Oklahomans have a plan to save the country. It doesn’t address the reverberations of the financial crisis or outline a way to pay for social services on a limited budget. Instead, they’ve fashioned a “preemptive strike” against Islamic law in the United States. Last week, 70% of Oklahoma’s electorate approved this amendment to the state’s Constitution: “The [Oklahoma] Courts … when exercising their judicial authority … shall not consider international law or Sharia Law.”
Oklahoma isn’t alone. Arizona is considering a bill that would prohibit state judges from “rely[ing] on any body of religious sectarian law or foreign law,” and a similar bill has just been introduced in the South Carolina Legislature. Whether more states will hop on the bandwagon may depend on the outcome of a lawsuit filed in Oklahoma federal district court that contends that the amendment violates the 1st Amendment. But the amendment is not just of dubious constitutionality; it’s dangerous and unnecessary on the merits.
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.
To some, the prospect that the “Save Our State” amendment could challenge this process would be a positive development. In fact, if we were to buy into some of the characterizations propounded by some pundits and politicians, we might think that religious arbitration could force U.S. courts to allow dismemberment or stoning as a form of punishment. But if the awards of religious tribunals are to be enforced in court, the hearings must comply with various procedural requirements, the arbitration agreements cannot be unconscionable, and the awards cannot contravene state and federal laws. Indeed, under the aptly titled “public policy exception,” courts cannot enforce any arbitration award, including one issued by a religious tribunal, that undermines U.S. public policies.
For example, parties before a religious tribunal have a right to an attorney that cannot be waived. The tribunal must give notice to the parties regarding all hearings. And it must accept all relevant evidence and allow parties to cross-examine witnesses.
When it comes to the decisions themselves, just as a court cannot enforce a contract to hire a hit man, a court cannot enforce an arbitration award that requires something such as stoning or caning. Nor could a court confirm a religious tribunal’s child custody decision without making its own independent determination as to what was in the best interests of the child. In the words of a New York court, “An arbitration award that deprives a party of a constitutional right to seek redress or protection in a civil or criminal matter is against public policy.”
But that alone isn’t a reason to maintain the tradition of religious arbitration. This form of justice sometimes provides legal redress that the state and federal courts cannot.
Consider a case in which a pastor, imam or rabbi is given a lifetime contract (a relatively common practice) that allows his or her congregation to terminate his or her employment only for cause. Somewhere down the line, the congregation decides that its religious leader is no longer doing the job. Accordingly, the congregation terminates the contract. But the pastor, imam or rabbi might very well disagree that there was cause for the dismissal. Where does he or she go to bring that claim?
The answer is not in state or federal court. The establishment clause of the 1st Amendment prohibits government courts from rendering a view regarding religious doctrine. And deciding what the appropriate responsibilities of a pastor or imam or rabbi are, and whether they have been fulfilled, would generally amount to rendering such a view. As a result, the court could only dismiss the case. However, the pastor, imam or rabbi could turn to a religious tribunal, and a U.S. court could later confirm the decision and give it legal force.
Legislation banning religious arbitration is deeply misguided. The decisions of religious tribunals are unenforceable unless they comply with public policy. And we need them to address cases that constitutional doctrine prohibits from being litigated in government courts. In the end, allowing state and federal courts to “consider” the findings of religious tribunals for the purposes of “confirmation” doesn’t violate cherished religious freedoms, it enhances them.
Laws like Oklahoma’s “Save Our State” amendment pander to unfounded fears. Instead of saving the nation, they merely add to its list of problems.
Michael A. Helfand is an associate professor of law at Pepperdine University and associate director of the university’s Glazer Institute for Jewish Studies.