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.
Shari'ah and Religious Freedom
The first argument centers on religious freedom. Both Western constitutional laws and international human rights norms give robust protection to the religious freedom of individuals and groups. Why deny peaceful Muslim citizens the freedom to opt out of state laws on sex, marriage, and family that run afoul of central faith commandments? Why deny them the freedom to order their domestic lives according to their own religious norms? Doesn't freedom of religion protect a sincere Muslim against court actions on unilateral divorce or child custody that directly contradict the rules of Shari'ah? Doesn't it empower a pious Muslim man to take four wives into his loving, permanent care, in imitation of the Prophet, especially since his secular counterpart can live with four women at once and then walk out scot-free?
This argument, however, falsely assumes that claims of conscience and religious free exercise must always trump. But this is hardly the case in modern democracies, even though religious freedom is cherished. Even the most sincere and zealous conscientious objectors must pay taxes, register properties, answer subpoenas, obey court orders, answer military conscriptions, and abide by many other general laws that they may not in good conscience wish to obey. If they persist in their claims of conscience, they must either leave the country or go to prison for contempt. Even the most devout religious believer enjoys no immunity from criminal laws against activities like polygamy, child marriage, female genital mutilation, or corporal discipline of wives. Religious freedom is not a license to engage in crime.
Muslims who are conscientiously opposed to liberal Western laws of sex, marriage, and family are certainly free to ignore them. They can live chaste private lives in accordance with Shari'ah and decline to register their religious marriages with the state. But such choices also deprive families entirely of the protections, rights, and privileges available through the state's complex laws of marriage and family, marital property and inheritance, social welfare, insurance, and more. If minors are involved, the state will intervene to ensure their protection, support, and education, hearing nothing of free-exercise objections from parents or community leaders. Western Muslims enjoy the same religious freedom as everyone else, but some of the special accommodations sought by some Muslim advocates today are simply beyond the pale for most Western democracies.
Even further beyond the pale is the argument that corporate religious freedom gives religious officials the power to govern the sex, marriage, and family lives of their voluntary faithful. Most Western democracies readily allow religious officials to officiate at weddings, testify in divorce cases, assist in the adoption of a child, facilitate the rescue of a distressed family member, and the like. Some democracies also will uphold religious arbitration awards and mediation settlements over domestic issues. But that is a long way from delegating full legal power to religious bodies for governing the domestic affairs of their voluntary faithful. No democratic state can readily allow a competing sovereign to govern such a vital area of life. Family law is too interwoven with other public, private, procedural, and penal laws. And many other rights and duties turn on a person's marital and familial status. Surely a democratic citizen's status, entitlements, and rights cannot turn on the judgments of a religious authority operating under none of the state's due process and other procedural constraints.
Once a state starts relinquishing sovereignty in this fashion, skeptics argue, nothing can prevent the gradual development of a rival religious law over sex, marriage, and family life, particularly as Muslim communities grow larger and more politically powerful. That was why Oklahoma (following several Western nations) prohibited the use of Shari'ah altogether.
Shari'ah and Classical Liberalism
A second argument for Shari'ah appeals to the philosophical heart of American constitutional law: classical political liberalism. Under classic liberalism, marriage is a pre-political and pre-legal institution; it comes before the state and its positive laws. In his Two Treatises of Government (1690), John Locke called the marital contract "the first contract" and "the first society" of men and women to emerge from the state of nature. Only upon this preexisting foundation of stable marriage contracts was the broader social contract built, and thereafter contracts to form governments and other associations.
If marriage precedes the state, the argument goes, why should the state get exclusive jurisdiction over it? After all, it was 16th-century Protestants, not the 18th-century Enlightenment, who gave the state the power to govern marriage and family life. Before the Protestant Reformation—and in many Catholic lands well thereafter—the Catholic Church's canon law and church courts governed marriage, family, and sexuality. Moreover, even in Protestant England until 1857, the state delegated a number of marriage and family law questions to church courts. Nothing dictates that Western marriage and family law be administered by the state. And nothing in liberalism's contractarian logic requires married couples to choose the state, rather than families or religious communities, to govern their domestic lives—particularly when the state's liberal rules diverge so widely from their own beliefs and practices.
This argument, however, ignores another elementary teaching of classical liberalism: Only the state, and no private association, can hold the coercive power of the sword. In liberal democracies, the people grant the government this coercive power over individuals, but only in exchange for strict guarantees of due process of law, equal protection under the law, and respect for fundamental rights. A comprehensive system of marriage and family law—let alone the many related legal systems of inheritance, trusts, family property, children's rights, education, social welfare, and more—cannot long operate without coercive power. It needs police, prosecutors, and prisons; subpoenas, fines, and contempt orders; material, physical, and corporal sanctions. Moral suasion and example, coupled with communal approbation and censure, can certainly do part of the work. But a properly functioning marriage and family law system requires all these coercive instruments of government. And no religious authority can wield coercive power.
