukumi (n 15) 534 (quoting Bowen v. Roy, 476 U.S. 693, 703 (1986) (opinion of Justice Burger)).

²⁰ Church of Lukumi (n 15) 539, 547.

²¹ Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

²² Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (the Court's three-prong Lemon Test).

²³Ibid. 626 (Douglas and Black concurring).

²⁴ Cutter v. Wilkenson, 544 U.S. 709 (2005) (citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 349 (O'Connor concurring)).

²⁵ United States v. Ballard, 322 U.S. 78, 86 (1944) (“the First Amendment … ‘forestalls compulsion by law of acceptance of any creed or the practice of any form of worship’ but also ‘safeguards the free exercise of the chosen form of religion,’” citing Cantwell v. Connecticut, 310 U.S. 296, 303).

²⁶ Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969).

²⁷ Maryland and Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 370 (1970) (Brennan concurring); also Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 313 (1992) (religious customs and principles can be relevant in certain civil disputes, particularly with respect to contractual promises that can be decided by applying neutral principles of law).

²⁸301 N.Y.S. 2d 237 (Sup. Ct. 1969), aff'd, 312 N.Y.S. 2d 815 (1970); excerpted from ‘Enforceability of Religious Law in Secular Courts: It's Kosher, but Is It Constitutional?’ (1973) 71(8) Michigan Law Rev 1641.

²⁹ Wener v. Wener, 301 N.Y.S. 2d 237, 240 (Sup. Ct. 1969) (The phrase “the laws of Moses and Israel” refers to the laws of the Jewish people, not to the modern state of Israel. As the ketuba itself does not list the specific obligations of a husband whose wife has sought to adopt a child, the extent of the husband's obligations can only be determined by reference to that law, and there is no single codification of Jewish law).

³⁰ Wener v. Wener, 312 N.Y.S. 2d 815, 819 (Sup. Ct. 1971).

³¹ Employment Division, Department of Human Services v. Smith, 494 U.S. 872, 879 (1990); see n 42 below.

³² Maryland & Virginia Churches of God v. Sharpsburg, Inc., 396 U.S. 367, 370 (1970); see n 22 above.

³³215 N.Y.S. 184, 187 (App. Div. 1926).

³⁴ Hilton v. Guyot, 159 U.S. 113, 163 (1895): “No law has any effect beyond the limits of the sovereignty from which its authority is derived. The extent to which one nation shall be allowed to operate within the dominion of another nation, depends upon the comity of nations. Comity is neither a matter of absolute obligation, nor of mere courtesy and good will. It is a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignty to which they belong, that courts of justice have continually acted upon it as a part of the voluntary law of nations. It is not the comity of the courts, but the comity of the nation, which is administered and ascertained in the same way, and guided by the same reasoning, by which all other principles of municipal law are ascertained and guided.”

³⁵798 So. 2d 75 (La. 2001).

³⁶No. 287403 (Mich. Ct. App. April 7, 2009).

³⁷108 Md. App. 284 (1996).

³⁸ Odatalla v. Odatalla, 355 N.J. Super. 305 (2003); also Aziz v. Aziz, 488 N.Y.S. 2d 123 (N.Y. Sup. Ct. 1985) (the secular terms of an Islamic marriage contract are enforceable by a civil court as contractual obligations, notwithstanding the fact that the contract was entered into as part of a religious ceremony).

³⁹215 N.Y.S. 184, 187 (1926).

⁴⁰ Abd Alla v. Mourssi, 680 N.W. 2d 569 (Minn. Ct. App. 2004); also Jabri v. Qadurra, 108 S.W. 3d 404 (Tex. Ct. App. 2003) (the court upheld an arbitration award, rendered by an Islamic arbitrator, and based on Islamic law, finding that the underlying agreement applied to all the disputed matters addressed in the arbitration award).

⁴¹ SD v. MJR, 415 N.J. Super. 417 (2010).

⁴² People v. Benu, 385 N.Y.S. 2d 222 (NY Crim. Ct. 1976).

⁴³ Aghili v. Saadatnejadi, 958 S.W. 2d 784 (Tenn. App. Ct. 1997).

⁴⁴Tenn. Code Ann. §36-3-301(a).

