Bench Memos

A Solution in Search of a Problem

Over at The Corner, there has been some discussion of Matthew Schmitz’s article from Wednesday titled “Fears of ‘Creeping Sharia.’”  Among those weighing in have been Andrew Bostom, Andy McCarthy (passing on something by David Yerushalmi), and Ramesh Ponnuru, while Mr. Schmitz has ably defended himself. (No, dear reader, I don’t think I can supply you with all the links. You know how to use this interweb thingy.)

I am squarely with Matt Schmitz and Ramesh on this one.  This “creeping Sharia” phenomenon supposedly going on in American courts is not even happening, even according to the “report” most cited by the notion’s proponents.  In May 2011, the Center for Security Policy published a 635-page report titled “Shariah Law and American State Courts.”  Most of the document is devoted to reproducing reported cases.  With much hoopla, the authors announce that at least 50 cases in American state courts demonstrate the “creeping Sharia” problem.

But helpfully–for their critics, not for themselves–the authors give a precis at the front of the report of their “Top 20 Cases” that should alarm us.  The decisions in question range from the late 1970s to the 2000s.  And it turns out that, on their own analysis, we can conclude that just seven–yes, seven–of their “Top 20 Cases” were decisions in which Sharia (or other foreign) principles were enforced in any way whatsoever.

In one 1996 case, “comity” was extended to a Pakistani court’s child custody ruling.  In a 1978 case, a Pakistani divorce was recognized in an American court.  In a third case, in 1984, “Syrian Christian law” principles were recognized in a state court.  In a fourth case in 2004, a contract in which the parties in a business together had agreed to “Islamic arbitration” was honored.  In a fifth, a 1986 California ruling upheld a “Lebanese Sharia” court’s child custody order. In the sixth (my favorite), two American companies were able to take advantage of a Saudi counterpart by employing Saudi legal principles in a Delaware court.  And in the seventh (or maybe this one’s my favorite), a wife who was done wrong was able to take advantage of a Sharia-principle prenuptial agreement when she divorced her husband in America.

That’s all there is to the Center for Security Policy’s “Top 20 Cases.”  Thirty-five years’ worth of American law, and we have a whopping seven cases in which some “foreign law” was honored (not even Sharia in every case), and not enough information even to tell if something truly unjust happened in any of the seven.  In the other thirteen cases, Sharia-law principles were rejected either at trial or on appeal.  Some Top 20.

I can’t get worked up about a problem that is so unproblematic.  I can take alarm at ill-considered attacks on the religious freedom of our Muslim fellow citizens, however.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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