A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.
“The Danger of “Anti-Sharia” Legislation to Religious Arbitration — And Not Just by Muslims”
Asma T. Uddin
Over the past decade or so, a raft of bills has been introduced across the country that purport to protect the U.S. legal system, and even Western civilization itself, from the dangers of “creeping sharia” or Islamic law. These anti-sharia laws do nothing to actually stop the imaginary sharia swamp creature from contaminating the U.S. Rather, their legal effect has been to intervene in the rather humdrum matter of how people of faith — whether they be Muslim, Christian, or Jewish — can figure out their family matters (marriage, divorce, inheritance), business disputes, and internal community matters according to their own religious traditions.
This attack began in 2006 and was specifically aimed at Muslims. David Yerushalmi, the founder of a nonprofit called the Society of Americans for National Existence, first proposed a law that would make the observance of Islamic law (which he likened to sedition) “a felony punishable by 20 years in prison.” By 2009, with the emergence of the Tea Party movement, Yerushalmi began work on a model statute called “American Law for American Courts” (ALAC) that would “stop state judges from considering foreign laws or rulings that violate” American constitutional rights.
However, from Yerushalmi’s writings it is clear that the statutes themselves weren’t his primary goal: “If this thing passed in every state without any friction, it would not have served its purpose…the purpose was heuristic — to get people asking this question, ‘What is Shariah?” The goal was to paint Muslims as untrustworthy and out of step with American values. This rhetoric invokes many of the same tropes used against Catholics in the nineteenth and twentieth centuries, such as being loyal to a foreign law.
The first generation of these anti-sharia laws singled out sharia specifically from all other legal traditions and described it as anti-American and treasonous. For example, a proposed bill in Alabama and an amendment to Oklahoma’s constitution said that a court cannot look at the law of other countries or cultures in deciding cases, specifically prohibiting international law and sharia. While the Oklahoma amendment was struck down in the federal courts on First Amendment grounds, the proponents of such bills did not give up; they just fixed their mistakes and became savvier.
Instead of singling out sharia, the second generation of anti-sharia bills included several other religious legal traditions to be prohibited. For example, an Arizona bill stated that courts could not consider “religious sectarian law,” and then defined the term to include sharia, canon law, halacha (Jewish law) and, bizarrely, karma. However, because the wording of these bills meant that all faiths were now disfavored by the State, they too failed to pass muster under First Amendment jurisprudence.
The final evolution of anti-sharia laws, and the most common type of bill, simply denies courts any consideration of foreign law. There is no mention of sharia law, or religious law in general, but foreign law is defined to include “any law, rule, or legal code, or system other than the state and federal constitutions, state and federal statutes, and the ratified treaties of the U.S.” The facial neutrality of these laws has enabled them to bypass First Amendment issues and, to date, Yerushalmi’s model law has been virtually cut and pasted into proposed bills in 43 states. A total of 217 anti-sharia bills have been introduced and have passed in twenty states.
These anti-sharia laws don’t solve any existing problems, but they do create new ones, with the most egregious example coming from a women’s rights perspective. Anti-sharia proponents portray themselves as advocates for women, but these laws are all too likely to deprive women of rights they might have under religious law. Take the case of Elham Soleimani, who filed for a divorce from her physically abusive husband in 2012 while living in a Kansas women’s shelter. Under the terms of their Islamic marriage contract, entered into in Iran, Soleimani was owed the equivalent of $677,000 in the event of divorce. But the Kansas court refused to enforce the marriage contract, because the state’s anti-sharia law, passed just two months before Soleimani filed for divorce, said it couldn’t.
And these laws apply to religious arbitration, too. Did we need them? Definitely not.
Under U.S. law, religious organizations have broad religious autonomy and religious individuals – like all Americans –have broad freedom of contract. However the U.S. legal system already has plenty of safeguards built in. While the U.S. Constitution, and specifically its religious liberty clauses, allows for religious arbitration, there are definite limits. For example, religious arbitration is limited to civil law matters and does not extend to criminal law issues. Religious arbitrators cannot impose physical punishments or overstep the bounds of authority granted to them by federal and state law, regardless of what their religion may teach. That means no cutting off the hands of thieves, stoning adulterers, or any other punishment that American culture (including Disney’s Aladdin) may popularly associate with sharia. In addition, even in certain civil matters — for example, when children are involved — the state tends to exercise a bigger role and, in some cases, may even flat-out prohibit things like the arbitration of disputes over child arrangements in cases of divorce.
And any time an arbitration decision is brought to a court for enforcement, the court checks to make sure the decision is fair by asking questions like: Does it violate U.S. laws in any way? Does the decision comply with U.S. public policy? Did the parties submit to arbitration voluntarily? Does the decision unfairly discriminate against one party? And religious arbitrators have to follow “a set of published, standardized and reasonable procedural limitations, such as allowing lawyers to be present, treating all parties and witnesses equally regardless of sex and avoiding even the hint of bias.”
Because we already have rules that regulate what religious arbitration can and can’t do, anti-sharia laws add no value. What the anti-sharia and antiforeign law proponents might not have realized, however, is that these broader, facially neutral laws impact not just Muslims, but all religious believers who want to use religious arbitration. In fact, sharia arbitration is rare compared to other types of religious arbitration in the U.S. Many Christian and Jewish Americans consider religious arbitration indispensable to a faithful life. For example, Orthodox Jews use the Beth Din of America; a court of Jewish law that helps believers arbitrate “disputes through the din Torah process, obtain Jewish divorces, and confirm…Jewish personal status issues.” Christian Conciliation provides a framework for parties to resolve a dispute using mediation or arbitration based on Biblical principles.
What anti-sharia and anti-foreign law proponents might not have realized is that these broader, facially neutral laws impact not just Muslims, but all religious believers who want to use religious arbitration, including Jews and Christians.
And what impact do anti-sharia laws have on religious arbitration? Well, these laws won’t stop people from writing religious contracts or from using religious arbitration. However, if the parties bring their arbitration decision to a secular court for enforcement, anti-sharia laws do prevent civil courts from stepping in. On top of that, antiforeign law bills also interfere with non-religious contracts that involve foreign transactions, which can impose unnecessary obstacles to foreign adoptions, marriages abroad, and business dealings with parties outside the U.S.
So, while anti-sharia laws may have been designed to prevent a sharia bogeyman from hijacking American courts (and to malign an entire religious community), the only thing they contribute to is the unnecessary weakening of American law. They lead Americans to believe that our legal system is unsuited to cultural and religious complexity. The fear and anxiety they provoke is completely avoidable and harms us all. ♦
Asma Uddin is the author of When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom (2019) and The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America (2021). She is a Visiting Assistant Law Professor at Catholic University’s Columbus School of Law. Ms. Uddin is also a Fellow at the Aspen Institute’s Religion & Society Program, where she is leading a project on Muslim-Christian polarization in the U.S.
Uddin, Asma. “The Danger of “Anti-Sharia” Legislation to Religious Arbitration — And Not Just by Muslims.” Canopy Forum, March 16, 2022. https://canopyforum.org/2022/03/16/the-danger-of-anti-sharia-legislation-to-religious-arbitration–and-not-just-by-muslims/.