About Those “Creeping Sharia” Fears

If you’ve wondered about charges of “creeping sharia” in American law, you really should read this week’s series of blog posts by Eugene Volokh based on an Oklahoma Law Review article. (Oklahoma is the state whose legislators passed a law banning the use of Islamic sharia and other religious law in courts, struck down by the Tenth Circuit as unconstitutional because of its specific proscription of the law of one religion as against others.) Included are installments on the courts’ enforcement of contracts, wills, and similar instruments that would call on courts to interpret Islamic law or that are motivated by desire to conform to such law; instances where American courts use foreign law that itself incorporates religious law; instances where devout Muslims claim broadly available religious exemptions from generally applicable laws or work rules; and provision in government services of accommodations that benefit devoutly Muslim customers, employees, students, or clients. Summary passage, footnotes omitted:

In many of the instances that critics see as improper “creeping sharia,” I will argue, it is longstanding American law that calls for recognizing or implementing an individual’s religious principles, including Islamic principles. American law provides for freedom of contract and disposition of property at death. Muslims (like Christians, Jews, and the irreligious) can therefore write contracts and wills to implement their understanding of their religious obligations. American law provides for arbitration with parties’ consent. Muslims can use this to route their disputes to Muslim tribunals, just like Christians, Jews and the irreligious often route their disputes to private arbitrators of their choice.

American law provides for religious exemptions from generally applicable laws and from employer regulations. Muslims, as well as Christians, Jews, and others, may claim such exemptions. American law provides for the use of foreign law in certain cases stemming from foreign occurrences (marriages, divorces, injuries and the like). Sometimes this calls for the use of foreign religious law, whether Islamic law, Jewish law, or the decisions of Christian tribunals.

Of course, American law also imposes limiting principles on these doctrines. Some contracts and foreign judgments are unenforceable. Many religious exemption requests are denied. But these limiting principles, I argue below, already adequately prevent improper recognition of Islamic law and allow recognition of such law when recognition is proper. There is no need for new law here.

…[My approach] urges courts to continue following well-established American legal traditions rather than distorting those traditions either in favor of Islam or against.

Last month, Prof. Volokh published a series of posts, likewise based on a law review article, on the closely related issue of the reception of foreign law generally in American courts.