Muneer Awad, who filed the lawsuit against Oklahoma’s attempted ban on sharia law, says that he thinks judges can and should follow directives like those in his will - to “look to Islamic precepts in situations where Awad’s wishes aren’t clear.”
Awad believes initiatives like the one passed by more than 70 percent of Oklahomans -- but denied effect by the 10th Circuit Court of Appeals -- to prohibit judges from citing sharia, or foreign, law as authoritative would bar judges from discerning Islamic religiously-inspired contract and estate instructions. Awad is wrong. He is incorrect in thinking that judges can currently determine a person's last will and "wishes" by referring to religious precepts.
Judges are already prohibited from deciphering religious issues by the First Amendment to the United States Constitution. The often misunderstood “wall” that is thought to separate church and state really does block judges from entering the religious realm. Judges may not interpret matters of religious practice and must only apply “neutral principles of law.” The Supreme Court has consistently reinforced its hands-off approach to doctrinal matters believing that courts are ill-equipped to deal with such decisions. Awad, if you leave gaps in your will for a judge to fill according to Islamic tenets, you will be sadly disappointed. Accordingly, so would a Jew or Christian be denied judicial opinion on matters of religious practice.
All of this illustrates the exact problem with sharia and why it is offensive to American traditions. Sharia adherents observe no barricade between mosque and state. Doctrinally dictated sharia rules govern every aspect of a pious Muslim’s life from personal, familial, financial, marital, to civic affairs. Thus, it is not surprising that a sharia-adherent Muslim would expect a legal tribunal to complete gaps in a marital agreement, a contract, or a will. Americans are certainly free to conduct their affairs according to religious motivations but they know not to ask the courts to supply missing articles of faith.
As Americans have consented to be governed according to the rule of citizen-inspired and legislatively-adopted law, it is not surprising that there is a clash with those that would impose dogmatic law dictated by clerics. Oklahomans were correct in their concern; they just turned to the wrong branch of government to protect the culture.
The Tenth Circuit acted according to current Establishment Clause precedent in affirming the hold on the so-called Oklahoma Anti-Sharia Amendment. American courts have determined that government may not take action that singles out a particular religion or creed in a discriminatory fashion. A more generically worded initiative called American Law for American Courts may fare better with wording that simply denies as authority all sources of foreign law when in tension with American law or constitutional protections.
After recently completing a study of American family law cases, I would suggest that it is most important for state legislators to consider adopting clear statutes that would provide standards for secular licensing of marriages, enunciation of prenuptial agreements, and registration of marriages officials.
Again, religious ceremonies and solemnizations may certainly take place outside the civic realm, but when parties present themselves before a judge and ask to have a marriage dissolved or dispute resolved, judges must to be able to define the relationship and the expectation of the parties according to “neutral principles of law.”
The painful lesson learned from Great Britain and Europe is that surrendering authority to adjudicate family law matters to sharia courts or shadow sharia tribunals is just the first step to accepting a subculture that is contrary to democratic values. British MP, Philip Davies observes that “[these courts] do entrench division in society, and do nothing to entrench integration or community cohesion. It leads to a segregated society.” House of Lords member Hope says that “there is no place in [sharia law] for equal rights between men and women."
While American law and founding traditions protect both individuals and groups, they are based upon a vigorous defense of individual liberty. The rule of law that was established as a bulwark between the citizen and oppressive groups – and the individual and tyrannical government – does not make exceptions for activist groups that demand exceptional treatment.