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Friday, August 5, 2011

The Anti-Shariah Movement

There is a growing movement afoot in the United States and Western Europe to arrest the perceived expansion of Islamic Law; also known as Shariah Law.  As the Anti-Shariah movement gains momentum here in the US, it is bumping up against the "free speech" clause of our First Amendment.

Sharia, the Islamic code that guides a Muslim's beliefs and conduct, is increasingly viewed by some legislators as a legal system that seeks world domination.  This fear has been attached to Islam for centuries.

The most vocal leader of the contemporary Anti-Shariah movement, David Yerushelmi, was profiled on the front page of last Sunday's NYT.  An attorney in New York and a Hasidic Jew, Mr. Yerushelmi has aligned himself with a phalanx of conservative think tanks while making a national mark as an expert on Shariah.  His recent accomplishments include drafting model Anti-Shariah legislation and filing lawsuits against the government that cite Shariah as, "one of the greatest threats to American freedom since the cold war," according to the NYT.

His warning is being echoed on the floor of statehouses throughout the country.  The actual extent of this perceived threat is highly debatable.

Should U.S. Courts ever defer to religious tribunals?  It happens more than you may realize. 

For example, the United States Court of Appeals for the Fifth Circuit in New Orleans upheld an arbitration award handed down by the Institute for Christian Conciliation.  Also, state courts have long upheld decisions made in Jewish courts known as a bet din.  Even Islamic courts, particularly in the area of family law, receive some "faith and credit" in state courts (if not full faith and credit).

 Particularly in the area of family law, there is an academic perception that religious women are often pressured by spouse and family into arbitrating in religious tribunals.  A problem arises when these tribunals then disregard principles of basic equity, fairness and even constitutional protections.

Recent state appellate decisions, one from New Jersey and one from Maryland, provide a fascinating insight into the issue of Shariah Law now confronting state court judges on an frequent basis.

Some state legislatures are drafting bills that would prohibit state court judges, particularly family court judges, from any consideration of the Shariah; all litigants would be bound by applicable state laws.

Perhaps this would be best.  We are, after all, in America, are we not?

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