[This week, I’m serializing my just-published article, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014); you can see the posts so far here.]

People sometimes write contracts or wills motivated by their desire to follow or accommodate their felt obligations under Islamic law. A union and a business might, for instance, negotiate a contract that gives a day off for a Muslim holiday.[15] A lender and a borrower may structure a financial transaction in a way that complies with Islamic law related to financing and insurance, but still gives the lender the economic payoff it seeks.[16]

People may contract for binding arbitration of their agreements under Islamic law.[17] A father may leave a will that, following Islamic law, leaves each daughter only half as much as it leaves each son.[18] A groom may enter into a customary Islamic agreement that commits him to pay a “mahr,” an agreed-on amount of money to be given his future wife in the event of a divorce.[19] And these contracts or wills can then be enforced by secular, American courts.

As some of the footnotes above note, many people have expressed concern about the enforcement of such arrangements, arguing that this is an example of “stealth Sharia” making its way into American law, or arguing that Muslims are often pressured by their communities or families into creating such arrangements. But all we see here is the application of American secular law, and in particular American principles of freedom of contract and freedom of testamentary disposition. Those principles should apply as much to Muslims as to Jews, Christians, or members of other religions.

Jews and Christians may enter into contracts providing for religious arbitration of their disputes[20] (including in situations where there is a good deal of community pressure to enter into such contracts). Jews and Christians may negotiate with employers to get days off on their religious holidays, such as Rosh Hashanah or Good Friday.[21]

Jews and Christians may organize their investments in ways influenced by their religions, for instance investing in funds that promise not to participate in projects that the religion views as sinful.[22] A Jewish couple may agree that, if the husband gets a secular divorce, he will nonetheless pay the wife $100/day until he gives her a Jewish religious divorce.[23] Muslims are just as entitled to take advantage of the American tradition of freedom of contract as are the nonreligious or members of other religions.

Of course, not all contracts are enforceable. No American court would enforce a contract provision requiring that someone found guilty of theft by an arbitration tribunal have his hand chopped off. American courts won’t order an action that constitutes a crime (in this instance, the crime of mayhem). Indeed, they won’t enforce contractual provisions that call for unreasonable penalties rather than compensation, even when only monetary penalties are at issue.[24]

Likewise, a prenuptial contract that waives one party’s child support obligations, or provides for a particular decision about future child custody, is generally not enforceable.[25] Most state courts take the view that such contracts between spouses cannot decide the rights of children, who are not parties to the contract.[26] Similarly, many state courts don’t allow for arbitration of child custody questions.[27]

It is also possible that an arbitration decision might be invalidated if there is evidence that the arbitrators discriminated based on race, religion, or sex against one of the parties to the arbitration.[28] In some situations, rules of Islamic and Orthodox Jewish law can call for discriminatory treatment of witnesses based on sex (and of course other arbitrators can discriminate for their own reasons, quite apart from religion).[29] If such rules are applied in a way that affects the outcome of an arbitration, then it is possible that secular courts will refuse to enforce the result of the arbitration.[30]

American law, then, already provides tools for refusing to enforce contracts that are deemed improper; there is no need for some special contract law rule focused on Sharia. Religious motivation cannot validate contracts that are invalid for the reasons described above. But neither should religious motivation invalidate contracts that would otherwise be valid.

So the proper approach to Sharia-motivated contracts or wills should be simple: continue to follow traditional American contract law principles. The strong presumption in American law is freedom of contract and freedom to dispose one’s property by will; an Islamic motivation, or any other religious motivation, doesn’t make a contract or a will unenforceable. But if the contract or will violates established public policy principles, for instance if it calls for improper remedies (the chopped-off hand), or violates family law limitations on prenuptial agreements, then it is unenforceable — again, without regard to its religious motivation.

* * *

[15]. See Tyson Plant Drops Labor Day for Muslim Holiday, Fox News (Aug. 5, 2008), http://www.foxnews.com/story/2008/08/05/tyson-plant-drops-labor-day-for-muslim-holiday (reporting on the incident, and reporting on people criticizing this as alleged intrusion of Sharia into American law); Bob Unruh, Tyson Chicken Replaces Labor Day With Muslim Eid al-Fitr — Workers Wanted Islamic Religious Event Recognized, Neville Awards (Aug. 2, 2008), http://www.nevilleawards.com/stealth_sharia7.shtml (criticizing this as supposed “stealth Sharia”); Eugene Volokh, Tyson Plant Drops Labor Day for Muslim Holiday, The Volokh Conspiracy (Aug. 6, 2008, 5:42 PM), http://www.volokh.com/posts/1218058942.shtml.

