February 9, 2008

What A Surprise: A Headline In The Fish Wrapper Doesn't Accurately Describe The Article's Importance

Rowan Williams, the Archbishop of Canterbury and the equivalent of the Pope for the Church of England, says that the adoption of Islamic Sharia law in the United Kingdom is "inevitable."

This seems like the best we could hope for would be a failed joke on his part -- but it both isn't and it also is less cause for alarm than you might think. Still, it's an attention-grabbing headline -- the Archbishop of Canterbury stating that it's "inevitable" that Sharia law apply in the UK. It leaves you at once horrified that the spectre of a Taliban-like legal regime would take hold there, and saddened that so powerful a culture and legal tradition would erode so quickly in the face of less than one generation of immigration. It makes you fear for what could happen in the USA.

But hold on a second. Let's take a look at what Archbishop Williams actually said:

[Williams] stepped into the Sharia debate with open eyes in a widely publicized lecture Thursday night at the Royal Courts of Justice, and a lengthy interview with the BBC, in which he argued that the traditions of other religious communities often have a foothold in law, while Muslims may be forced into conflict between their traditions and the law of the land.

"If what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable," he said in his speech before about 1,000 people, mostly lawyers.

"We have Orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud," he said.

"It's not a new problem, not to mention the questions . . . about how the consciences of Catholics, Anglicans and others who have difficulty over issues like abortion are accommodated within the law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community, that's already there."

This is still kind of remarkable, but a far cry from the grand old traditions of Parliament and democracy being supplanted by national supplication to the seventh-century cultural traditions of Arabia -- and it requires some independent knowledge beyond even that. One thing that the Fish Wrapper article never reminds the reader of is that the UK does not have the tradition of separation of church and state that we do here. Quite contrary to our Constitutional prohibition against the establishment of a state religion, I think that the Anglican Church is still the state religion of the UK -- a Catholic cannot be King, to this day.

So, when there are issues that people prefer to resolve within the context of their religious traditions, in a country without something like America's First Amendment, there is no impediment to establishing a religious court and using the traditions and rules of that religion to settle the dispute. Things like divorce, child custody after the death of parents, allocation of property, tithing. Those can be enforced because all the people involved voluntarily submit to the religion and its dispute-resolution procedures -- in America, we would call this arbitration and we don't have any problem at all with enforcing private arbitration agreements. See my last two paragraphs, though, for some thoughts about this concept's application in the United States.

So, since there are Talmudic courts that resolve issues for the Jewish community in the UK (mainly in England, as I understand it) that means that the law has allowed for the creation of official judicial bodies that enforce these rules, within these communities. You can opt out of the community and its religious dispute resolution procedures at will, and then only the general civil and criminal laws of the UK would apply to you; the religious court would have no power over you whatsoever. But, if the Jewish community gets to have its own courts to supplement the regular courts, then that opportunity must logically be extended to any religion with its own legal code, and Islam is such a religion.

Read a few paragraphs further in the article, and note further that this sort of religious quasi-arbitration may not contradict the civil laws of general application of the United Kingdom. So, Sharia's requirement that a woman who has had sexual relations outside of marriage could not be stoned to death in a UK Sharia court; although she could be fined.

So it's not quite what it looks like at first glance. Sigh. Count on the Fish Wrapper to raise my blood pressure unnecessarily, and to bury context deep down in the article.

All the same, it makes me very, very happy to not live in a country that has to deal with that. The First Amendment's wisdom shines through very clearly here: don't mix the power of government with religious practices; doing so contaminates both. (Gasoline is good -- it is a powerful fuel and an excellent solvent for petroleum-based gunk. Wine is good -- it is mildly intoxicating and has wonderfully subtle tastes. But they shouldn't be mixed together in any context I can think of. So too with state power and religion.) So I have to wonder whether a U.S. court, if confronted with a "religious arbitration agreement," would enforce the result of that agreement. I once had deeply religious clients come to me looking for a lawyer to represent them in a "Christian Court," which upon closer examination turned out to be an arbitration agreement offered by the pastor of their church that would allow him to decide a property ownership dispute, "following and consistent with the teachings of the Christ." (Since one of the disputants was the pastor's cousin, I didn't think it was a good idea.)

U.S. courts have substantial amounts of civil law imperatives that need to be enforced regardless of litigants' religion -- for instance, a child custody dispute must be resolved with the best interests of the child in mind, and the results of a "religious arbitration" of a custody dispute would likely bow to the civil law of general application, meaning if the child's best interests were contrary to the religious court's decision, the religious court's decision would not be enforced. So given that, it seems to me that while a court's instinct would be to look to any sort of readily-available dispute resolution procedure, a thoughtful court would need to look very closely at the nature of the dispute, the generally-applicable law concerning that subject matter, and whether the parties to the dispute had really voluntarily submitted to that dispute resolution procedure. Willy-nilly accepting the pronouncements of a cleric as "binding arbitration awards" would be a big step towards enshrining such a religious forum as a "supplemental court," and thereby establishing it as a state religion.

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