Religious Laws Long Recognized By U.S. Courts Oklahoma State Rep. Rex Duncan has proposed a state constitutional amendment to bar U.S. judges from considering any foreign law, including Islamic law, in their decisions. But U.S. laws already allow for some consideration, and experts say U.S. law will always have the final word.
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Religious Laws Long Recognized By U.S. Courts

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Religious Laws Long Recognized By U.S. Courts


Religious Laws Long Recognized By U.S. Courts

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Opponents of the project have expanded their rhetoric far beyond one building in Lower Manhattan. Newt Gingrich, for example, has said radical Muslims plan to impose Islamic law, known as Shariah, on American citizens.

As NPRs Barbara Bradley Hagerty reports, U.S. courts already at times recognize Shariah law.

BARBARA BRADLEY HAGERTY: Rex Duncan agrees with those who say that Shariah is creeping into U.S. courts.

State Representative REX DUNCAN (Republican, Oklahoma): Creeping is an understatement. Its more like a barrage.

HAGERTY: Duncan, a state legislator in Oklahoma, says hes alarmed that some banks have changed their lending rules to accommodate Islams prohibition on paying interest. He also cites a recent case in New Jersey, in which a judge refused to give a wife a protective order after her husband repeatedly beat and raped her, because the judge said he must defer to Islamic law. That decision was overturned by an appellate court, but Duncan wants to make sure that never happens again.

St. Rep. DUNCAN: Any encroachment on the rule of law is unacceptable. And at some point there will be an outcry from the states that the rule of law be protected and we will say no to Shariah law.

HAGERTY: Duncan has proposed a state constitutional amendment that would bar U.S. judges from considering Shariah or any foreign law. But that may be problematic. U.S. courts already recognize and enforce Shariah in everything from commercial contracts to divorce settlements, to wills and estates.

Marc Stern, a religion law expert at the American Jewish Committee, says thats no different from how religious laws and customs are already applied.

Mr. MARC STERN (Associate General Counsel, American Jewish Committee): And just as the Catholic Church, they didnt take over law when large numbers of Catholics came to the United States, and Jewish law doesnt govern Jewish citizens, Shariah law is not going to govern, except voluntarily, the rights and responsibilities of Muslim citizens in the United States.

HAGERTY: Stern says when theres a conflict, U.S. law always wins. For example, when Orthodox Jews have asked judges to enforce their laws on divorce, the courts refused to do it because they wont be involved in interpreting religion. In the same way, the government wont enforce kosher food standards because it would violate the separation of church and state.

Stern says courts will honor agreements made under religious law, but not if they are grossly unfair. In Maryland, for example, a Muslim husband tried to give his wife almost nothing when they divorced, citing Islamic law.

Mr. STERN: And in very sharp terms, the Maryland court said this violates our fundamental sense of fairness and our fundamental commitment to equality of women, and were not going to allow you void that by reference to Islamic law.

HAGERTY: This is particularly true with criminal acts. Stern notes that in the marital rape case in New Jersey, the appeals court called the lower courts decision deeply flawed, proving the point that courts will not allow Shariah law to trump state law.

But Ali Khan, a professor at Washburn University, does see a scenario where non-Muslims could be governed by Islamic law.

Professor ALI KHAN (Law and Human Rights, Washburn University School of Law): Right now, Islam is expanding in the United States. Now suppose that Muslims become a majority in a particular state, I think then the state laws would reflect Islamic law.

HAGERTY: He notes that the heavily Muslim city of Dearborn, Michigan, passed an ordinance that allows the call to prayer to be broadcast over loudspeakers. Khan believes that the rapid growth of American Islam means that more towns will enact laws friendly to the religion. For example, banning alcohol or gambling. Of course, Christians have already done that, in some cases creating dry counties or passing blue laws that prohibit shopping on Sunday.

But religious accommodation can only go so far, says Clark Lombardi, a Shariah law expert at the University of Washington. He says even if an entire state converted to a Taliban-esque version of Islam, the courts would not allow it to force women to wear veils, for example. That would violate their First Amendment rights.

Professor CLARK LOMBARDI (University of Washington Law School): So were not going to see hand chopping off, were not going to see retaliatory violence, were not going to see underage marriages, were not going to see polygamous marriages. The U.S. courts simply wouldnt do it. Its contrary to public policy, and they would refuse to apply that particular foreign law.

HAGERTY: In the meantime, Oklahoma legislator Rex Duncan says Americans shouldnt take any chances. And he expects his amendment to bar Shariah law to pass easily.

Barbara Bradley Hagerty, NPR News.

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