Shari'ah and Religious Equality
The third argument for Shari'ah appeals to norms of religious equality and nondiscrimination. After all, many Western Christians have religious tribunals to govern their internal affairs, including some family matters. State courts will respect their judgments, even if their cases are appealed to Rome, Canterbury, or Moscow. No one is talking of abolishing these Christian church courts or trimming their power. No one seems to think these Christian tribunals are illegitimate, even when some of them seem to discriminate against women in decisions about ordination and church leadership. Similarly, Jews are given wide authority to operate Jewish law courts to arbitrate marital, financial, and other disputes. Indeed, in New York State by statute, and in several European nations by custom, courts will not issue a civil divorce to an Orthodox Jewish couple unless the Jewish law court, the beth din, issues a religious divorce, even though Jewish law systematically discriminates against the wife's right to divorce. If Christians can have their canon laws and consistory courts, and Jews their Halacha and beth din, then why can't Muslims use Shari'ah and Islamic courts?
This argument takes more effort to parry. A useful starting point is the quip of former U.S. Supreme Court justice Oliver Wendell Holmes Jr.: "The life of the law has not been logic, but experience." Holmes's adage has bearing on this issue. The current accommodations made to the alternative legal systems of Christians, Jews, first peoples, and others in the West were not born overnight. They came only after centuries of sometimes hard and cruel experience, with gradual adjustments and accommodations on both sides.
It is discomfiting but essential to remember that Jews were the perennial pariahs of the West for nearly two millennia, consigned at best to second-class status, and periodically subject to waves of brutality—whether imposed by Germanic purges, medieval pogroms, early modern massacres, or the 20th-century Holocaust. Living in perennial Diaspora since the destruction of Jerusalem in A.D. 70, Jews have experienced a wide variety of legal cultures. After the third century, the rabbis developed the important concept of dina d'malkhuta dina ("the law of the community is the law"). This meant that Jews accepted the law of the legitimate and peaceful secular ruler, unless it conflicted with core Jewish laws. Over time, they learned which secular laws and practices could be accommodated, and which had to be resisted even at the risk of life and limb. This technique led to ample innovation and diversity of Jewish law over time and across cultures, enabling the Jews to endure great persecution.
In turn, Western democracies—particularly in the aftermath of the Holocaust—have gradually come to accommodate core Jewish laws and practices. Today, Western Jews generally get Sabbath day accommodations, access to kosher food, freedom to wear yarmulkes in public places, and recourse to zoning, land use, and building charters for their synagogues, charities, and schools. But all this occurred only in the past two generations, and only after endless litigation and lobbying in state courts and legislatures. At times, even those gains crumble around the edges.
Moreover, Jewish law courts have gained the right to decide some of the domestic and financial affairs of Jews who voluntarily elect to arbitrate their disputes before them. Unlike their medieval and early modern predecessors, modern Jewish law courts leave many issues to the state. They do not claim authority over all of Jewish sex, marriage, and family life. Having abandoned physical coercion and sanctions, they claim no authority beyond persuasion to stop a disputant from walking out of court and out of the Jewish community altogether.
This story of Jewish accommodation holds three lessons for Shari'ah advocates. First, it takes time and patience for a secular legal system to adjust to the realities and needs of new religious groups. The hard-won accommodations enjoyed by modern Jewish law and culture cannot be effortlessly transposed into the Muslim context. Muslims simply do not have the same history of persecution that the Jews have faced in the West. Nor do they have a long enough track record of litigation and lobbying. Concessions and accommodations will come, but only with time, persistence, and patience.
Second, it takes flexibility and innovation on the part of the religious community to win accommodations from secular laws and cultures. Not every religious belief can be claimed as central; not every religious practice can be worth dying for. Over time, and only grudgingly, Western democracies learned to accommodate the core religious beliefs and practices of Jewish communities. Muslim communities need to emulate the Jews. Islamic laws and cultures have changed dramatically over time, and modern-day Islam now features immense variety. That provides ample opportunity and incentive for Muslim Diaspora communities to make necessary adjustments to Western life, and to sort out core from more discretionary religious practices.
Third, religious communities, in turn, have to accommodate—or at least tolerate—the core constitutional and cultural values of their secular host nations. No Western nation will readily grant concessions to a religious community that rejects liberty, equality, and fraternity, or human rights, democracy, and rule of law.
So far, a small, brave band of mostly Western-trained Muslim intellectuals and jurists have called for the full embrace of democracy and human rights in and on Muslim terms. These are highly promising arguments. It's worth remembering that only within the context of early modern revolutions against tyranny was the West driven to develop many of the core democratic and constitutional values that we still cherish. Something similar might eventually emerge from the current revolutions against tyranny in the Arab and broader Muslim world. Over time, Islam might well present a beneficial new way of thinking about human rights and democratic government, and a new way of relating law, religion, and the family.
John Witte Jr. is Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and director of the Center for the Study of Law and Religion at Emory University School of Law.