Thursday, November 11, 2010 There has been much heated debate about whether to allow Sharia law in the United States, particularly in matters relating to marriage and the family. Both sides point to the fact that Islamic law — for better or for worse — is already operating in several other countries, but unfortunately, the arguments of both sides are so often reduced to simplistic sound bites. Those against Sharia law usually point to its harsh criminal penalties; those in favor of it argue that the United States — a country that prides itself on religious tolerance — is discriminating against Muslims by not recognizing Islamic law. But it is not as simple as either side makes it sound. There are several complex matters at issue here — most notably balancing the interests of American society with the right to religious expression. Politics aside, could Sharia law work, legally and logistically, in America?·
There are several basic premises upon which the United States was founded in order to promote a free society. One of the most important of these is religious freedom; first, that the laws of the nation would be secular and that the government would not “establish” a religion (separation of church and state), and second, that people living here would be free to worship as they see fit, or not at all. These concepts are embodied in the Establishment and Free Exercise Clauses of the First Amendment. But as the Founders declared in their writings — and as U.S. courts have upheld ever since — rights are not absolute and must be limited in order to preserve the society as a whole. The most well-known example is the exception to Free Speech: one cannot call “fire!” in a crowded theater, because of the inevitable panic that would ensue, endangering the lives of others.
The same is true of religion. The Founders were quite clear on the point that while there could be no abridgment of thought or belief in one’s religious faith, there can and will be limitations placed on one’s actions. Actions in the name of religious worship, when they conflict with the laws of the United States, are not protected. There are several aspects of Sharia law that would prove problematic in this country.
One example is Sharia’s acceptance of polygamy. A recent Der Speigel article regarding Germany’s application of Sharia law illustrates this issue. Under Sharia law, a man is allowed several wives. German courts will adjudicate such a case, determining whether the wives are entitled to support, a portion of the husband’s pension or estate in the event of his death. In the U.S., however, this would create enormous conflict, given the fact that polygamy has been illegal since the 19th century. In fact, in recent years several polygamist Mormon communities have been raided and disbanded by the government. If American courts were to recognize and afford protection to polygamist relationships created under Sharia law, this would no doubt give rise to numerous equal protection lawsuits by Mormons who believe in polygamy as part of a faith-based lifestyle.
Another central concern regarding Sharia law is its treatment of women. There have already been several cases in which U.S. courts have refused to enforce Sharia in family matters on the grounds that it violates public policy. Most recently, Judge Joseph Charles of New Jersey refused to grant a Muslim woman a restraining order against her husband, who she claimed had sexually abused her. The basis for the judge’s ruling was that the husband had no “intent” to rape her, but was simply following what he believed to be his right under Sharia law. Indeed, under Sharia law it is considered a wife’s duty to make herself available to her husband at all times, as he is not allowed to seek sexual gratification outside the marriage. Not allowing him such access is considered a threat to the core of the marital relationship and a basis for a husband’s denial of financial support. However, under the laws of the state of New Jersey, when a man forces himself on any woman — even his wife — it is rape. Therefore, the Appellate Court overturned Charles’ ruling and the husband was arrested for his crime. In fact, in the past several years more states have moved toward applying the same penalty for spousal rape as when the rapist is a stranger. To allow a separate justice for husbands — or less protection for wives — under Islamic law is in contravention of every notion of equality on which the U.S. legal system is based.
Another example is In the Matter of Ramadan, the 2006 New Hampshire case in which a Muslim husband sought to enforce in that state an Islamic divorce decree. The couple married in Lebanon, but had since lived in several places, including New Hampshire. Under Sharia law, a husband may divorce his wife by telling her three times that he wishes to dissolve the marriage. In this case, the husband, after telling his wife he wished to divorce her, traveled to Lebanon to obtain the decree. While he was gone his wife filed for divorce and financial support in New Hampshire family court. When the husband ignored the action, the court awarded the wife everything she had petitioned for. The New Hampshire court would not recognize divorces obtained in other jurisdictions because the couple had been domiciled in New Hampshire when the divorce was initiated. A state is not going to afford recognition to Sharia law when it does not even afford that recognition to another state.
Alimony is another aspect of family law which is treated completely differently under Sharia than in American courts. Under Sharia law, marriage begins with the creation of a contract. Under this contract, a woman is entitled to maintenance by her husband, meaning that during the marriage he has to support her according to his financial means. If divorce is commenced, the man is required to support his wife during the iddat, or waiting period. Once the divorce is final, however, a man is not required to provide any financial support to his ex-wife, regardless of her circumstances. Only if it has been included in the original marriage contract is a woman entitled to support after the dissolution of the marital relationship.
Alimony in the United States, on the other hand, varies from state to state; for example, some states base alimony on the length of the marriage, including common law unions. In some states fault is a factor; in others, alimony is based solely on financial need. Support is usually terminated when the party receiving support remarries. But the fact remains, alimony is a matter to be determined either by the court or through mediation on a case by case basis.
There is also a discrepancy in the laws concerning child custody. Under Sharia law, the mother retains physical custody of the children during the “years of dependence.” When they reach a certain age, usually 7-9 years for boys and 9-11 years for girls (although this varies among different schools of Sharia), the father takes physical custody. A woman can also lose custody of her children if she remarries or converts to another religion. In the U.S., the standard in all matters relating to children is “the best interests of the child.” Would Muslim women in this country, if deprived of their children once they have reached a certain age, have recourse in American courts? If not, this would no doubt be a concern of American jurists, particularly in cases of alleged abuse.
Several other countries were faced with similar dilemmas, and they have allowed Sharia courts to operate alongside their own judicial systems, in the form of arbitration. Israel and India, for example, recognize Sharia courts, despite the religious disputes that exist in their countries between Muslims and non-Muslims. However, their decisions can be appealed to the high courts, and may be overturned if they violate basic rights or the laws of the land. But in England, where Sharia courts adjudicate civil matters under the Arbitration Act of 1966, their existence is being hotly contested. Human Rights groups, such as One Law for All and Iranian Solidarity, argue that these courts and tribunals have created parallel legal systems in which Muslims are deprived of the rights enjoyed by others living in England. These tribunals operate by consent of the parties, mediating cases involving family issues such as divorce, alimony and child custody. But Iranian Solidarity and other groups point out that Muslim women — who are often at a grave disadvantage under Sharia law — are under immense religious and social pressure to “consent.” In addition, these decisions are as binding as any in a secular court, so there is no hope of appeal if the decision is unfair.
There is little reason to assume that in the United States, whose legal system is so similar to England, the application of Sharia law would be any different. Another critical factor is the very different natures of religious versus secular law. Whereas religious laws — such as Sharia — remain unchanging, the laws, mores, and what is considered “just” in America is constantly in flux. No one would dispute that the U.S. has often fallen short of the ideals contained in its Constitution, but most would agree that jurists and legislators alike continue to strive to reach those ideals. One area in which we have made great strides as a nation is the equality of women. To allow a particular group of women — be they Muslim or otherwise — to be governed under a separate law that could be construed as inequitable, would no doubt be unpalatable to many Americans.
D.M. has a Juris Doctor from New York Law School and is a freelance writer and editor from New York City.