The American system of government based upon law, not clerical dictate, should provide predictable enforcement of the statutes passed by representative legislators. It is true that religious marital arrangements of many varieties are permissible in the United States, but if divorce issues land the parties in court, then state law, contract rules, and constitutional provisions should apply. Muslims who insist upon living according to a counter set of doctrinal codes should not expect the courts to respect an arrangement that ignores American civil requirements from the first elements of contract-creation and marriage-registration to divorce-notices and process-procedures.
Even leading sharia advocate and attorney Abed Awad admits that “many [Muslim husbands] intentionally marry without a marriage license purposefully to circumvent the applicability of New Jersey divorce and equitable-distribution laws.” However, he argues for greater accommodation of Muslim deviations from civil requirements rather than for more conformity to state family laws.
Currently there is a curb against judicial rubber-stamping of customs which are in conflict with American standards. Judges are expected to apply a test designed to guide them in excluding case components that would be “injurious to the interests of the public, contravene some established interest of society, violate some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time.”
What is considered sound public policy, however, varies by state and some judges have rationalized around this test to accommodate — erroneously — Sharia traditions as religious custom.
Several states, most recently Kansas, have adopted initiatives based upon the model American Law for American Courts legislation. Like the One Law for All measures being debated in some European countries, this would reinforce important public policy declaratives by emphasizing the transcendence of constitutional mandates for due process and equal rights in all cases.
As political activist Muslim groups in America agitate for even more special considerations of Sharia practices, it is imperative that Americans define and defend foundational and inalienable natural rights. Any single initiative or statement will not address the political, sociological and legal scope of this challenge, but all are worthy of public debate and many should be practical parts of the solution that Americans must provide.
Originally published by the Gatestone Institute.