In European and American communities the principle of a secular law equally applied to everyone is today being challenged, if not yet under assault, by Muslim communities wanting to insert decisions made in Islamic sharia ["the path"] courts and tribunals into the normal , common-law, legal system.
The question has arisen of whether legal decisions based on cultural values at odds with democratic principles be accepted and incorporated into laws of democratic countries in the name of religious freedom.
A proposed amendment to the Constitution of Oklahoma, State Question 755, stating that, "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or sharia law," was blocked by an order of U.S. District Judge Vicki Miles-LaGrange. Her decision was upheld by the Federal 10th Circuit Court of Appeals in Denver on January 10, 2012.
Proponents of the amendment argue that only the federal and state laws of the U.S. should apply before the courts. Judge Miles-LaGrange, however, in issuing a preliminary injunction preventing implementation of the amendment, said that the amendment conveyed a message that the state favored one religion or belief over others. She argued it singled out sharia law,conveying a message of disapproval of the Muslim faith, and had the effect of inhibiting the Muslim religion. The Federal Court similarly held that the proposed amendment was discriminatory because it twice specifically mentioned sharia law.
A cardinal principle in democratic systems is that the same law applies to everyone in the society -- and that this law is secular. In European countries and in the United States, concepts of multiculturalism and cultural relativism have led many groups in the social fabric to assert their cultural heritage. In some cases, as in the arts and literature, the result has been an eloquent profusion of different heritages. In the political arena, however, the result has been more problematic, sometimes threatening the rights of freedom of expression and behavior as guaranteed by the First Amendment of the US Bill of Rights, "Congress shall make no law respecting the establishment of religion, or prohibiting the free expression thereof…."
Within the United States voluntary systems of rabbinical courts and American Indian tribal courts have existed for some time, but they have not intruded into the general legal system. The problem remains, however, as stated in 2008 by the Archbishop of Canterbury, to "what degree of accommodation the laws of the land can and will give to minority communities within their strongly entrenched legal and moral codes." The American philosopher John Rawls proposed a "comprehensive doctrine" by which reasonable people accept the existence of different beliefs about life and law, and do not impose their own doctrine on others who are equally willing to abide by this principle.
The answer given by the Oklahoma electorate, in trying to prevent the introduction of other systems of law, is that the secular state must have a monopoly of legal authority. Because the proposed amendment refers specifically to sharia law, it implies that Islamic values and law might be harmful to individual rights and the rule of law.
Ironically, if the proposed amendment had not twice mentioned sharia law, it might have been passed without effort.
The Supreme Court will have to face the constitutional question of whether the judicial branch of government can block or veto a decision of the people made in proper legal fashion -- the amendment of the Oklahoma Constitution was approved by 70 percent of the electorate in November 2010. But that question should not override the issue, already a significant one in European countries, especially in Britain, of whether Islamic sharia law is compatible with a democratic legal system, or can be integrated into it. Can the Islamic law applying to Muslims on issues of marriage, divorce, inheritance, and custody of children be accepted as part of the regular civil code?
This problem had already arisen in New Jersey. In August 2010, Judge Joseph Charles, a family court judge, refused to grant a restraining order to a woman who had been sexually abused by her Moroccan husband. The judge held that the man thought he had behaved according to his Muslim beliefs. His argument was that according to the Islamic religion the woman should submit completely to her husband's will, a submission which in this instance meant having sex whenever he desired, thus effectively accepting rape. The judge's decision was overruled by the Appellate Court of New Jersey, which held that the religious beliefs of the husband were irrelevant to the case and that assault was illegal. This ruling follows the well -known decision of the Supreme Court in Reynolds v. United States, 1878, that the claimed religious duty of a Mormon to engage in bigamy was not a defense against criminal indictment.
No doubt there are some myths and social stereotypes that have been articulated in the West, and may not be accurate representations about behavior and relationships in the Islamic world. Nevertheless, the starting point of objective analysis is that sharia law is not compatible with democratic law.
Sharia law, which regulates all aspects of Muslim communal and private life, is discriminatory against women and children, denying them rights that have been won over the last two centuries in democratic countries. Muslim women, treated as inferiors, are often not allowed to take advantage of the protection from discrimination or abuse provided by the secular courts. They are often pressured by their families to go to tribunals where the principles of Sharia law are applied. That law is implemented by councils, or arbitration tribunals, that operate on religious principles, derived from a number of sources: the Koran, the sayings and actions of Prophet Muhammad, Islamic jurisprudence, and rulings or fatwas issued by scholars. Can this law be compatible with that of law in states not constructed on a religious basis? Can decisions from those courts be considered part of the ordinary legal system?
It is difficult to envisage the compatibility of alternative legal systems with the law in democratic societies, particularly with an Islamic legal system that calls for the death penalty for apostasy, sexual "crimes" of women including adultery, and homosexuality. Women are handicapped on issues of marriage, divorce, inheritance, and child custody. A Muslim man is permitted to have four wives and can divorce one of them with ease, but women must follow a difficult path to obtain a divorce. At the worst,women can be stoned to death for sex outside marriage. Judgment in criminal cases can be harsh; thieves may be punished by amputation.
The cases in Oklahoma and New Jersey have paved the way for an important decision by the U.S. Supreme Court in the near future. Will it allow Muslim law to be used in civil cases relating to the Muslim community? Will the decisions of Sharia tribunals become legally binding? Or will the Supreme Court decide, as did the highest court in Britain, the Law Lords, when it ruled in a case involving a woman and custody of her child in 2008, that the Sharia law applied in that particular case was discriminatory and a violation of human rights?
It is not a manifestation of xenophobia or prejudice that the voters in Oklahoma acted on the belief that Muslim Sharia law is antithetical to democratic values. The courts and legislators in the United States must be conscious of a real and growing difficulty in our society.
Michael Curtis is Distinguished Professor Emeritus of Political Science at Rutgers University, and author of Should Israel Exist? A Sovereign Nation under attack by the International Community.