Those “creeping sharia” fears

by Walter Olson on June 18, 2012

Steve Chapman puts them in perspective, and commenters at the conservative Town Hall site freak out. Then a donnybrook breaks out at National Review, with Matthew Schmitz, Ramesh Ponnuru and Schmitz again advancing the view that religious liberty means liberty for everyone, even Muslims who might wish (say) to enter contracts for a religiously grounded non-interest-yielding savings account.

Speaking of religious liberty, my discussion with Tim Carney and David Boaz last week about whether libertarians are somehow deficient on the topic continues to yield interesting reactions, including one from Rick Esenberg.

{ 10 comments }

1 Anonymous Attorney 06.18.12 at 3:07 pm

Granted, it’s more legislator posturing than anything else, but here’s where the divide between Conservatism, Inc. (and the Smarty-Pants Libertarian Auxiliary) and America’s traditional people comes into play. The former reacts calmly. The latter “freaks out.”

However slim the chance that a non-Muslim would be subjected to sharia law, it is still a fact that courts are spending an increasing amount of time dipping into it. On our dime, of course. And once upon a time, we didn’t have to pay for that.

That should make you mad. I’m far less concerned about the awkwardness of the anti-sharia attempts than I am about the blase attitude toward Western Disintegration shared by Chapman and NR’s useless gang.

2 Walter Olson 06.18.12 at 5:13 pm

“Smarty-Pants Libertarian Auxiliary.” Okay if I use that as a Service Mark [SM]?

And where is the evidence that the “courts are spending an increasing amount of time” adjudicating these exceedingly rare cases? We know that from the earliest days of the Republic courts have often seen fit to apply the internal rules of minority religious sects to resolve disputes between their members in at least some cases where there is evidence both sides of the dispute sought to be bound by those rules. By contrast, they have never to my knowledge adopted the view that minority religious sects are unwelcome and that their adherents should simply get out — much to the chagrin, it would seem, of some present-day nativists.

3 John Burgess 06.18.12 at 6:37 pm

I think some observers suffer from a recency effect or recency bias.

Certain information channels pound on the issue of Shariah law (with more heat than light) but they capture attention. Less visible is the 200-year history of US courts’ accommodation of religious contracts dealing with, say, Quakers, Mennonites, and Jews.

Compound it with fear and you can gin up legislative hysteria.

4 Peterk 06.18.12 at 7:21 pm

“We know that from the earliest days of the Republic courts have often seen fit to apply the internal rules of minority religious sects to resolve disputes between their members”
any citations to support your opinion?

5 Walter Olson 06.18.12 at 10:03 pm

Here is what one recent survey says about the law of property allocation on church schism. To summarize, from the early 19th century, most American courts were in line with British courts in attempting to defer to the doctrines of a particular sect in resolving who could keep its property after a split.

If you are seeking to convince yourself that early American courts never deferred to the internal doctrines of unpopular religious sects, you might also want to take a look at areas of law such as 1) attempted appeal to civil courts by dissatisfied litigants in ecclesiastical courts, and 2) employment disputes between clergy and the congregations that employ them.

6 Ken 06.19.12 at 12:48 am

Can’t be any worse than mandatory arbitration.

7 Howellis 06.19.12 at 8:01 am

Contracts are not offensive – if truly consensual – which for women in Islamic communities is not a given.

I’m more concerned about externality cases, where the American court bends over backwards to accommodate Islamic sensibilities, such as allowing loud muezzin calls at dawn, or excusing an assault on someone dressed as Mohammad in a Halloween parade.

8 Walter Olson 06.19.12 at 8:21 am

Howard> Very true, which is why virtually no one (and certainly not historic American courts) has taken the view that civil courts should defer to sectarian doctrine across the board, only sometimes (e.g., in a range of contractual situations where duress is absent and capacity is present). What is new and radical about today’s wave of “anti-sharia” legislation is that it purports to bar courts from *ever* respecting contract-makers’ wish to have disputes resolved according to religious doctrine. If applied across the board (banning deference to, e.g., Protestant intra-believer arbitration panels, Catholic canon law, and Jewish beit din), this impairs the liberty of all believers; if applied to Muslims only, this is an oppressive disfavoring of a single minority sect.

9 John Bratt 06.19.12 at 9:28 am

Just about every state court has family law cases in which the court has in some way deferred to a religious rule in decision-making. The best example are the many divorce cases dealing with the decisions of a bet din. The commenter who described these anti-sharia laws as generating more heat than light is dead-on.

10 Anonymous Attorney 06.19.12 at 4:16 pm

On how much time, exactly, courts are spending on sharia, I’d agree it’s surely small — but I’ll wager it’s more between 1999 and today and for the entirety of American history prior to that point.

Here’s one group’s list:

http://shariahinamericancourts.com/?page_id=305

It’s also not completely dismissable that “sharia values” — and I confess not being conversant — COULD leak into the common law. A divorce case might serve as precedent for another, without anyone noticing that the original case was decided with reference to sharia law.

A Nation writer concedes that in one New Jersey case, “sharia” did rule the day — until an appellate court overturned it.

http://www.thenation.com/article/168378/true-story-sharia-american-courts#

The difference between Muslims on the one hand and Quakers, Jews and Mennonites on the other is: 1) the latter have been here for a long time — Quakers and Jews long before there was an America and 2) none of these groups have launched terrorist attacks against America on our own soil. So, it’s a dignity thing. If an Israeli court declined to spend time hashing through the competing values in a neo-Nazi divorce (“wife feels husband is insufficiently anti-Semitic”), would anyone wring their hands?

The real immediate solution — short of the dreaded nativists’ desire for Muslims to get out — is a corps of sober judges who will not render decisions that 1) have even the slightest possibility of imposing sharia on the rest of us and 2) fully favor the Constitution and established common law over Islamic sensibilities. In other words, when it’s Zombie Muhammad and the First Amendment vs. Angered Muslim and Multiculti Mushiness, Zombie Muhammad wins.

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