A pretty good way to generate an outcry, as the archbishop of Canterbury learned in Britain recently, is to say that a Western legal system should make room for Shariah, or Islamic law. When the archbishop, spiritual leader of the world’s 80 million Anglicans, commented in a radio interview that such an accommodation was “unavoidable,” critics conjured images of stonings and maimings, overwhelming his more modest point.
The archbishop, the Most Rev. Rowan Williams, did not propose importing Shariah into the criminal law and was referring mostly to divorces in which both sides have agreed to abide by the judgment of a religious tribunal. His proposal was groundbreaking only in extending to Islamic tribunals in Britain a role that Jewish and Christian ones have long played in the judicial systems of secular societies. Courts in the United States have endorsed all three kinds of tribunals.
In 2003, for instance, a Texas appeals court referred a divorce case to a local tribunal called the Texas Islamic Court. In 2005, the federal appeals court in New Orleans affirmed an award in an employment arbitration by the Institute for Christian Conciliation, which uses Biblical teachings to settle disputes. And state courts routinely enforce the decisions made by a Jewish court, known as a bet din, in commercial and family law cases.
The outcry in Britain was apparently something of a visceral reaction to aspects of Islamic law, though the archbishop himself condemned what he called the inhumanity of “extreme punishments” and some Islamic countries’ “attitudes toward women.”
The larger question, legal experts in the United States said, is whether government courts should ever defer to religious ones. The answer may depend on whether the people involved authentically consented to religious adjudication, whether they are allowed to change their minds and whether the decisions of those tribunals are offensive to fundamental conceptions of justice.
All of that, said John Witte Jr., a law professor at Emory University, “is the big frontier question for religious liberty.”
The archbishop speaks in sonorous circumlocutions and he was not a model of clarity when he was interviewed by BBC radio on Feb. 7. Even his followers had a hard time untangling just what he meant.
