Thursday, November 10, 2011
Yesterday I had the privilege to speak to state legislators in Michigan, where an anti-Sharia bill has been introduced. Perhaps learning a lesson from the Oklahoma debacle -- a case in which the statute is explicitly discriminatory -- the Michigan bill is more stealthy, providing that a court or administrative agency "shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or the United States." "Foreign law" is defined as "any law, legal code, or system of a jurisdiction" outside the United States. The bill has more than forty co-sponsors, but the primary proponent makes clear that it aims at Muslim litigants who "do not want to be under our law."
At first glance, I don't think this law would change anything. If the bill aims to ensure that American courts don’t enforce a foreign court’s order if the foreign procedures are not fundamentally fair or otherwise violate basic due process, I’m not sure why we need such a provision. American courts are already focused on that. And I’m not sure how concerns about Sharia law contribute to our understanding of this issue. If a contract is entered under duress or through coercion, or if a foreign court order is entered without a party having the chance to contest it, our courts won’t enforce the contract or the order, regardless of the source of the substantive norms embodied in the contract or order. The unenforceability has nothing to do with Sharia.
If the bill aims at preventing private parties from waiving constitutional rights when the source of the agreement's norms are found in a jurisdiction outside the United States, that sweeps very broadly, and is not just limited to contracts founded in Sharia. I don't know how it threatens the rule of law to permit religious believers to order their lives consistently with the tenets of their faith traditions. When bankruptcy courts apply canon law in determining property rights for a diocese, or when courts enforce arbitration agreements based on biblical principles pursuant to widely invoked rules of "Christian conciliation," or when couples invoke their faith as the basis for the terms of their prenuptial agreements, that raises very few eyebrows. In the dozens of states where anti-Sharia legislation is being proposed, we're erecting a double standard. No one is asking for a court to adopt the sort of penal code that is found in some Islamic countries; they are asking for space to live out their faith commitments. In most cases, these disputes crop up because Sharia provides the terms for the contract that comprises the litigants' marriage (in Islam, the contract does not precede a marriage; the contract is the marriage). The disputed terms usually pertain to the distribution of property upon marriage and in the event of divorce or the husband's death. Whether or not such contracts are enforceable should turn on whether they go beyond what would be tolerable in any other marital contract.
If we keep insisting that Sharia is the enemy of our legal system, Christians are treading on very thin ice. Americans are free to enter into contracts that reflect their own commitments to a host of causes, whether it's PETA, or the PTA, or NARAL. Religious believers should not be precluded from doing the same. I hope Catholics continue to speak out against clearly unjust laws like Oklahoma's, as well as the more subtle but wholly unnecessary versions cropping up around the country. Even if these versions don't actually change the way courts operate, their passage still sends a very troubling message to our Muslim friends and neighbors.