⁴⁷18 Johns. 98 (N.Y. Sup. 1820), Chief Justice Spenser.

⁴⁵ Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445 (1969): “The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a ‘substantial departure’ from the tenets of faith and practice existing at the time of the local churches' affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion – the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role” (Brennan, CJ., for the Court).

⁴⁶ Maryland and Virginia Churches v. Sharpsburg Church, 396 U.S. 367, 370 (1970) (Brennan concurring); also Alicea v. New Brunswick Theological Seminary, 128 N.J. 303, 313 (1992) (religious customs and principles can be relevant in certain civil disputes, particularly with respect to contractual promises that can be decided by applying neutral principles of law).

⁴⁸ Stansbury v. Marks, 2 Dall. 213 (Pa. 1793); also Simon's Executors v. Gratz, 2 Pen. & W. 412 (Pa. 1831) (the litigant was not entitled to a trial continuance on the ground that appearing on his Sabbath would violate his religious principles).

⁴⁹ People v. Philips, Court of General Sessions, City of New York (June 14, 1813); excerpted in Privileged Communications to Clergymen, 1 Cath. Lawyer 199 (1955).

⁵⁰ People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811), Chief Judge Kent's opinion.

⁵¹For example, Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824); Commonwealth v. Kneeland, 37 Mass. 206 (Mass. 1838); and State v. Chandlier, 2 Del. 553 (Del. 1837).

⁵² Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

⁵³ Lemon v. Kurtzman, 402 U.S. 602, 612–14 (1971).

⁵⁴ Jones v. Wolf, 443 U.S. 595, 602–03 (1979).

⁵⁵Umar Faruq Abd-Allah, ‘Living Islam with Purpose’ (Nawawi Foundation, Chicago, IL 2007) 22.

⁵⁶Ibid., 30.

⁵⁷Based generally and in part upon Qur'an 7:199 (Sura Al-Araf, ayat 199), “enjoin good customs [or the good].”

⁵⁸Rabbi Jon-Jay Tilsen, ‘May a Husband Beat His Wife? Classical Halakhic Sources on Domestic Violence’ (Congregation Beth El-Keser Israel, 11 April 2007) <http://www.beki.org/domestic.html>.

⁵⁹Arab American Family Services founded in Chicago in 2001 anticipated the possibilities of domestic violence due to emotional and psychological instability caused by the constant surveillance of Arab Muslims and made this service available to engage communities in preventive measures.

⁶⁰Timothy Marr, The Cultural Roots of American Islamicism (Cambridge University Press, New York, NY 2006).

⁶¹“The punishment of those who wage war against Allah and His Messenger, and strive with might for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter” (Qur'an, sura Al-Maidah 5:33).

⁶²Also Qur'an, 4:138: “Those who believe, then disbelieve, then again believe, then disbelieve and then increase in disbelief, Allah will never forgive them nor will He guide them to the right way.” This clearly contemplates a person leaving and returning to Islam several times, negating the possibility of death being the sanction for that infraction.

⁶³'Abdullah (b. Mas‘ud) reported Allah's Messenger (ph) as saying: “It is not permissible to take the life of a Muslim who bears testimony (to the fact that there is no god but Allah, and I am the Messenger of Allah), but in one of the three cases: the married adulterer, a life for life, and the deserter of his Din (Islam), abandoning the community” (Sahih Muslim: Book 016, No. 4152).

⁶⁴Qur'an, sura Al-Tawbah (the Repentance).

⁶⁵“If they repent and uphold the practice of prayer and almsgiving, then they are your brothers in religion. If after this, however, they break their covenant, then war should be waged against the leaders of kufr (disbelief)” (Qur'an, 9:11).

⁶⁶“The Marriage Vow: A Declaration of Dependence upon Marriage and Family' Family Leader (July 2011) <http://www.thefamilyleader.com/wp-content/uploads/2011/07/themarriagevow.final_.7.7.111.pdf>.

⁶⁷For the text of this bill, see the Appendix. The bill was passed in May 2011, as HB135 and SB1028, after significant amendment in the face of vigorous objection from Tennessee Muslims and threats of court challenges. The offensive provisions and all references to Shari'ah were removed as was the provision allowing the State of Tennessee to designate “Shari'ah organizations,” replacing it with reference to organizations designated as terrorist organizations by the Federal departments of State and Treasury. A statement was also added that the law does not target the peaceful practice of any religion.

