Shari’ah Courts in America?

By Jeffrey Breinholt

An issue in Zeyno Baran’s recent Counterterrorism Blog post jumped out at me because of my current research into how Islam has been treated by U.S. courts. Zeyno’s note dealt with the recent appointment of Imam Talal Eid to the U.S. Commission on International Religious Freedom (USCIRF), which she questioned, in part, because of his suggestion in his Harvard Divinity School dissertation of “the establishment of Shari’ah courts which would manage the family affairs of American Muslims and mediate their religious affairs within the scope of American law.”

When she posted the article, I was attending a transnational counterterrorism conference sponsored by Case Western Reserve University School of Law, and I had occasion to discuss the implications of Eid’s idea with a constitutional law professor in attendance, Wayne McCormack of the University of Utah. How radical Eid’s idea is in American law would depend on the specifics, but I am convinced it is grounds for concern, for the reasons Zeyno puts forth.

In plenty of situations in American life, citizens agree to be bound by the rulings of institutions that do not have any force of law, other than the consent of the parties. Private arbitration, for example, is an established form of resolving labor and stock trading disputes. The legality of arbitration judgments, and their enforceability by U.S. courts, is generally determined by contract law. What happens when religion is injected into the equation?

It might help to consider this question outside of the context of Islam. I can offer up the tradition where I come from, a religious institution in the news lately because of Mitt Romney’s Presidential campaign.

The Mormon Church is somewhat similar to Islam, in terms of how its adherents view their role in society. Mormons believe their church is the only true faith on earth, and they struggle with maintaining doctrinal purity in the face of assimilation. The LDS Church has been known to punish dissidents in a heavy-handed way, and to suffer frustration at how their beliefs are portrayed by non-adherents.

As Professor McCormack’s colleague, Edwin Firmage, described in the book Zion in the Courts, the Mormon Church has its own justice system established to enforce behavioral standards on its members. Bishop courts determine whether Mormons who have violated the behavioral norms of the faith should remain on the memberships roll. These courts are empowered to sanction members with the punishment of excommunication, which results in the stripping of membership and the individual inability to take partake in Mormon sacrament and participate in other spiritual functions.

In some communities, excommunication can seriously impact one’s livelihood. If a Mormon lresides is a predominantly LDS enclave, her Church membership may be necessary for professional goodwill. A Mormon physician, for example, may have staff privileges at LDS Hospital, and a patient base that involves a reputation for trustworthiness fostered through years of faithful church service. This means that being publicly stripped of LDS Church membership can have some real financial consequences, not to mention an impact on non-pecuniary aspects of life (like one’s relationship with neighbors).

The Mormon Church’s internal court system – which also delves into member’s marital conduct and the reasons for divorces – has never been challenged in real courts, in part because there have not been ex-members willing to go that route, but also because lawyers know real courts are reluctant to get too involved in religious matters. This does not mean that the LDS Church has never been sued. For example, some Mormon institutions – which required employees to conform their conduct to Church standards – have been sued for religious discrimination. Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos,. 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). .

Viewed this way, Imam Eid’s idea may not be particularly radical. It has precedent in other American settings. Perhaps he was simply advocating an increase in church-provided services to American Muslims.

However, the risk lies in a particularly apt observation by Zeyno: Shari’ah is a system of Islamic laws that makes no distinction between public and private life and that, when applied, encompasses all aspects of life. The danger of Eid’s proposal would arise if the American Muslims succeeded in setting up a religious court system that was the exclusive means of resolving disputes among Muslims, while insisting that the American judicial system had no right to intervene.

This would be a change in the current law – private arbitration judgments that require illegal actions are unenforceable – but is conceivable if American society ever reached a point of Balkanization where current institutions were perceived as feeble in the face of religiously-inspired violence. This benefit would not likely be limited to Islam. Conceivably, every ethnic enclave could insist that it has the right to educate and police its own members according to its own standards and conceptions of justice. This power would extend even over those who are unwilling to be bound by the enclave's norms but who have not yet reached the age of majority. Certainly, this would be bad.

Imagine a Shar’iah court system in America that insists that it has the exclusive right to resolve disputes between Muslim husbands and their wives, or one in which the youthful indiscretions of Muslim teenagers result in punishment for theft that is required by the Qur’an. Then go the next step and assume that this system is sanctioned American society, through a pre-arrangement not to interfere with the “internal” affairs of the American Muslim community. This is not obviously what Imam Eid is suggesting. He was careful to note that his proposal would be “within the scope of American law.”

However, the scope of American law is not immutable. Muslim civil rights organizations, since 9/11, have been active in promoting changes to the law to benefit their members, and have argued that such time-tested law enforcement tools as undercover operations and electronic surveillance should be off limits when targeting Muslims. Consider how Imam Eid himself seeks to justify his Shar’ia court proposal, in the abstract to his dissertation cited by Zeyno:

At present, Islamic organizations, mosques, and centers have jurisdiction over Islamic matters. Each of these organizations may react differently to these conflicts, create tensions among themselves, and become a source of confusion for Muslims. At the same time, the state’s involvement in matters that were, and for many still are, religious issues raises difficult legal problems as well as other issues concerning the relationship between religion and the state in America.

(emphasis added.)

It is conceivable that Eid is referring in his dissertation to the hard-line Islamic organizations which unnecessarily discourage it members from certain life activities because of their erroneous interpretation of the Muslim doctrine, and this is what he wants to change. If this were the case, however, why would he have included the emphasized sentence, complaining about state involvement in religious matters?

If Imam Eid and others believe that the U.S. should accept Shar’iah law and permit the resolution of private disputes to religious authorities without any oversight of the lawful authorities, we should be very worried. Some of us, after all, like the fact that we have a state that stands in the way of us being forced to act in accordance with others’ religious sensibilities, and we would rather keep it that way.

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