Two recent legal cases in North America highlight the issue of where the line should be drawn in regards to Islamic (sharia) law in non-Muslim countries. The cases point not only how the courts should handle sharia law, but any foreign or religious law that intersects with a Western country’s legal system.
A Minnesota court of appeals recently ruled on an inheritance case involving the widow of a Muslim man who was killed in an accident in Minnesota. The estate of the man filed a wrongful-death claim resulting in a settlement of $183,000.
Since the husband left no will, according to Minnesota law, the man’s widow was entitled to the entire amount. However, the man’s brother claimed the money should be split according to sharia law practiced in Sudan (where the couple was married), which would have amounted to the widow inheriting only 25 percent of the money with other family members inheriting the remainder.
The Minnesota court ruled against the man’s brother based, according to UCLA law professor Eugene Volokh, on the legal principle that “American courts apply American law, rather than one rule for Muslims, one rule for Christians, one rule for Jews, and so on.”
But just to note: American law is not always that simple. It provides for the freedom to make contracts and bequeath property based one’s beliefs, values and desires. However, as Volokh explains, not all those contracts may be enforceable, for example, when the conditions of the contract violate other superseding American public policy — for example, discriminating based on sex, a punishment disallowed in America, like cutting off a person’s hand, etc.
In those cases, the court will refuse to enforce the contract as it would be invalid in America, which seems to bring us, full circle to the principle that “American courts apply American law, including when an American law principle calls on American courts to enforce a foreign judgment,” Volokh says.
A second case in Montreal, Canada highlights the discrimination and arbitrariness of individual judge’s whim where laws governing religion and state are not clearly spelled out.
The case involved a Muslim woman, Rania El-Alloul, who appeared before the court (representing herself) to apply for the return of her car which had been seized when her son was arrested while driving the car with a suspended license.
Judge Eliana Marengo refused to hear the case unless the Muslim woman removed her hijab. Marengo told El-Alloul, "The courtroom is a secular place and you are not suitably dressed. Hats and sunglasses, for example, are not allowed and I don’t see why scarves on the head would be either.
“The same rules need to be applied to everyone. I will therefore not hear you if you are wearing a scarf on your head, just as I would not allow a person to appear before me wearing a hat or sunglasses on his or her head, or any other garment not suitable for a court proceeding.”
Reporting the incident, the Express, a UK newspaper, explains, “Quebec justice department officials said there was no specific ban on wearing religious items in court but the regulations insisted on decorum and being suitably dressed. Legal experts said the judge is sovereign in her decisions in her courtroom.”
According to the Canadian Charter of Rights and Freedoms, all people in Canada (even those who are not citizens) are entitled to “fundamental freedoms” including freedom of religion.
Indeed, many Muslim women lawyers litigating in Canada appear in court wearing their hijabs while representing their clients – a testament to the fact that a hijab is not a disrespectful mode of dress for a Canadian courtroom, but rather an item worn out of religious principles.
Writing in the The Star, Amna Qureshi, a Muslim woman lawyer in Canada who wears a hijab, notes that the chief justice of Canada recently ruled that a secular approach that requires people “to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.”
Quershi rightly notes, “Judge Marengo failed to appreciate this.”
There are those who view any accommodation of sharia law into Western countries as part and parcel of a plan of “stealth jihad.” Yet, these two cases show that nuance is crucial to making these pronouncements.
In the case of American law, checks and balances were placed in the law itself that allow for freedom of religion while upholding the ultimate standard of the “law of the land,” i.e. American law.
In the case of the Canadian judge, a serious and arbitrary breach of religious freedom was committed that threatens the rule of law. “If Judge Marengo’s reasoning were to hold up, it would necessarily mean that Jewish men could not enter our courts wearing kippas, that Sikh men and women could not enter courts with turbans, that Christian men and woman could not wear crosses and so on,” writes Querishi.
Integration of Muslims in the West does not happen in a prejudiced environment. In fact, it is more likely that the opposite – radicalization and isolation – will be bred in such an atmosphere.
Meira Svirsky is the editor of ClarionProject.org