[16]. See Murray v. Geithner, 763 F. Supp. 2d 860 (E.D. Mich. 2011); Eugene Volokh, Lawsuit Alleging That AIG’s Use of Sharia-Compliant Financing Violates the Establishment Clause Survives a Motion to Dismiss, The Volokh Conspiracy (May 27, 2009, 6:55 PM), http://www.volokh.com/posts/1243464959.shtml; see also creeping, Bahraini Bank Buying “Shariah-Compliant” Real Estate … in the U.S., Creeping Sharia (Nov. 28, 2011), http://creepingsharia.wordpress.com/2011/11/28/bahraini-bank-buying-shariah-compliant-real-estate-in-the-u-s/.

[17]. See Eugene Volokh, Religious Arbitration of Civil Disputes, The Volokh Conspiracy (Sept. 11, 2009, 2:30 PM), http://volokh.com/posts/1252693856.shtml.

[18]. Alkhafaji v. TIAA-CREF Individual & Inst. Servs., 10 Pa. D. & C. 5th 449, 462-63 (Pa. Com. Pl. Jan. 14, 2010), rev’d, 24 A.3d 454 (Pa. Super. Ct. 2011); Eugene Volokh, Will Calls for Distribution “According to Islamic Laws and Sharia”; Pennsylvania Court Gives Twice as Much to Each Son as to Each Daughter, The Volokh Conspiracy (Apr. 29, 2011, 5:44 PM), http://www.volokh.com/2011/04/29/will-calls-for-distribution-according-to-islamic-laws-and-sharia-pennsylvania-court-gives-twice-as-much-to-each-son-as-to-each-daughter/.

[19]. creeping, Islamic Divorce in the U.S., Creeping Sharia (Apr. 17, 2011), http://creepingsharia.wordpress.com/2011/04/17/islamic-divorce-in-the-u-s/.

[20]. See, e.g., Gen. Conference of Evangelical Methodist Church v. Evangelical Methodist Church of Dalton, Ga., Inc., 807 F. Supp. 2d 1291 (N.D. Ga. 2011) (Christian arbitration); Glatzer v. Glatzer, 905 N.Y.S.2d 607 (App. Div. 2010) (Jewish arbitration); Spivey v. Teen Challenge of Fla., Inc., 122 So.3d 986 (Fla. Ct. App. 2013) (Christian arbitration); Glenn G. Waddell & Judith M. Keegan, Christian Conciliation: An Alternative to “Ordinary” ADR, 29 Cumb. L. Rev. 583 (1998).

[21]. See, e.g., Charlotte Anthony, Rosh Hashanah: At New Year, Jews Grapple with Work-Faith Conflicts, JWeekly (Sept. 13, 2012), http://www.jweekly.com/article/full/ 66457/at-new-year-jews-grapple-with-work-faith-conflicts/.

[22]. See, e.g., Ezra Reichman, Jerusalem — First-Ever Halacha-Compliant Approval for Investment Firm, Vos Iz Neias (Mar. 22, 2009, 8:47 AM), http://www.vosizneias.com/29170/2009/03/22/jerusalem-first-ever-halacha-compliant-approval-for-investment-firm/; New Look at Ethical Investing, The Lutheran (July 2005), https://www.thelutheran.org/ article/article.cfm?article_id=5179.

[23]. See Light v. Light, No. NNHFA124051863S, 2012 WL 6743605, at *6 (Conn. Super. Ct. Dec. 6, 2012) (upholding such an agreement).

[24]. See, e.g., Crosby Forrest Prods., Inc. v. Byers, 623 So. 2d 565, 567 (Fla. Dist. Ct. App. 1993); Restatement (Second) of Contracts § 356(1) (1981).

[25]. See, e.g., Grimes v. Grimes, 621 A.2d 211, 213-14 (Vt. 1992); Mendoza v. Mendoza, 870 P.2d 421, 423 (Ariz. Ct. App. 1994).

[26]. See, e.g., Grimes, 621 A.2d at 214.

[27]. Elizabeth Jenkins, Annotation, Validity and Construction of Provisions for Arbitration of Disputes as to Alimony or Support Payments or Child Visitation or Custody Matters, 38 A.L.R.5th 69 (current through 2009).

[28]. See, e.g., Betz v. Pankow, 20 Cal. Rptr. 2d 834 (Ct. App. 1993). I say “might” because the matter seems not to be settled under American law.

[29]. See Eugene Volokh, Orthodox Jewish Arbitrations, Islamic Arbitrations, and Discrimination Against Witnesses Based on Sex or Religion, The Volokh Conspiracy (Oct. 21, 2010, 6:05 PM), http://www.volokh.com/2010/10/21/orthodox-jewish-arbitrations-and-discrimination-against-witnesses-based-on-sex-or-religion/.

[30]. Id. (citing Betz, 20 Cal. Rptr. 2d at 837).