Et tu, Minnesota?

As the controversy continues to rage around the Archbishop of Canterbury’s comments about Islamic law (Michelle Malkin predictably calls him the Archbishop of Dhimmitude), it’s worthwhile checking out the reaction of Australia’s own Bill Muelenberg former vice-president of the Australian Family Association. Muelenberg is also concerned by the Archbishop’s comments, accusing him of promoting Dhimmitude and effectively calling for an Islamic theocracy to be established in Britain. He concludes:

In sum, the calls by the Archbishop to at least consider having some aspects of sharia law implemented in the UK are appallingly foolish. They are both undemocratic and unchristian. The Archbishop is effectively renouncing the Christian heritage of the UK, and calling for its replacement by Islam. Interfaith dialogue is one thing, but putting up the white flag of surrender is quite another. Dr Williams really needs to determine if he is representing the Christian faith, or the faith of Islam. And he needs to decide whether he thinks a democracy is preferable to an Islamic theocracy

However, if recognising elements of shariah law is waving the white flag of surrender, we are sorry to advise Malkin and Muehlenberg that the United States waved it a long time ago.

We refer, of course, to the fact that the US courts have recognised Islamic law as a legitimate and appropriate mechanism for resolving contractual disputes. In this case, for example, the court recognised the validity of shariah-based arbitration in a dispute over a business partnership. The contract between the two parties had an arbitration clause which read:

Any dispute, controversy or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach hereof shall, upon the request of any party involved, be submitted to and settled by arbitration before the Arbitration Court of an Islamic Mosque located in the State of Minnesota pursuant to the laws of Islam (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or Federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence, and counsel.

The parties fell into dispute and sought arbitration by the Islamic Arbitration Court. The Court made a ruling and one of the parties then went to the secular court to contest that judgement. The court subsequently ruled:

The district court properly confirmed the arbitration award under Minn. Stat., ch. 572.

Et tu, State of Minnesota?

Likewise, US courts have also recognised shariah-based arbitration in family disputes. For example, this case heard by the Texan Court of Appeals.

Despite this, neither Minnesota or Texas are, as far as we can tell, Islamic theocracies.

5 comments ↓

#1 muslimmatters.org » FOX’s Struggle, War Against Terrorism & Shariah in UK (3 Updates) on 02.15.08 at 4:14 am

[...] [Update 3] Austrolabe brings Shariah home to America: Et tu, Minnesota? [...]

#2 Kashmiri Nomad on 02.18.08 at 12:34 am

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Austrolabe on Sharia arbitration in American courts.

#3 James on 02.18.08 at 12:50 pm

Interesting, but Minnesota and Texas are only two states out of a union of 50 states. In the Minnesota example this was contract law / resolution. At first both sides agreed to what was essentially binding arbitration by the Sharia authorities. When one lost, they went crying to the civil authorities. The civil authorities then said ” sorry Charlie you can’t back out of a previous agreement on a competent arbitration authority.” So what the state recognized was the validity of the previous agreement not the Sharia court itself per se. From a first Amendment perspective this is more of a freedom of religion issue. As the Supremes have not weighed in on this yet you are definitely jumping on the gun as far as “acceptance” is concerned. There is still the “No establishment” clause to think of. The Supremes may still invalidate the Sharia court- enforcing the ideas of the non-establishment clause and the supremacy of the civil authorities in certain fields. Plus there is also the equal protection clause of the Constitution to think of also. Sharia law might get tossed due to excess leniency or excess stringency or just because five of the Justices want to be Islamophobes.

This is not to say that Sharia principals can not fit into common law or that the non-establishment clause make Sharia law a total no-go. But there are definite limits. I don’t see any state in the union allowing a Sharia court usurping its authority in divorce/family court. The civil authorities are still going to monopolize that function mainly for equal protection reasons.

Good luck telling child protective services or the woman’s shelter that you have a right via the Koran to beat your wife/ child senseless. Yes I know that the Koran says no such thing; but the civil authorities don’t care what the Koran or Bible, or Tao De Jing say about such matters. What they care about is what the local laws say about such things. You can quote Haddiths and Fiqh till you are blue in the face- the state still has the final say on whether you are Married or not and how many people you can be Married to at any one time. In the US that would be the individual states of the Union.

England being England; they have every right to investigate accommodating the Ummah and its laws. In the USA there is the small matter of both the Individual States Constitutions and the Federal Constitution that seem to be a high walls against such accommodation. Muslims should think twice, thrice and a few more times about fiddling with these protections. Right now they are the only thing between the your Masjids and the wrecking ball in some of the more backwards neighborhoods of the USA.

#4 Amir on 02.18.08 at 6:08 pm

There is still the “No establishment” clause to think of.

The establishment clause would only prevent government establishing a national religion or giving preference to one religion over another. It would prevent the government from establishing Islamic or other religious courts, but I don’t see how it would prevent private individuals from establishing their own arbitration organisations provided their authority is only derived from the consent of the participants and not from statute or presidential decree.

In other words, the establishment clause is about limiting the actions of the state, not limiting the actions of the citizenry.

#5 rahma on 02.19.08 at 2:25 am

Huh. Imagine that. I live in Minnesota, became a paralegal here, and somehow did not come up with that case when I had free westlaw access and was attempting to write about the validity of a nikkah contract in minnesota courts. Maybe it’s time to revist that paper for an update.

Added to the growing list of why Minnesota is an awesome state: kick butt public radio, Keith Ellison and Sharia arbitration.

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