What Is The Place Of Sharia Law In The United States?
There is no reason for any foreign law to contradict, circumvent or supersede the laws of the United States or the laws of the independent states. However, there are times when international laws should be considered.
Within the United States, Article IV, Section 1 is often referred to as the "Full Faith and Credit Clause" of the United States Constitution. This essentially means that acts that fall legally within the laws of one state are recognized in any other state. If a marriage takes place in another state then that marriage is accepted as being legal in another state if it met the requirements of the law where the marriage took place. This then allows that couple that now resides in another state to seek a divorce, etc. This is true even if a couple is "common law" married in another state (that it was legal in) when the state they now reside in does not recognize "common law" marriage. As one law professor said in lecture, even if a couple are " common law" married there is no "common law" divorce.
This then brings about the question as to whether a couple married in a foreign country (including one that practices Sharia law) might be divorced or even the marriage annulled as residents of the United States. Whether or not we may as a people not want to consider foreign laws, sometimes it is necessary. It would not be a matter of considering whether the procedure from the foreign country should be used to grant a divorce or annulment but whether that marriage in the foreign country is considered valid here.
In 2011, the Center for Security Policy published, "Shariah Law and American State Courts",
which gave an overview of Sharia law and a factual background regarding the proceedings of several cases in which Sharia law was inappropriately considered. Most of these were at the trial court level and were reversed at the appellate level. Most of the cases dealt with family law and a few with contract law. Much of the problem arose because the parties used Sharia law as a context for disputes, but when it was brought to an American Court, the Sharia components were not in line with American family law, contract law, etc. As an example, a Washington State appellate case from 2010 involved a Shariapre-nuptial agreement called a mahr. The agreement was in Farsi, which the husband signed but could not read nor understand. Though the trial court found the mahr enforceable the appellate court found it was not, as it lacked important components under Washington State contract law.
I have had a few Islamic clients and, while I am Christian, I have a duty to assist all clients and to consider as much as possible a respect of their individual beliefs. As a for instance when assisting a businessman that is Islamic, they do not pay or charge interest. So it may be necessary to consider how he or she may conduct business or purchase or lease a building.
While a part of Sharia law is in fact considered law, much of it is also a set of beliefs. In the past many years Sharia banking has become available for Muslims living in Western countries. A person practicing Islam might therefore contact a bank that provides for Sharia banking in order to buy a home. Because a Muslim would not pay interest they are left with the prospect of paying cash for a home or using some means that does not conflict with their beliefs. One method might be to have the bank purchase the home, add a profit to the purchase price (the profit is not itemized to the buyer) and the buyer allowed to make installment payments. However, this also means that there cannot be late fees so the bank must make allowance for that should it occur while protecting the interest of the bank.
I have been doing a historical read through the Bible in one year and recall some interesting verses under Mosaic law. Deuteronomy 23:19 says, "You shall not charge interest on loans to your brother, interest on money, interest on food, interest on anything that is lent for interest." Deuteronomy 15:1 says, "At the end of every seven years you shall grant a release". For many reasons such laws are no longer practiced, especially the law concerning Jubilee (release of debt after every seven years). Such reasons include all twelve Jewish tribes not living together or the Sanhedrin no longer existing. While such laws are not an issue in America it would be interesting how those following Mosaic law might adapt to follow United States laws.
I think that much of the concern is that Sharia Courts or ruling bodies might become available to those that wish to adhere to it within the United States and that it may influence or circumvent the laws of the Federal and State governments. The above-mentioned report suggests that Sharia law has already influenced several American Courts. Some of Sharia laws include criminal statutes, which are harsher than what the Constitution allows. Civic groups or Christian churches have their own governance and set of laws; however the laws of the several States and the Federal government supersede those laws whenever they come before a civil or even criminal court.
As an attorney I attempt to respect each client's customs or beliefs and counsel them regarding the law and whether such beliefs are in conflict with the law. If there is a conflict then we will attempt to find a solution that allows them to adhere to their beliefs but to fall within the applicable laws.
If you have a conflict with laws you should seek the counsel of an attorney. The Alabama State Bar has a referral service or you may seek an attorney through other means.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist. "No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."
Ronald A. Holtsford, Esq.
Ronald A. Holtsford, LLC
7956 Vaughn Road, Box #124
Montgomery, AL 36116