Seems that my thoughts yesterday about the potential for a U.S. court to enforce Islamic law were shared by Prof. Eugene Volokh. It was, I thought, one of my more thought-provoking finds recently. Prof. Volokh, however, has considerably more research tools (and, I’m quite sure, skill) and he found three instances of U.S. courts enforcing arbitration agreements in which the parties had agreed to apply Sharia law and have the dispute heard before a Muslim arbitrator. The first, in Texas, applied Sharia principles to a family law dispute. The second, in Minnesota, distributed a small business according to the decisions of a Muslim court. The third, in New Jersey, I haven’t found a link to and haven’t read.
In both of the cases that I read, the courts asked to affirm the decisions of the Muslim religious arbitrators did not spend any appreciable time or effort attempting to determine whether the Sharia law applied was fundamentally fair or legitimate. Nor were any public interest kinds of concerns a factor. With respect to the distribution of the small business, that may well have been appropriate. But since the child custody dispute in Texas involved the welfare of the children of the divorcing couple, that would seem to have some public interest issues that I think a court ought not to simply delegate to an arbitrator, whether the arbitrator is religious or not. (Perhaps Texas law does not concern itself with the welfare of the child in a child custody dispute; I am neither a family lawyer nor versed in Texas law enough to know for sure.)
The courts in these case seem to be saying to the litigants, “Hey, you picked this as the way to resolve your disputes and now you have to live with the results. If you don’t want to have religious courts enforce their decisions, don’t agree to submit your decisions to them.” This is a defensible position, and perhaps the concerns I have raised would be more timely addressed should a party resist submitting the dispute to religious arbitration in the first place rather than on appeal from an adverse decision, once reached.
But what I had feared seems to be indicated by these opinions — they are purely procedural in nature, and concerned with matters like the voluntariness of the parties entering into the agreement and the court’s jurisdiction over the agreement, rather than 1) the substantive fairness of the arbitration mechanism, 2) the effect on the public interest of enforcing religiously-derived agreements; or 3) whether doing so constitutes an (indirect, perhaps) establishment of these religious tribunals as courts exercising government power. Maybe my concerns are ultimately less important than the need to provide for and allow people the ability to enter into arbitration agreements of any nature and thus relieve the burden on the courts, and there are lots of reasons why people might choose to have their disputes resolved along religious lines rather than in the regular courts.
