Enforcing contracts or wills that call for courts to interpret Islamic law

[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.]

Besides writing contracts or wills that reflect Islamic law concepts — for instance, a contract that bars one party from selling alcohol, or that uses some other financial mechanism as a substitute for charging interest — parties can also write contracts or wills that call for the interpretation and application of Islamic law by courts (rather than just by arbitrators). Thus, a contract among the founders of a mosque might call for interpretation under Islamic law,[31] or a man’s will might call for his property to be divided under Islamic law.[32]

Here, too, there is well-settled American law — but under this law, these contracts are not enforceable, although merely religiously motivated contracts (see Part II) are enforceable.[33] The difference is that, under the Supreme Court’s Establishment Clause precedents, secular judges are not allowed to interpret Islamic law (or Jewish law or Biblical law), and to decide what it “really” means.

If parties want to order their relationships through religious legal rules, they can set forth the rules themselves in their contracts or wills, for instance by saying, “I leave my daughter Deborah 1/3 of my property and my son Samuel 2/3.” There is no antidiscrimination rule for testators, obligating them not to play favorites among their children, whether based on sex or any other reason.

Likewise, parties can provide for the contract or will to be authoritatively interpreted by some private party. They can, for instance, say, “I ask the head Imam of [a particular named mosque] to arrange for the distribution of my property according to Islamic law.” Or they can provide that disputes under an agreement be arbitrated by a particular Islamic arbitral organization. But parties cannot ask secular courts to interpret Islamic law themselves, by saying, “I leave my property to be distributed according to Islamic law.”[34]

Again, though, there is no reason to create any special rules for sharia here. First Amendment law already precludes secular courts from deciding what Islamic law calls for — just as it precludes them from determining what other religions’ rules call for.

* * *

[31]. See William R. Levesque, Appeals Court Won’t Stop Hillsborough Judge From Considering Islamic Law, Tampa Bay Times (Oct. 24, 2011, 12:40 PM), http://www.tampabay.com/news/courts/civil/appeals-court-wont-stop-hillsborough-judge-from-considering-islamic-law/1198321; Eugene Volokh, “The Case Should Proceed Under Ecclesiastical Law” / Jews, Ketubahs, and Gets, The Volokh Conspiracy (Oct. 26, 2011, 10:14 AM), http://www.volokh.com/?p=52120.

[32]. See supra note 18.

[33]. Jones v. Wolf, 443 U.S. 595 (1979); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969); Central Coast Baptist Ass’n v. First Baptist Church of Las Lomas, 65 Cal. Rptr. 3d 100, 116-17 (Ct. App. 2007).

[34]. I’ve sometimes heard people argue that such contracts (or wills) can be enforced if the court seeks only to determine what the parties (or the testator) understood “Islamic law” to require, rather than what Islamic law supposedly actually requires. But I don’t think this can work.

If the question is, “What did the decedent understand Islamic law [or Presbyterian teachings] to require?,” there will rarely be clear evidence to answer that question based on the decedent’s personal views (e.g., a letter in which he explained his views of his religion as applied to the particular will). Rather, there will be evidence that the decedent belonged to some particular denomination, and that that the religious law of that denomination is this-and-such — plus likely rival views from some more “reformed” or more “orthodox” branch of the denomination saying that the true religious law of that denomination is something else. This is not the sort of “neutral principle” inquiry that “promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice,” which was endorsed by Jones, 443 U.S. at 603. Rather, it’s closer to the inquiry into “religious doctrine and practice” condemned by Presbyterian Church, 393 U.S. at 449.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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Sasha Volokh · February 18, 2014