⁶⁸The original text of the Act further defined Shari'ah as “the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god Allah or the prophet Mohammed” and includes “[a]ny rule, precept, instruction or edict arising from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafa'i, Hanbali, Ja'afariaya, of Salafi.”

⁶⁹The Department of Justice created the National Security Entry–Exit Registration System (NSEERS) in 2002 pursuant to sections 262(a) and 263(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1302(a) and 1303(a), which has been since discontinued; Department of Homeland Security, ‘Removing Designated Countries from the National Security Entry–Exit Registration System’ (28 April 2011) 76(no. 82) Federal Register <http://edocket.access.gpo.gov/2011/2011-10305.htm>.

⁷⁰Margaret Chon and Donna E Arzt, ‘Walking While Muslim’ (2005) 68(2) Law Contemporary Problems 228; quoting Moustafa Bayoumi, ‘Racial Religion’ (unpublished paper on file with Law Contemporary Problems) 7.

⁷¹Jonathan K Stubbs, ‘The Bottom Rung of America's Race Ladder: After the September 11 Catastrophe are American Muslims becoming America's New N…..s?’ (2003–04) 19(1) J Law Religion 123; quoting Leti Volpp, ‘Critical Race Studies: The Citizen and the Terrorist’ (2002) 49 UCLA Law Review 1575.

⁷²Cynthia Brougher, Application of Religious Law in U.S. Courts: Selected Legal Issues (CRS Report for Congress, 18 May 2011) <http://www.fas.org/sgp/crs/misc/R41824.pdf>.

⁷³Ibid. 13.

⁷⁴John T McGreevy and R Scott Appleby, ‘Catholics, Muslims, and the Mosque Controversy’ New York Review of Books (27 August 2010) <http://www.nybooks.com/blogs/nyrblog/2010/aug/27/catholics-muslims-mosque-controversy>.

⁷⁵Karen Gross, Jean Moore and Jerry Moore, ‘Threat of Incursion of Shariah Law into U.S. Courts is Unfounded’ Austin American-Statesman (31 May 2011) <http://www.adl.org/ADL_Opinions/Religious_Freedom/20110601-Austin+American+Statesman+Op-ed.htm>.

⁷⁶‘Letters: Islamic Law and Judaism’, The New York Times (7 August 2011).

⁷⁷ United States v. Lee, 455 U.S. 252, 256–8 (1982) (the imposition of Social Security taxes is not unconstitutional as applied to an Amish farmer who objected on religious grounds to receipt of public insurance benefits and payment of taxes to support them. To the extent that there is a conflict between the religious faith and the obligations imposed by the state, the state may limit religious liberty where it is essential to accomplish an overriding governmental interest).

⁷⁸‘Most Americans Support Congressional Probe on Muslims’ (PRRI/RN Religion News Poll, 16 February 2012) <http://publicreligion.org/research/2011/02/majority-say-congressional-hearings-on-alleged-extremism-in-american-muslim-community-%E2%80%98good-idea%E2%80%99>.

⁷⁹Jamilah King, ‘13 States Introduce Useless Bills to Ban Sharia Law’ Color Lines (9 February 2011) <http://colorlines.com/archives/2011/02/13_states_introduce_bills_to_ban_sharia_law.html>; Bill Raftery, ‘Bans on Court Use of Sharia/International Law Advance in Alabama, Alaska, Arizona, Florida, Kansas, Missouri, and Oklahoma’, Gavel to Gavel (11 April 2011) <http://gaveltogavel.us/site/2011/04/11/bans-on-court-use-of-shariainternational-law-advance-in-alabama-alaska-arizona-florida-kansas-missouri-and-oklahoma>; Bill Raftery, ‘Bans on Court Use of Sharia/International Law: 33 Bills in 20 States to Start 2012; Review of All Efforts Since 2010’, Gavel to Gavel (30 January 2012) <http://gaveltogavel.us/site/2012/01/30/bans-on-court-use-of-shariainternational-law-33-bills-in-20-states-to-start-2012-review-of-all-efforts-since-2010>.