I saw this article on Glenn Beck’s news site, but I never thought it’d make it to any site even slightly more reputable. Nevertheless, here it is on Politico, a site that manages to satisfy that criterion sometimes.
Apparently, an Islamic arbitration tribunal (an a’lim) conducted an arbitration according to Islamic law. This is entirely unsurprising. The panel issued an arbitration award purporting to resolve a dispute between the elders of a local mosque but — here’s where it gets tricky — we’re not sure whether the arbitration is over. So, a Florida state court judge deciding the matter held that that specific question would be resolved according to Islamic law (pdf).
Glenn Beck, of course, summarily flipped out. And the Republican Party’s newest, fastest-growing cottage industry — “getting paid to yell about Muslims” — took it as another reason to fast-track a Florida law that would ban Islamic from any forum, even a private court dispute.
This panic, and the expected over-reaction, suffer from about as many flaws as you can imagine. First, and as a threshold matter, as Judge Nielsen took pains to indicate, religious disputes in religious organizations are generally resolved under religious law, with state and federal courts taking a prudent “hands-off” approach. There’s case law holding Christian patriarchs to canon law in resolving church disputes; why the Hell wouldn’t there be case law holding Muslim sheiks and imams to shar’ia law, in the same narrow arena?
But the problems run deeper than that. Lawyers who regularly handle the wars leading up to and the fallout following arbitrations — like yours truly — will tell you that arbitration is a creature of the parties’ creation. Courts increasingly let the arbitrators (and therefore, by proxy, the parties) decide the rules of the game, from whether the dispute is arbitrable to, in a recent decision out of the Second Circuit (pdf), whether the statute of limitations ran. When the arbitrators decide which law to apply, or limit the arbitration somehow — even if one party objects to the decision — they’re just following orders. They’re not surrendering to the applied law, or witnessing its dramatic takeover of the forum state’s court system. They’re doing their job, as the parties asked. Florida has no more surrendered to shar’ia law than New York has surrendered to FINRA. And the latter is a far more present and therefore terrifying animal, I assure you.
True, one party here is having shar’ia “forced” on them, a prospect fraught with some superficial discomfort. But the scope of the force is both incapable of generalization — under this rule, if you don’t want shar’ia law to govern your dispute, well, don’t found a mosque! — and boring for its regularity. People lose choice of law disputes all the time. Your remedy is the courts, not the media.
Finally, even if we assume that it’s a “problem” for courts to apply shar’ia law (1) in a religious dispute and (2) in an arbitration and (3) where it’s fair to assume it applies, the cure, here — a total ban on shar’ia from any court dispute — is worse than the poison. Mostly because it’s unconstitutional. For some, arbitration under shar’ia will be a benefit. Like the opposite party in this case. And the instant we deny a party access to that right, we’ve denied them something — the entitlement to arbitration under religious law — on the basis of religion.
Now I’m no big city lawyer, but that seems like it’s a problem. And I expect the religious right would agree, if they had a shred of decency, or even a superficial interest in larger principles.