N.C. House Bill 695, titled the Family, Faith and Freedom Protection Act of 2013 and passed by the N.C. Senate, has attracted scrutiny because of language restricting access to abortions. But the bills original purpose, to protect rights and privileges granted under the U.S. and N.C. Constitutions in the application of foreign law, remains at the top of the bill and passed both chambers with little examination.
It is a euphemistic effort to ban Shariah law from North Carolinas courtrooms. Efforts in other states that explicitly ban Shariah, rather than foreign law, have been appropriately rejected for being unconstitutional, thus sponsors now use neutral language. But the clumsy revision produced a bill that could infringe upon the religious freedoms of many North Carolinians. In banning foreign law, the bill could also interfere with Jewish adherence to the laws of Israel and Catholic commitments to dictates from the Vatican.
Why would North Carolina legislators pursue such a sweeping intrusion into religious liberties? The bill is just the latest in a multistate effort to rid American courts of Shariah, with seven states having passed similar laws and analogous bills introduced in 24 more. Sponsors of House Bill 695 warned that Shariah law is a very, very present threat that must be dealt with, and that the U.S. Constitution is in grave danger. These admonitions, which echo the stated motivations behind identical bills in other states, are based on a report titled Shariah Law and the American Courts that is being aggressively marketed in the blogosphere. The report lists specific state court rulings in which it claims that Shariah law has entered into state court decisions, in conflict with the Constitution and state public policy.
A serious review of those cases, however, reveals that they vindicate, rather than suppress, constitutional rights. In fact, they are a reason to be very proud of American law and American courts.
The cases listed in the report do not center on foreign or Shariah law. Rather, they involve contracts that make reference to foreign or Shariah law. This distinction is enormous. The courts are not imposing foreign or religious statutes upon unwilling Americans; they are enforcing contracts that individuals have deliberately designed and tailored to meet their needs and ideals.
Shariah is involved in these cases only because the contracts at issue were drafted by devout individuals who wanted to order their personal lives in accordance with their faith. One of the great virtues of American law is that it allows people to incorporate their religious faith into their most personal affairs. This freedom of contract is thus intertwined with Americans freedom of religion.
The details of the cases illustrate how the parties used contracts for religious expression. Some involve employment contracts between an Islamic organization and its clergy that stipulate that internal disputes will be resolved in accordance with the organizations faith. Some involve divorce settlements and documents involved in traditional Islamic weddings. Others concern distributions of a deceaseds property, loans given in accordance with the rules of Islamic finance and basic arbitration agreements in which parties agree to have disputes resolved by religious leaders.
Certainly, Americas Muslims are not the only Americans who incorporate personal faith into their affairs. Religious organizations of all stripes use legal documents that advance a variety of personal, financial, and organizational religious objectives. Family law is replete with documents concerning marriage, child custody and property bequests in which individuals voluntarily incorporate religious rules and traditions.
When I express concern that Bill 695 could affect the states Jewish community, I am not referring to far-fetched hypotheticals. My own wedding document and my synagogues contract with our rabbi both include provisions directly parallel to those decried by the report that motivates the bill.
It is distressing to see legislators aiming to stifle individual religious freedoms, especially with clumsy wording that might have unintended consequences. Hopefully, North Carolinas legislators and Gov. Pat McCrory will have the good sense to ensure that Bill 695 advances no farther. Or better, North Carolinas lawmakers could give serious scrutiny to the nations anti-Shariah laws. They could recognize that such efforts are motivated by sloppy research, founded on imprecise and reckless thinking, and seek only to limit individual autonomy and the expression of personal faith.
Barak Richman is Bartlett Professor of Law and Business Administration at Duke University, a senior fellow at the Kenan Institute for Ethics and president of Beth El Synagogue in Durham.