Shari'ah's Uphill Climb
A constitutional battle over Muslim family law has begun. In November 2010, Oklahoma voters approved a state constitutional amendment banning the use of Muslim Shari'ah and other international laws in its state courts. This was a direct rejoinder to other Western nations allowing Muslim citizens to enforce Muslim marriage contracts in state courts and to resolve family law issues before Shari'ah tribunals without state interference. Oklahoma's citizens wanted none of it, and they voted to ban the use of Shari'ah altogether. Twelve other states are discussing comparable measures.
In January 2012, however, a federal appeals court upheld a lower federal court injunction of Oklahoma's amendment. Singling out a specific religious law for special prohibition, the court of appeals concluded, violated the First Amendment Establishment Clause and unjustifiably injured Oklahoma's Muslim citizens. This leaves Oklahoma courts with a stark choice: allow Muslims to use Shari'ah to govern internal religious affairs and the private lives of voluntary members, or equally prohibit all religious groups from exercising comparable authority through organs of internal mediation, ecclesiastical discipline, and canon law.
Oklahoma can likely escape this choice by crafting a more neutrally-phrased constitutional amendment. But deft legal drafting will not end the matter. As American Muslims grow stronger and anti-Muslim sentiment in America goes deeper, constitutional and cultural battles over Muslim laws and tribunals will likely escalate.
Many Shari'ah advocates reject America's sexual revolution of the past half century, built on cultural and constitutional ideals of sexual privacy, equality, and autonomy. They reject the easy-in/easy-out system of American family law that has brought ruin to so many women and children. They reject America's legal protections for nonmarital sex, sodomy, abortion, and same-sex marriage. Distrusting the modern liberal state's capacity to reform its laws of sexuality, marriage, and family life, Shari'ah advocates want out.
They have two main objectives: to give Muslims the right to opt out of the state's liberal family law into their own religious community's morally rigorous system; and to give Muslim religious officials the right to operate that system for voluntary members without undue state interference or review.
Some advocates want separate Muslim arbitration tribunals that operate alongside the state; others want independent Shari'ah courts akin to those of Native American tribes or those of modern-day India. Some are pressing for gradual, piecemeal accommodations of Muslim family law, fearing the dominance of one form of Shari'ah over another. Others want more rapid wholesale change in pursuit of what they call "family law pluralism." But the bottom line is the same: to allow Muslim communities eventually to become more of a law unto themselves in the governance of marriage and family life. For the past decade, law journals, blogs, and conferences have been full of sophisticated papers pressing this case. Readers can get a good sampling of these arguments in two superb new edited volumes: Shari'a in the West (Oxford University Press) and Marriage and Divorce in a Multicultural Context (Cambridge University Press).
The three most prominent arguments for the use of Shari'ah family norms and procedures in America (and the rest of the West) are based on religious freedom, political liberalism, and nondiscrimination. Though each argument seems plausible on the surface, they are all, to my mind, fundamentally flawed.