Much of the recent fuss about “creeping Shari’a” in some circles, including the recent referendum on State Question No. 755, the “Save Our State Amendment” to the Oklahoma Constitution, points to a decision that was handed down in a New Jersey trial court last spring. The case features descriptions of particularly egregious domestic abuse. The trial court decision in favor of the husband was subsequently reversed on appeal.
As constitutional law scholar, Garrett Epps describes it the Oklahoma response to the New Jersey decision:
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Proponents of 755 say the danger really is imminent. They point to a New Jersey case called S.D. v. M.J.R. In that case, a trial judge refused to issue a restraining order against a Moroccan husband who had repeatedly raped his wife. The judge decided that the man “was operating under his belief that it is, as the husband, his desire to have sex when and whether we wanted to, was something that was consistent with his practices.” Thus, the husband lacked “criminal intent.”
The Appellate Division of the New Jersey Superior Court reversed the decision. It applied Supreme Court precedents showing that religious belief of any kind does not excuse a defendant from obeying “neutral, generally applicable” laws. The court said that the trial judge “determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.” Case closed.
So here’s the danger: a boneheaded decision by a local judge in another state, which was reversed exactly the way it should have been–by the appellate court. Hardly a mortal threat to the nation–and nothing less would justify suspending the Constitution’s guarantees of religious freedom.
Epps is joined in his condemnation of the proposed Oklahoma law by fellow legal scholar, Michael Helfand, who in rejecting the law also points the reality of limited accommodation of religious law in America in the form of religious arbitration tribunals to which parties can voluntarily appeal. As he observes:
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Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: “Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get Sharia law into courts. There … have been some efforts, I believe, to explore bringing that to America, and it’s dangerous.”
In reality, such arbitration is well established. For nearly half a century, Jewish, Christian and Muslim tribunals have operated in the United States in concert with government courts. These tribunals preside over matters of religious ritual and also apply religious law to a wide range of disputes between individuals and even commercial entities. Parties, in keeping with shared beliefs and values, can voluntarily agree to submit employment, divorce, contractual and various other types of disputes for resolution. State and federal courts currently treat such religious tribunals as they do all other arbitration panels that litigants can seek out as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, government courts routinely “confirm” them — that is, render them legally enforceable.
So the reality of “juridical pluralism” of religious and legal norms is not without precedent–or practice–in these United States. Something to keep in mind in considering Shari’a, family, and democracy in Nigeria–and beyond.
